THE INFORMATION AND CONSULTATION REGULATIONS – WHITHER STATUTORY WORKS COUNCILS? BY ROGER WELCH
Roger Welch is a Principal Lecturer in Law at the University of Portsmouth. He has written extensively on employment law matters – particularly in the context of trade union rights. He is an active member of his union, NATFHE, and for almost 20 years was the secretary of Chelmsford Trades Union Council. He would like in particular to thank his friend and colleague, Steve Williams. Steve is a Principal Lecturer in Employee Relations at the University of Portsmouth, and this paper draws on empirical research that they jointly conducted in 2003, and is, in part, based on an article co-authored for the Cambrian Law Review, entitled The Information and Consultation Regulations: Much Ado About Nothing? He would also like to thank members of the Institute’s Publications Committee for their comments and suggestions on the initial draft. Whilst these have improved the paper in various ways, any errors etc are entirely my responsibility. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the author. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement. ISBNs 0 9551795 0 5 978 0 9551795 0 1 April 2006 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 e-mail office@ier.org.uk www.ier.org.uk printed by Upstream (TU) 020 7207 1560 £6.50 for trade unions and students £20 others THE
INSTITUTE OF
E M PLO Y M E N T RIGHTS
the information and consultation regulations – whither statutory works councils?
executive summary
by Roger Welch
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contents
executive summary
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CHAPTER ONE
introduction the background organisations covered by the ICE regulations
1 2 4
CHAPTER TWO
establishing information and consultation structures
8
employer-initiated negotiations negotiating an ICE agreement employee representatives and democratic accountability ballots
9 11 13 15
CHAPTER THREE
established collective bargaining arrangements and pre-existing agreements role of recognised unions undermining unrepresentative unions
17 17 19
CHAPTER FOUR
the statutory fallback provisions the standard information and consultation provisions
21 22
rights and duties of the parties
26
confidentiality rights to time-off detriment and dismissal enforcement provisions
26 28 29 31
contents
CHAPTER FIVE
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CHAPTER SIX
prospects and perspectives
the information and consultation regulations
proposals for reform
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33 37
endnotes
40
Institute publications
44
executive summary
â– In April 2005, the Information and Consultation Regulations (the ICE Regulations) which transpose the EC Directive on Information and Consultation in the Workplace into UK law came into effect. Consequently, between April 2005 and 2008 onwards many employers should find themselves legally obliged to consider putting in place arrangements to enable them to inform and consult with their workforces or with their representatives. The ICE Regulations only apply to organisations of a particular size. From 6 April 2005, they applied to organisations with 150 or more employees; from 6 April 2007, they will apply to organisations with 100 or more employees; and from 6 April 2008, to those with 50 or more employees. However, the DTI has estimated that, as the Regulations do not apply to employers with less than 50 employees, 97 per cent of enterprises will remain outside of their scope.
â– The essential problem with the Regulations is that negotiations to establish information and consultation processes will only become obligatory for an employer if such negotiations are triggered by written requests from at least 10 per cent of the employees in the organisation. In the absence of any trade union presence this may well not occur. However, where a non-recognised union has members at a
executive summary
â– The significance of the ICE Regulations is that, potentially, for the first time in the UK, employers will be legally obliged to inform and consult with their employees at enterprise or workplace level in collectivist structures on a whole range of issues. Indeed, there has been some expectation that the ICE Directive will provide the framework for the setting up of statutory works councils with similar powers and functions to works councils that have long been part of the industrial relations scene in other Western European countries. However, in practice, there is a very real danger that in many organisations the Regulations will not result in any initiatives to engage in consultations with a workforce or its elected representatives, let alone the setting up of a fully fledged works council.
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workplace it may find it advantageous to organise those members to trigger negotiations for an ICE Agreement to establish a works council. If union candidates are elected as the employee representatives on such a body this would give the union a representative foothold in the organisation. This could constitute a stepping stone to full recognition for collective bargaining purposes. â– The Regulations do not directly take into account existing collective bargaining arrangements in any way. Arguably, unless the scope of recognition is very limited, there is little or no advantage in a recognised union encouraging its members to trigger the mechanism for an information and consultation structure to be established. However, there is nothing in the Regulations to prevent an employer, possibly motivated by a desire to undermine existing collective bargaining arrangements, from effectively forcing a recognised union into negotiating on the establishment of a works council. The best way for a union to pre-empt such a development is to seek to adapt its recognition agreement so that it meets the criteria for a valid preexisting agreement that satisfies the requirements of the Regulations.
the information and consultation regulations
â– The Regulations do contain statutory fallback provisions which, if they apply, will require an employer to inform and consult with what will be, in effect, a statutory works council. Whilst the fallback provisions are structurally minimalist, the content of the duties to inform and consult are wider than the statutory duties to consult on collective redundancies and business transfers, and these provisions may provide advantages even for a recognised union.
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â– Reforms are proposed to make the ICE Regulations more effective in complementing or facilitating union recognition, and in ensuring employers are obliged to establish works councils with effective powers in those many workplaces where unions have no presence whatsoever. In particular, where an independent recognised trade union represents a majority of a workforce, duties on the employer to inform and consult should be with the elected or appointed representatives of that union. Where an employer does not recognise a union it should be obliged to conduct a ballot for the election of negotiating representatives. The ballot should be conducted on a similar basis to ballots for statutory recognition. In particular, independent trade unions with members in the workplace should have rights of access during the ballot process. Similarly, this should apply to the ballot for election of information and consultation representatives.
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