Statutory Consultation

State Boards

The Worker Participation (State Enterprises) Act 1977 provided for the appointment of worker directors on the boards of certain semi-state bodies. An amending Act in 1988, provided for participation below board level in semi-state companies and equivalent organisations.

Worker participation legislation has been expanded into specific sectors, including State Airports Act in respect of Aer Rianta and Aer Lingus, the Turf Development Act in respect of Bord na Móna, Postal and Telecommunications Services (Amendment) Act, 1999 and, Transport (Re-Organisation of CIE) Act, 1986 in respect of CIE.  Provision was also made for participation at board level in CIE, ESB, the Dublin Airports Authority an Post and other entities. Further provision was made by a combination of primary legislation and ministerial order.

The number of worker participant directors is capped at a certain percentage of the total board membership, generally a third at maximum. Participation below Board level applies in a wide range of public sector bodies. This includes in many of the principal agencies.

Where state sector employee shareholding schemes have been established, the members may nominate to the Minister, persons for appointment in certain state sector companies.  There is provision for the appointment of alternate directors.


Selection

The Minister usually determines the dates for the election of workers to State bodies.  He determines the number of worker directors.  Full-time employees over 18 years old may vote. The candidates to be worker’s directors must be under 65 years old.  They must be employed in the relevant body on a full-time basis and have at least three years’ service.  They must be nominated by a qualifying body, which may be a trade union or another representative body recognised for negotiation with the company.

The provisions for election are provided for in regulations. They include provision for postal voting arrangements.  The worker director who is chosen at the election is notified to the Minister, who is then obliged to appoint him or her.

Worker directors are entitled to the same fees and expenses as other directors.  Their existing remuneration should not be affected.  They may resign the office.


Sub-Board Participation

There is provision for sub-board participation by employees in many state sector bodies and enterprises. There is a Code of Practice under the Industrial Relations Act in relation to the duties, responsibilities, facilities and arrangements for participation by employee representatives.  State enterprises, to whom the legislation applies, must set out in their annual reports, the actions taken to introduce sub-board participation or any new participation scheme.

Employee representatives may be chosen by trade unions or may be otherwise representative of employees.  The number of representatives is to be consistent with the size of the enterprise and the number of employees.

A particular officer in the company, generally the company secretary, is responsible for the procedures required to give effect to participation.  Trade unions or other recognised bodies who represent a majority of the employees may apply to the officer requesting sub-board participation.

If the officer is satisfied that at least 15% of employees have signed the application, he must undertake a ballot, in order to ascertain if the majority favours participation at the main board (of directors) or sub-board level.  The ballot must be undertaken within a certain time limit. If more than half are in favour, then steps must be taken to put the measures in place.  No further poll may be taken within the following four years.


Consultative Arrangements

When the sub-board participation is in place, there are to be consultative arrangements, including the provision of information about decisions which affect the employees’ interests and an exchange of views and information between management and employee’s representatives. The employee representatives are to

  • represent their members fairly;
  • participate in negotiation and grievance procedures in accordance with any union-management agreement or the custom and practice of the employment;
  • cooperate with management in ensuring there is proper implementation and observance of the agreement between trade unions and management, using agreed dispute and grievance procedures and in particular, avoiding unofficial action contrary to the agreements;
  • act in accordance with the law and union rules (where applicable).

Employees must not be dismissed, penalised or disadvantaged for participating in the process.Employers must afford representatives, reasonable facilities to carry out their duties.  This includes reasonable time off.


Business Transfer I

On the transfer of business assets, the transferor and transferee are obliged to inform representatives of employees affected by the transfer of

  • the date or proposed date of transfer;
  • the reasons for the transfer;
  • the legal, economic and social implications of the transfer for the employees;
  • any measures envisaged in relation to the employee.

These obligations apply irrespective of whether the decision is taken by the employer or a holding or other superior entity or company.

