The European Cooperative Society (Involvement of Employees) Regulations 2006

Regulation 6(2)

SCHEDULE 1 U.K.

PART 1 U.K. PROVISION OF INFORMATION AND THE SPECIAL NEGOTIATING BODY

Duty on SCE to provide information U.K.

1.—(1) The competent organ of the SCE shall, as soon as possible after the satisfaction of a relevant condition (within the meaning given in regulation 6(3)), provide information to the employees' representatives of the SCE and of any subsidiaries and establishments or, if no such representatives exist, the employees themselves.

(2) The information referred to in paragraph (1) must include, as a minimum, information—

(a) identifying the SCE and any subsidiaries and establishments,

(b) giving the number of employees employed by the SCE, any subsidiary and at any establishment, F1 ...

(c) giving the number of employees employed to work in each EEA State,

[F2 (d) the number of agency workers working temporarily for and under the supervision and direction of the SCE or any subsidiary, in each EEA State;

(e) the parts of the undertaking or any establishment in which those agency workers are working; and

(f) the type of work those agency workers are carrying out.]

Textual Amendments

F1 Word in Sch. 1 para. 1(2)(b) omitted (1.10.2011) by virtue of The Agency Workers Regulations 2010 (S.I. 2010/93), reg. 1(1), Sch. 2 para. 36(a)

F2 Sch. 1 para. 1(2)(d)(e)(f) added (1.10.2011) by The Agency Workers Regulations 2010 (S.I. 2010/93), reg. 1(1), Sch. 2 para. 36(b)

Complaint of failure to provide information U.K.

2.—(1) An employees' representative or, where there is no such representative for an employee, the employee, may present a complaint to the CAC that—

(a) the competent organ of the SCE has failed to provide the information to paragraph 1; or

(b) the information provided by such competent organ for the purpose of complying with paragraph 1 is false or incomplete in a material particular.

(2) Where the CAC finds the complaint well-founded it shall make an order requiring the competent organ to disclose information to the complainant which order shall specify—

(a) the information in respect of which the CAC finds that the complaint is well-founded and which is to be disclosed to the complainant; and

(b) a date, (not being less than one week from the date of the order) by which the competent organ must disclose the information specified in the order.

Function of the special negotiating body U.K.

3.  The special negotiating body and the competent organ of the SCE shall have the task of reaching an employee involvement agreement.

Composition of the special negotiating body U.K.

4.—(1) The competent organ of the SCE shall make arrangements for the establishment of a special negotiating body, which body shall be constituted as soon as possible and in accordance with sub-paragraphs (2) to (4) below. The methods used to elect or appoint employee representatives to the special negotiating body should seek to promote gender balance.

(2) The total number of employees employed to work in each EEA State of the SCE and its subsidiaries shall be given an entitlement to elect or appoint one member of the special negotiating body for each 10% or fraction thereof which those employees represent of the total workforce.

(3) The competent organ of the SCE shall, as soon as reasonably practicable and in any event no later than one month after the establishment of the special negotiating body, inform its employees and those of its subsidiaries of the identity of the members of the special negotiating body.

(4) If, following the appointment or election of members to the special negotiating body in accordance with this paragraph,

(a) changes to the SCE, its subsidiaries or establishments result in the number of members which employees would be entitled to elect or appoint under this paragraph either materially increasing or decreasing, the original appointment or election of members of the special negotiating body shall cease to have effect and those employees shall be entitled to elect or appoint the new number of members in accordance with the provisions of this Schedule; and

(b) a member of the special negotiating body is no longer willing or able to continue serving as such a member, the employees whom he represents shall be entitled to elect or appoint a new member in his place.

Complaint about establishment of the special negotiating body U.K.

5.—(1) An application may be presented to the CAC for a declaration that the special negotiating body has not been established at all or has not been established properly in accordance with paragraph 4.

(2) An application may be presented under this paragraph by—

(a) a person elected or appointed to be a member of the special negotiating body;

(b) an employees' representative or, where no such representative exists in respect of an SCE or subsidiary, an employee of the SCE or subsidiary; or

(c) the competent organ of an SCE or subsidiary.

(3) The CAC shall only consider an application made under sub-paragraph (1) that a special negotiating body had not been properly constituted if it is made within a period of one month from the date on which the competent organ of the SCE complied or should have complied with the obligation to inform the employees under paragraph 4(3).

(4) Where the CAC finds the application well-founded it shall make a declaration that the special negotiating body has not been established at all or has not been established properly and the competent organ of the SCE continues to be under the obligation in paragraph 4(1).

PART 2 U.K. ELECTION OR APPOINTMENT OF UK MEMBERS OF THE SPECIAL NEGOTIATING BODY

Ballot arrangements U.K.

6.—(1) Subject to paragraph 8, the UK members of the special negotiating body shall be elected by balloting the UK employees.

(2) An SCE and its subsidiaries employing UK employees (“the relevant employers”) must arrange for the holding of a ballot or ballots of those employees in accordance with the requirements of sub-paragraph (3), and having regard to the fact that the methods of election should seek to promote gender balance.

