What Are The Employer's Obligations With Regards To Employee Representatives?

The Employee (Information and Consultation) Regulations (S.L 452.96) (the 'Regulations') makes provision for the right to information and consultation of employees, including the election of an employee representative to represent categories of employees which do not fall under a trade union. It also gives effect to the relevant provisions of Directive 2002/14/EC.¹

These Regulations bind employers to ensure that they make the practical arrangements in order to allow employees to be able to effectively exercise their right to information and consultation by setting out the minimum provisions which must be adhered to.

Who do these Regulations apply to?

The Regulations applies to companies employing 50 employees and over, from the 23rd March, 2008 onwards.

A company (or undertaking as referred to by the Regulations) is defined as any public or private undertaking carrying out an economic activity, whether or not operating for gain. Thus, these Regulations apply to a wide range of employers, from private companies to voluntary organizations not operating for gain, who have the general duty to inform, consult and co-operate with their colleagues, employees and their representative/s

What is the right to information and consultation of employees?

The employer shall make the practical arrangements necessary at the appropriate level to allow his employees to effectively exercise the right to information and consultation in accordance with the Regulations.² This is done through the selection of an employee representative. Here, the law makes it clear that the employer and the employee representative work in a spirit of cooperation and with due regard for their reciprocal rights and obligations. They must also consider the interests of both the company and the employees.

An employer must provide information to the trade union and/or employee representative/s on the following topics:

1. The recent and probable development of the company's activities and economic situation;
2. The situation, structure and probable development of employment within the company, including any anticipatory measures envisaged, such as where there is a threat to employment; and
3. Information and consultations on decisions likely to lead to substantial changes in the work organisation or contractual relations³.

All this information must be given at such time, in such fashion and with such content as are appropriate to enable, in particular, the information and consultation representatives to build an opinion and, where necessary, to prepare for consultation.

When an employer consults on points 2 and 3^[AB1] listed above, the employer must ensure that the consultation:

• is based on the information passed on to the employee representative/s by the employer as well as the representative's opinion which may have been expressed to the employer;
• enables the employee representative to meet the relevant level of management depending on the subject being discussed; and
• in relation to matters falling within point 3 above is made with a view to reaching agreement on decisions within the scope of the employee's powers.

Where not all employee categories are covered by a trade union, the employer must communicate with both the representatives of the trade unions and the elected employee representative/s. Furthermore, if previously unrepresented categories of employees start being represented by a recognized trade union, the term of office of the employee representative of such category of employees shall be automatically terminated.

How is an employee representative chosen?

Where there is no recognized trade union, the representatives of the employees are elected or appointed by means of a secret ballot from amongst all employees. The employer must assist employees with electing an employee representative in a fair manner. The employer should make any arrangements which are reasonably practicable to ensure that the secret ballot is fair and that the votes given at the ballot are accurately counted. Moreover, the employer must inform the Director of the Department of Industrial and Employment Relations with the procedure which will be followed at least one (1) month before the projected date of the ballot.⁴

Where some categories of employees within a company are covered by a trade union, only employees within the unrepresented categories of employees are entitled to take part in the secret ballot to select the representative/s.

Any employee who is not within his probationary period may apply to be elected as the employee representative and should there only be one candidate on the date of closing of submissions, such candidate will be automatically elected.

Once the ballot is closed, at the end of the period allowed for the submission of nominations to stand as employee representative candidates, the results are confirmed. If only one employee stands as a candidate, such employee shall be considered to be automatically elected and shall be appointed as the information and consultation representative from the date of the end of the period set by the employer for the submission of such nominations.

However, the situation may arise that no employee in that unrepresented category submits a nomination for candidature to take part in a ballot when called to do so by the employer. In such case, the employer must inform the employees in that category, at three (3) month intervals from the initial call, of their right to have a representative and to invite them to submit nominations for candidates to take part in such a ballot. This must be done within two (2) weeks from the date of such communication. Then, if nominations are submitted within this period, the necessary arrangements shall be made to hold such a ballot within one (1) month from the closing date for nominations. The normal process of elections will subsist.

In any case, the employer shall take the necessary measures to hold another ballot in the event of the resignation of an elected or appointed representative or on the expiry of a representative's term of office.

The number of representatives elected must be of one (1) representative per unrepresented category and such elected representatives shall hold office for three (3) years from the date of election. In the event of resignation or expiration of the three (3) year term, the employer must hold another ballot to elect new representatives.