Where there are no representatives, the employees concerned must be informed directly of the above particulars.

General information in relation to the above matters is likely to suffice. However, it must be accurate. If employees have no representatives, the transferor and transferee must give a written statement outlining the required particulars. A notice concerning the particulars must be made available, where employees can read them.


Business Transfer II

The requisite information must be given in good time before the transfer of business is carried out. What constitutes sufficient time, or “in good time” is not defined.Furthermore, where measures are contemplated in relation to the employees, the employer must consult with them in good time with a view to reaching an agreement.

The obligation applies, irrespective of whether the transfer is undertaken or caused to be undertaken by the employer itself, or by some other entity, which it does not control.  The fact that the employer may not be in a position to provide all the information is not sufficient excuse for failing to do so.

In some cases, the Acquired Rights Directive requires that states provide for the appointment of employee’s representatives for the purpose of information and consultation in a transfer of undertaking.


Collective Redundancy

A collective redundancy arises where there are dismissals by an employer, for reasons unconnected with the employee there are within a period of 30 days, is

  • not less than five on the establishment employing between 20 and 50;
  • not less than 10 in an establishment normally employing 200;
  • not less than 10% of the employees in an establishment normally employing at least 100] but not less than 300’ and
  • at least 30 in an establishment employing 300 or more.

The employer must, with a view to reaching agreement initiate consultations with the employees’ representatives. They may be union, staff association or representative body. If there is no such body, the employees may choose a representative to represent them. The procedures must be initiated as soon as possible. It should be at least 30 days before the first notice of dismissal.

The consultations shall include the possibility of avoiding the proposed redundancies, reducing the number of employees affected and mitigating the consequences and the basis on which it was decided that particular employees will be made redundant.


Information to be Provided on Collective Redundancy

The employees’ representatives must be given the following information

  • the reason for the redundancies;
  • the number, description and categories of employees proposed to be made redundant;
  • the number of employees
  • description of categories normally employed
  • the period during which it is proposed to affect the redundancies
  • criteria proposed for the selection of employees;
  • the method of calculating redundancy payments.

Information must be revealed that comes to hand where it was not initially available at the start of the process.

If there is a failure to comply with the legislation, the employees or their representatives may complain to the Workplace Relations Commission. The WRC may require compliance. It may award compensation of such amount as is just and equitable in the circumstances but not exceeding four weeks of remuneration.  Failure to comply is an offence.


Miscellaneous EU Derived Consulation

The European Company statute facilitates companies with commercial interests in more than one Member State the option of forming a European Company (or “SE”), the objective of which is to make it easier for such companies to operate across the EU. The employee involvement aspects  European Communities (European Public Limited – Liability Company) (Employee Involvement) Regulations 2006 (S.I No. 623 of 2006). They employee involvement Regulations transposes EU Directive 2001/86/EC into Irish law.

The European Cooperative Society Statute  enables the establishment of a European Cooperative Society (to be known as an “SCE”), the objective of which is to make it easier for cooperatives to operate across the EU. Use of the European Cooperative Society framework is optional. The employee involvement aspects of the Statute  are set out in the European Communities (European Cooperative Society) (Employee Involvement) Regulations 2007 (S.I No. 259 of 2007). The employee involvement Regulations transposes EU Directive 2003/72/EC into Irish law.

The European Communities (Cross – Border Mergers) Regulations 2008 (S.I No. 157 of 2008) transposed EU Directive 2005/56/EC. This Directive aims to facilitate cross-border mergers between limited liability companies in the European Union. The intention is to reduce the cost of such operations, to guarantee their legal certainty and to offer this option to the maximum number of companies. The provided for employee participation.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch. 15

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009  Ch.16 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009 Ch.14

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Acts

Worker Participation (State Enterprises) Acts 1977 and 1988

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislative Guides

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017

UK Periodicals and Reports

The Employment Law Review 8th  Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd  Ed. David Cabrelli 2016