Minister outlines government's likely approach to consultation legislation

In January 2003, at a trade union conference on the EU information and consultation Directive, employment relations minister Alan Johnson gave an initial indication of the government’s likely approach to implementing the Directive in the UK.

On 17 January 2003, the Trades Union Congress (TUC) held a conference at its London headquarters focusing on the UK implementation of the 2002 EU Directive (2002/14/EC) on national information and consultation rules (EU0204207F). In a speech to the conference, Alan Johnson, the minister of state at the Department of Trade and Industry (DTI) responsible for employment relations, outlined the government’s 'likely approach' to framing the necessary measures for transposing the Directive into UK law.

Mr Johnson said that, in the light of responses to the DTI discussion paper, High performance workplaces: the role of employee involvement in a modern economy (UK0208101N and UK0301108F), certain elements of the UK’s strategy for implementing the Directive were 'starting to take shape'.

According to Mr Johnson, the key to successful implementation would be 'flexibility that allows diversity'. He said that a key message coming out of the recent consultation was that the legislation should not damage existing good practice. Moreover, 'individual workforces should be able to develop their own arrangements, consistent with the Directive, but tailored to their particular circumstances, and these should be allowed to evolve as circumstances change and experience is gained.' However, such arrangements would need to be based on 'agreements validated by both sides and not merely the imposition of current practices'.

Mr Johnson thought it was clear that the legislation should apply at the undertaking level rather than the level of the establishment (the Directive gives Member States a choice). This would give employees the right to engage with higher-level management who are more likely to be responsible for decision-making. However, if consultation at workplace level was more appropriate in a particular firm, it would still be free to agree this with employees under a voluntary agreement.

The minister said that there was also broad agreement that it was right to have some kind of trigger mechanism so that a degree of employee support for information and consultation procedures was established before the legislative requirements became applicable. This would also mean that, in the absence of a request from employees, undertakings would not be subject to the legislation. The level of employee support required would need careful consideration.

The UK legislation would also need to 'lay down minimum enforceable standards' providing a structure for information and consultation to apply in the event that employers and employees were not able to reach a voluntary agreement. This would need to prescribe:

• how the employee representatives are to be chosen;

• how many there should be;

• the subjects to be covered; and

• the timing and manner of information and consultation.

However, again, the aim would be to retain some flexibility: 'employers and employees ought to be able at any time to agree to modify how the fall-back arrangements apply to them by coming to a voluntary agreement.'

On enforcement procedures and the protection of confidential information, the minister said that there was a good case for modelling these on the Transnational Information and Consultation of Employees Regulations 1999, which implemented the European Works Councils Directive (94/45/EC) in the UK (UK0001146N).

Mr Johnson confirmed that the specifics of the UK’s implementing legislation would be the subject of detailed consultation later in 2003. He acknowledged that people would want to know as far in advance as possible what the legislation would look like, so they could prepare for its implementation, and he hoped that the government would be in a position to finalise the legislation well before the Directive’s March 2005 deadline.

In his speech to the conference, the TUC general secretary-elect, Brendan Barber, said that the Directive represented a 'once in a lifetime chance to modernise the workplace'. Provided that the aim of the UK legislation was to implement the Directive effectively, unions were prepared to be flexible. Rather than being a 'burden on business', the Directive could be used to streamline UK employment law by subsuming the various ad hoc requirements to consult that already exist, such as over redundancies. Moreover, as long as certain minimum standards applied, employers and elected representatives of the workforce should be allowed to sort out what works best for them through negotiation, rather than being in a 'legal straitjacket'. In return, unions would expect to see effective sanctions against employers that were unwilling to engage in genuine information and consultation.