The Information and Consultation of Employees Regulations (Northern Ireland) 2005

Explanatory Note

(This note is not part of the Regulations.)

These Regulations, made under powers in Section 43 of the Employment Relations Act 2004 implement in Northern Ireland Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community (“the Information and Consultation Directive”).

The principal provisions of the Regulations provide as follows –

1.  Regulation 3 sets out the undertakings to which the Regulations apply.

2.  Regulation 4 provides a method of calculating the number of employees in an undertaking, regulation 5 provides the employees of an undertaking with an entitlement to data to make the calculation in regulation 4 and regulation 6 allows a complaint to be made to the Industrial Court that the employer has failed to provide such data or has supplied false or incomplete data.

3.  Part III deals with negotiated agreements and, in particular, regulation 7 provides that an employer must start negotiations on receipt of a valid employee request. However, the employer does not have to do so if there exists a pre-existing agreement and the request was made by fewer than 40% of employees. In the latter case the employer can choose to seek employee endorsement for the request and, unless at least 40% of employees in the undertaking and the majority of employees who vote do endorse the request, the employer does not have to start negotiations (regulation 8).

4.  Regulation 9 allows for combined ballots to be held where there are pre-existing agreements covering groups of undertakings.

5.  Regulation 10 covers complaints to the Industrial Court about ballots held under regulation 8 or 9.

6.  Regulation 11 allows for negotiations to be commenced by an employer notification of his intention to start negotiations.

7.  Regulation 12 contains certain restrictions on when an employee request or an employer notification can be made.

8.  Regulation 13 allows applications to the Industrial Court that an employee request or an employer notification is invalid.

9.  Regulation 14 sets out what steps have to be taken to initiate negotiations, including the election or appointment of negotiating representatives and regulation 15 allows a complaint to the Industrial Court in relation to the election or appointment of such representatives.

10.  Regulation 16 sets out what a negotiated agreement must contain and how it must be approved and regulation 17 provides for a complaint to the Industrial Court about such approval.

11.  Part IV contains provisions relating to the standard information and consultation provisions. Regulation 18 sets out when they apply, regulation 19 obliges the employer to hold a ballot for the appointment of information and consultation representatives to act under the standard provisions and regulation 20 sets out the employer’s obligations under the standard provisions.

12.  Regulation 21 places the parties under a duty of co-operation.

13.  Part VI deals with compliance and enforcement. Regulation 22 provides for complaints to the Industrial Court about the operation of a negotiated agreement or the standard information and consultation provisions and for an application to be made to the High Court for a penalty notice where the Industrial Court finds a failure to comply with the negotiated agreement or the standard provisions by the employer. Regulation 23 deals with penalties under a penalty notice.

14.  Regulation 24 provides that the only remedies available for infringement of rights under Parts I to VI are the ones under Parts I to VI of the Regulations and not otherwise.

15.  Part VII deals with confidential information and regulation 25 imposes a statutory duty not to disclose confidential information on anyone to whom such information is given and provides for an application to the Industrial Court to challenge the necessity of information or a document being treated as confidential. Regulation 26 provides that an employer does not have to disclose certain information.

16.  Part VIII – regulations 27, 28 and 29 provides protection to employees taking part in negotiations, information and consultation procedures or elections including protection against unfair dismissal (regulations 30 and 31) and detriment (regulations 32 and 33). Regulation 34 allows the Labour Relations Agency to conciliate in such disputes.

17.  Regulation 35 details Industrial Court proceedings on receipt of a complaint and Regulation 36 provides for the Industrial Court to refer a complaint to the Labour Relations Agency where it is of the opinion that it is likely to be settled by conciliation.

18.  Regulations 37 and 38 place restrictions on contracting out of the rights provided by these Regulations.

19.  Regulation 39 applies the rights of employees to Crown employees (although the Regulations will only apply if they are employed in an undertaking within the meaning of the Directive) and regulation 40 provides an exception for the merchant navy.