This feature highlights the main points made by the TUC, CBI and other leading organisations in their November/December 2003 submissions to the UK government in response to the draft Information and Consultation of Employees Regulations.
In July 2003, the Department of Trade and Industry (DTI) published a consultation document (UK0307106F) setting out how the UK government proposes to implement the EU information and consultation Directive (2002/14/EC) (EU0204207F), and inviting comments on draft Regulations by November 2003. The approach followed by the draft Regulations reflected an 'outline scheme' agreed in discussions between the government, the Confederation of British Industry (CBI) and the Trades Union Congress (TUC). This feature highlights the key points made by the CBI, TUC and other leading organisations in their submissions to the DTI.
TUC comments
While welcoming the DTI/CBI/TUC framework and the overall thrust of the proposed legislation, the TUC submission seeks a number of amendments to the draft Regulations. Among other points, the TUC proposes that:
- the wider term 'workers' should be used rather than 'employees', so that casual and agency workers are also covered;
- part-time workers should be counted as equivalent to full-time workers for the purposes of applying the workforce headcount thresholds;
- the Regulations should cover all public sector employees, including the civil service;
- in the case of corporate groups, workers employed by associated companies should count towards the workforce thresholds. Moreover, the Regulations should apply to the group as well as to individual companies within it;
- where negotiations over an information and consultation agreement are triggered under the Regulations, more detailed requirements are needed governing the election of negotiating representatives, and the negotiating period should be three months rather than six months;
- the standard information and consultation provisions should provide for a minimum of three information and consultation representatives in the smallest undertakings covered. Information and consultation representatives from unionised parts of the workforce should be appointed by recognised unions. Representatives should also have access to the necessary financial and material resources and professional assistance; and
- the Advisory, Conciliation and Arbitration Service (Acas) should produce a code of practice giving practical guidance on the legislation.
The TUC opposes any 'dilution' of the obligation on employers under existing legislation on redundancies and transfers to consult with representatives of recognised unions where they exist. The TUC proposes that, where the standard information and consultation provisions apply and there are also recognised unions, consultation over relevant redundancies and transfers must take place via representatives of those unions, and that it should be sufficient to meet the requirements of the standard information and consultation provisions for management to inform the information and consultation representatives when consultation with recognised unions on these issues takes place.
The TUC is concerned that existing union-based information and consultation arrangements may be vulnerable to challenge via the trigger mechanism where they do not cover all an undertaking’s employees and the employer has not agreed supplementary information and consultation arrangements with the non-union parts of the workforce. To avoid disruption to established arrangements, the TUC suggests that 'it should be possible for 10% of those outside existing collective bargaining structures to petition for an information and consultation procedure to be established in a manner which would suit their particular interests'.
The TUC questions whether the scope under the draft Regulations for employers and employees to agree on direct methods of information and consultation is consistent with the Directive, and suggests that such a provision may be subject to legal challenge.
CBI comments
The CBI’s response emphasises that employers should be allowed 'maximum flexibility' to agree information and consultation arrangements with their workforce 'whether these relate to direct or indirect consultation'. It 'firmly rejects any suggestion' that the scope allowed by the draft Regulations for agreements which provide for direct consultation is inconsistent with the DTI/CBI/TUC outline scheme. (This made no explicit reference to direct forms of consultation, but provided that: 'The parties to a negotiated agreement will be able to agree the information and consultation arrangements that best suit their needs and circumstances.') The CBI also wants employers to have 'maximum flexibility' to consult at the most appropriate level of the business.
The CBI emphasises the importance it attaches to the requirement that at least 40% of employees in the undertaking must vote in favour of a request for negotiations on a new agreement where there are pre-existing information and consultation agreements in place.
Although the DTI/CBI/TUC outline scheme provided for disputes about the operation of information and consultation arrangements negotiated under the Regulations’ procedures to be dealt with by the Central Arbitration Committee (CAC), the CBI argues that 'primary responsibility for enforcement of the Regulations should be given to employment tribunals - not to the CAC'. Employment tribunals already hear cases concerning consultation over redundancies and transfers and the CBI believes that giving them responsibility for enforcing the information and consultation Regulations would enable cases in which different statutory requirements overlap to be 'joined' as one case before a single body. The CBI is also concerned that the CAC’s existing role in enforcing the statutory trade union recognition legislation might colour its approach to information and consultation issues and 'send the wrong message to the parties as to the nature of the new rights'.
