Redundancy and transfer consultation and appeal procedures amended

Ireland's national legislation implementing EU Directives on transfers of undertakings and collective redundancies was amended in January 2001 to introduce new non-union consultation and appeal procedures, after a complaint from the European Commission.

New mechanisms for the consultation of workers in firms which do not recognise trade unions, as well as access to the Rights Commissioner's appeal mechanism, have been introduced into Irish law implementing the EU Directives on transfers of undertakings (77/187/EEC, amended by 98/59/EC) and collective redundancies (now consolidated in 98/59/EC).

The Irish government amended the relevant legislation in January 2001, following the issuing in 1999 of a reasoned opinion on the matter by the European Commission, a stage in the Community law infringement proceedings laid down in the EC Treaty. While the original Directives on the two subjects were transposed into Irish law in 1977 and 1980, the Commission argued that European Court of Justice case law during the 1990s meant that the national legislation needed to be adjusted.

The amending regulations - the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) (Amendment) Regulations 2000 (SI No. 487/2000) and the European Communities (Protection of Employment) Regulations 2000 (SI No. 488/2000) - were introduced as ministerial orders rather than going through parliament. They provide for: access to the Rights Commissioner appeal mechanism; and the consultation of employees in companies where unions are not recognised.

The Rights Commissioner service is a state-run appeals mechanism specialising in individual rather than collective grievances. The new regulations provide for a right of complaint to a Rights Commissioner by an employee, trade union, or staff association where they feel that employees' rights under either the transfer of undertakings or collective redundancies legislation have been infringed. Appeals against Rights Commissioners' recommendations can now be heard by the Employment Appeals Tribunal, which is also the main third-party appeals body for unfair dismissal cases.

The need for consultation with employees' representatives under both the transfer of undertakings and collective redundancies legislation had been dealt with in the original legislation through the channel of trade unions. The new regulations add to this a procedure through which employees in non-union firms can be formally consulted.

The regulations state that in the absence of a union or staff association, "a person or persons chosen (under an arrangement put in place by the employer) by such employees from among their number to represent them in negotiations with the employer" may act as employees' representatives. This ensures that the representatives must be chosen by the employees, preventing the employer from selecting a person or persons to be consulted.

The regulations do not oblige the employer to establish these consultation mechanisms, unless transfer of undertakings or collective redundancies are taking place. However, the need for employees to choose representatives beforehand means that non-union firms may prefer to have such a system in place to cover the eventuality of such a situation arising - given the secrecy which usually surrounds announcements on both redundancies and transfers of ownership.

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