The Transnational Information and Consultation of Employees Regulations 1999

Failure to establish European Works Council or information and consultation procedure

20.—(1) A complaint may be presented to the Appeal Tribunal by a relevant applicant who considers—

(a) that the parties have reached agreement on the establishment of a European Works Council or an information and consultation procedure, or that regulation 18 applies; and

(b) that, because of a failure of the central management, the European Works Council or information and consultation procedure has not been established at all, or has not been established fully in accordance with the terms of the agreement under regulation 17 or, as the case may be, in accordance with the provisions of the Schedule.

(2) In this regulation “failure” means an act or omission and a failure by the local management shall be treated as a failure by the central management.

(3) In this regulation “relevant applicant” means—

(a) in a case where a special negotiating body exists, the special negotiating body; or

(b) in a case where a special negotiating body does not exist, an employee, employees' representative, or person who was a member of the special negotiating body (if that body existed previously).

(4) Where the Appeal Tribunal finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the central management to take such steps as are necessary to establish the European Works Council or information and consultation procedure in accordance with the terms of the agreement under regulation 17 or, as the case may be, to establish a European Works Council in accordance with the provisions of the Schedule.

(5) The Appeal Tribunal shall not find a complaint under this regulation to be well-founded where—

(a) the central management made no application in relation to the request under regulation 10(1), or where the request consisted of separate requests was unable by reason of the time limit in sub-paragraph (a) of that regulation to make an application under the regulation in relation to a particular request, and shows that the request was not a valid request because a requirement of regulation 9(2) or (3) was not satisfied; or

(b) the central management made no application under regulation 10(3) but shows that the obligation in regulation 9(1) did not, for any reason, apply to it on the relevant date.

(6) An order under paragraph (4) shall specify—

(a) the steps which the central management is required to take;

(b) the date of the failure of the central management; and

(c) the period within which the order must be complied with.

(7) If the Appeal Tribunal makes a decision under paragraph (4) above it shall issue a written penalty notice to the central management requiring it to pay a penalty to the Secretary of State in respect of the failure.

(8) Paragraph (7) shall not apply if the Appeal Tribunal is satisfied, on hearing the representations of the central management, that the failure resulted from a reason beyond the central management’s control or that it has some other reasonable excuse for its failure.

(9) Regulation 22 shall apply in respect of a penalty notice issued under this regulation.

(10) No order of the Appeal Tribunal under this regulation shall have the effect of suspending or altering the effect of any act done or of any agreement made by the central management or the local management.