The CBI wants the government to clarify the link between the new Regulations and other legislation on information and consultation. Businesses are said to be particularly concerned about the Regulations’ potential overlap with existing consultation obligations relating to redundancies and transfers. According to the CBI, businesses should be able to take a staged approach to consultation on such issues so that 'the more strategic issues are discussed with the information and consultation body while the specifics are ... discussed with those most directly affected by any decisions made'.
Other CBI proposals are that:
- signatures gathered as part of employee petitions to trigger negotiations about information and consultation arrangements should have a six-month 'shelf-life' to ensure such petitions accurately reflect current employee opinion;
- the government must take full advantage of the Directive’s exemption for sea-going vessels so as not to 'gold-plate' the Directive; and
- the DTI should produce clear practical advice on how companies, particularly small firms, can meet the specific requirements of the Regulations, as distinct from the 'best practice' guidance on employee involvement currently being developed by Acas.
Other responses
The Engineering Employers’ Federation (EEF) argues that:
- voluntary information and consultation agreements should be possible at establishment level rather than having to cover all employees an undertaking;
- to constitute a valid request for negotiations, the names on an employee petition should be collected within a three-month period;
- the standard information and consultation provisions should be 'more precise' about the issues on which information and consultation is required; and
- the relationship of the Regulations to other legislation requiring information and consultation, eg on collective redundancies and business transfers, should be clarified. The draft Regulations are 'most unclear on this point and the government has potentially passed all the risks onto employers'.
The EEF also argues that, if the CAC is to deal with the enforcement of the Regulations, it should have 'clear rules of procedure about how to handle cases' and the existing membership of the CAC should be 'reviewed so that it includes individuals with practical experience of information and consultation arrangements in non-unionised organisations'. Like the CBI, the EEF considers that 'the problem of the same basic issue being litigated before different bodies with different penalties/remedies' is a 'strong argument' against giving the CAC the responsibility for dealing with breaches of the Regulations rather than employment tribunals.
The Involvement and Participation Association (IPA), whose members include leading companies, public sector organisations and trade unions, endorses the broad approach of the draft Regulations. It supports applying the Directive at undertaking rather than establishment level, and stresses that 'this does not exclude information and consultation arrangements at other levels. On the contrary, we would support a multi-level approach, the precise details of which will be decided by the structure of the organisation and the nature of its activities.'
In the IPA’s view, 'the biggest issue facing organisations who are committed to informing and consulting staff is how to safeguard existing arrangements'. The IPA suggests validating existing arrangements against a set of 'principles of good practice', not a set of structural requirements.
As regards the link between the draft Regulations and existing consultation requirements, the IPA does not believe this is the time to try to wrap up the various provisions in a single piece of legislation. 'In the circumstances, it might be appropriate for the government to state that it is its intention to rationalise, but that it proposes to draw on experience before proceeding.'
Like the TUC, the IPA believes that, where the standard information and consultation provisions apply, the employee representatives 'should be representatives of independent trade unions recognised by employers, where recognised unions exist, or otherwise representatives elected by employees'. In relation to the option under the draft Regulations for agreed direct models of consultation, the IPA wants a 'minimum acceptable level of direct consultation' to be spelt out.
Finally, the Chartered Institute of Personnel and Development (CIPD), representing employment relations and human resource managers, emphasises that organisations want the flexibility to inform and consult employees 'at whatever is the most appropriate level'. In many cases this will be at a level other than that of the individual undertaking. The CIPD also believes that some employers would welcome more clarity about what they are expected to do, either in the Regulations or in guidance. In particular, guidance should 'clarify what steps employers need to take to validate existing arrangements'. The CIPD says that 'the government should indicate an intention to review the operation of the new Regulations alongside those already in place and be willing to clarify any uncertainty or inconsistency.'
Commentary
The DTI intends to publish a revised version of the Regulations and draft guidance 'early in 2004'. Although the submissions of the CBI and the TUC each signal reservations with particular aspects of the draft Regulations (and the agreed outline scheme on which they were based), it seems unlikely that the revised Regulations will depart significantly from the approach already established. A key aspect of the guidance to be issued will be what constitutes agreed existing information and consultation arrangements, to which the higher, 40% threshold of employee support for new negotiations will be applicable.
The final text of the Regulations will be laid before Parliament following approval of the Employment Relations Bill (UK0312104F) which includes powers for the government to make regulations concerning employee information and consultation. The Bill is expected to complete its passage through Parliament either before the summer recess or in the autumn. In line with the terms of the Directive, the Regulations are due to take effect in March 2005. (Mark Hall, IRRU)