What are an employer's obligations following election of a representative?

Following the election, the employer must inform employees in writing of the identity of their representative. Secondly, he must hold a first information and consultation meeting within two (2) months of the election or appointment date. Lastly, the employer must hold a minimum of at least one (1) meeting within six (6) months after the date of each preceding meeting.

Is there a complaints procedure in place?

A complaint may be presented to the Director on any matter related to the appointment or election of the information and consultation representatives or the holding of the ballot. This must be done within twenty-one (21) days of the date when the alleged infraction occurred. Where the Director finds the complaint well-founded, he shall make any order which, in his opinion, addresses the situation, including requiring the employer to arrange for the election or appointment of information and consultation representatives within such period as that order shall specify as appropriate. Such order shall be final.

The decision of the Director on any matter related to the holding of a ballot and the representation of employees in a category of employees not represented by are cognized trade union shall be complied with within any timeframe specified by the Director and any such decision shall be final.

Is the employee representative bound by confidentiality?

Any person to whom the employer entrusts any information or document on terms requiring it to be held in confidence, shall not disclose that information or document except in accordance with those terms. This obligation to comply is a duty owed to the employer and a breach of the duty is actionable as follows.

An employer is not required to disclose any information to a representative under the Regulations where the nature of the information would harm the functioning of or would be prejudicial to the company.⁵ Where there is a dispute concerning whether any information is to be deemed as sensitive and thus should not be disclosed to the representatives, this may be referred to the Industrial Tribunal.

Therefore, the recipient whom the employer had entrusted with the confidential information or document may refer the dispute to the Industrial Tribunal for a declaration as to whether it was reasonable for the employer to require the recipient to hold the information or document in confidence. The Industrial Tribunal will then decide according to objective criteria, whether the information would seriously harm the functioning of the employer.

If the Industrial Tribunal makes a declaration that the disclosure of the information or document in question would not, according to objective criteria, seriously harm the functioning of, or be prejudicial to the employer, the Industrial Tribunal shall order the employer to disclose the information or document. The order shall specify:

1. the information or document to be disclosed;
2. he recipient or recipients to whom the information or document is to be disclosed;
3. any terms on which the information or document is to be disclosed; and
4. the date before which the information or document is to be disclosed.

An employer may also disclose information to the representatives and require that such is to be held in confidence and should not be disclosed. In this case, an application may also be made to the Industrial Tribunal for a declaration as to whether it was reasonable for the employer to require the information to be kept in confidence.^[AB2]

Is the employee representative protected from an unfair dismissal case?

An employee representative or a candidate, on being elected, has the right not to suffer any detriment, including dismissal by any act or deliberate failure to act by the employer, when

• the employee performed any functions or activities as such a representative or candidate and/or
• the employee or a person acting on his behalf made a request to exercise an entitlement conferred on the employee or proposed to do so as employee representative.

However, where the reason for the subjection to detriment, including dismissal, is that in the performance, or purported performance, of the employee's functions or activities, he has disclosed any information or document in breach of the duty of confidentiality, the employee representative is no longer protected.

The following examples shall constitute cases of unfair dismissal of the employee representative, if the reason for the dismissal of the employee representative was merely because he/she:

1. took, or proposed to take, any proceedings before the Industrial Tribunal to enforce a right or secure an entitlement conferred on him by these regulations;
2. exercised, or proposed to exercise, any entitlement to apply or complain to the Director or the Industrial Tribunal conferred by these regulations;
3. stood as a candidate in an election in which any person elected would, on being elected, be an information and consultation representative;
4. influenced or sought to influence by lawful means the way in which votes were to be cast by other employees in a ballot arranged under these regulations;
5. voted in such a ballot;
6. expressed doubts, as to whether such a ballot had been properly conducted; or
7. proposed to do, failed to do, or proposed to decline to do, any of the things mentioned in paragraphs (d) to(g).

Footnotes

1. Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community – Joint declaration of the European Parliament, the Council and the Commission on employee representation

2. Article 3 of the Regulations;

3. Article 4 of the Regulations;

4. Article 5 (2) of the Regulations;

5. Article 7 of the Regulations;

[AB1]2 and 3?

[AB2]This is not clear to be at which stage is the Tribunal involved?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.