CAC issues first ruling in information and consultation case

In December 2005, the Central Arbitration Committee upheld an employee complaint in its first ruling under the Information and Consultation of Employees Regulations. At issue was whether a pre-existing agreement claimed by the employer satisfied the necessary conditions specified by the Regulations.

On 9 December 2005, the Central Arbitration Committee (CAC) published its [decision](http://www.cac.gov.uk/I&C/IC3 14 Dec Moray Council Reg 10(1) Decision (Final Version-Amended).htm) in the first case (case number I&C/03/05) to be determined under the Information and Consultation of Employees (ICE) Regulations (UK0502103N; UK0512101N).

The case concerned a complaint by a Mr J Stewart against Moray Council under Regulation 10(1). This provides that an employee may dispute whether a claimed 'pre-existing agreement' satisfies the necessary conditions specified by the Regulations.

Under the ICE Regulations, where an employee request for negotiations to establish information and consultation arrangements is made by fewer than 40% of employees, employers may hold a ballot to test the level of employee support for the request if there is a pre-existing agreement already in place. To be valid, a pre-existing agreement must:

• be in writing;

• cover all employees;

• have been approved by the employees; and

• set out how the employer is to give information to employees or their representatives and seek their views on such information.

If the CAC decides that there is no pre-existing agreement, it can make an order requiring the employer to initiate negotiations as requested.

In this case, Mr Stewart, an employee of Moray Council, lodged a petition with the council in which over 500 employees requested the council to initiate negotiations to reach an agreement under the Regulations. The council’s view was that there were pre-existing agreements in place covering all the council’s employees and that a ballot should be held to ascertain whether the wider workforce endorsed the request. The council contended that three documents - the framework local recognition and procedure agreement (covering teachers and related staff), the Moray Council officer trade union group constitution and the protocol for consultation with trade unions - constituted pre-existing agreements for the purposes of the Regulations, and covered all employees whether they were trade union members or not. However, in Mr Stewart’s view, these were agreements with trade unions and provided only for consultation with trade unions with no provision for informing and consulting non-members. He therefore argued that they did not cover all employees and had not been approved by the employees.

The CAC panel took the view that the agreements related to negotiation and consultation for council employees without differentiating between union members and non-members and that they did cover all employees. It also decided that the agreements’ approval by trade union representatives constituted approval by the employees as required by the Regulations. However, the panel concluded that one of the three agreements - the framework agreement for teachers - was 'insufficiently detailed' about how the employer is to give information to the employees and seek their views and therefore did not fulfil this requirement of the Regulations concerning pre-existing agreements.

Accordingly, the panel decided to uphold Mr Stewart’s complaint that the pre-existing agreements relied on by Moray Council did not fulfil the necessary conditions specified by the Regulations that would entitle the council to proceed with a ballot. It therefore ordered the council to initiate negotiations in response to the employee request received.

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