(3) The requirements referred to in sub-paragraph (2) are—

(a) in relation to the election of members under paragraph 4(2), that—

(i) if the number of members which UK employees are entitled to elect to the special negotiating body is equal to the number of relevant employers, there shall be separate ballots of the UK employees of each relevant employer;

(ii) if the number of members which the UK employees are entitled to elect to the special negotiating body is greater than the number of relevant employers there shall be separate ballots of the UK employees of each relevant employer and the relevant employers shall ensure, as far as practicable, that at least one member representing the UK employees of each such employer is elected to the special negotiating body and that the number of members representing the UK employees of that employer is proportionate to the number of employees of that employer;

(iii) if the number of members which the UK employees are entitled to elect to the special negotiating body is smaller than the number of relevant employers,—

(aa) the number of ballots held shall be equivalent to the number of members to be elected;

(bb) a separate ballot shall be held in respect of each of the relevant employers with the higher or highest number of employees; and

(cc) it shall be ensured that any employees of a relevant employer in respect of which a ballot does not have to be held are entitled to vote in a ballot held in respect of one of the other relevant employers; and

(iv) if there are any UK employees employed by a non-UK SCE or by a subsidiary or at an establishment of an non-UK SCE, the relevant employers shall ensure that those employees are entitled to vote in a ballot held pursuant to this paragraph;

(b) that in a ballot in respect of a particular relevant employer all UK employees employed by that employer at its establishments are entitled to vote;

(c) that in a ballot in respect of a particular relevant employer any person who is immediately before the latest time at which a person may become a candidate—

(i) a UK employee employed by that employer or at any of its establishments; or

(ii) if the employer so permits, a representative of a trade union who is not an employee of that employer,

is entitled to stand as a candidate for election as a member of the special negotiating body in that ballot;

(d) that the relevant employers appoint an independent ballot supervisor to supervise the conduct of the ballot of UK employees except that, where there is to be more than one ballot, the relevant employers may appoint more than one independent ballot supervisor, each of whom is to supervise such of the separate ballots as the relevant employers may determine, provided that each separate ballot is supervised by a supervisor;

(e) that after the relevant employers have formulated proposals as to the arrangements for the ballot of UK employees and before they have published the final arrangements under paragraph (f) they must, so far as reasonably practicable, consult with the UK employees' representatives on the proposed arrangements for the ballot of UK employees; and

(f) that the relevant employers must publish the final arrangements for the ballot of UK employees in such manner as to bring them to the attention of, so far as reasonably practicable, all UK employees and the UK employees' representatives.

(4) Any UK employee or UK employees' representative who believes that the arrangements for the ballot of the UK employees do not comply with the requirements of sub-paragraph (3) may, within a period of 21 days beginning on the date on which the management published the final arrangements under paragraph (f), present a complaint to the CAC.

(5) Where the CAC finds the complaint well-founded it shall make a declaration to that effect and may make an order requiring the relevant employers to modify the arrangements they have made for the ballot of UK employees or to satisfy the requirements in paragraph (e) or (f) of sub-paragraph (3).

(6) An order under sub-paragraph (5) shall specify the modifications to the arrangements which the relevant employers are required to make and the requirements they must satisfy.

(7) A person is an independent ballot supervisor for the purposes of sub-paragraph (3)(d) if the relevant employers reasonably believe that he will carry out any functions conferred on him in relation to the ballot competently and have no reasonable grounds for believing that his independence in relation to the ballot might reasonably be called into question.

Conduct of the ballot U.K.

7.—(1) The relevant employers must—

(a) ensure that a ballot supervisor appointed under paragraph 6(3)(d) carries out his functions under this paragraph and that there is no interference with his carrying out of those functions from the relevant employers; and

(b) comply with all reasonable requests made by a ballot supervisor for the purposes of, or in connection with, the carrying out of those functions.

(2) A ballot supervisor's appointment shall require that he—

(a) supervises the conduct of the ballot, or the separate ballots he is being appointed to supervise, in accordance with the arrangements for the ballot of UK employees published by the relevant employers under paragraph 6(3)(f) or, where appropriate, in accordance with the arrangements as required to be modified by an order made as a result of a complaint presented under paragraph 6(4);

(b) does not conduct the ballot or any of the separate ballots before the relevant employers have satisfied the requirement specified in paragraph 6(3)(f) and—

(i) where no complaint has been presented under paragraph 6(4), before the expiry of a period of 21 days beginning on the date on which the relevant employers published their arrangements under paragraph 6(3)(f); or

(ii) where a complaint has been presented under paragraph 6(4), before the complaint has been determined and, where appropriate, the arrangements have been modified as required by an order made as a result of that complaint;

(c) conducts the ballot, or each separate ballot so as to secure that—

(i) so far as reasonably practicable, those entitled to vote are given the opportunity to vote;

(ii) so far as reasonably practicable, those entitled to stand as candidates are given the opportunity to stand;

(iii) so far as reasonably practicable, those voting are able to do so in secret; and

(iv) the votes given in the ballot are fairly and accurately counted.

(3) As soon as reasonably practicable after the holding of the ballot, the ballot supervisor must publish the results of the ballot in such manner as to make them available to the relevant employers and, so far as reasonably practicable, the UK employees entitled to vote in the ballot and the persons who stood as candidates.

(4) A ballot supervisor shall publish a report (“an ineffective ballot report”) where he considers (whether on the basis of representations made to him by another person or otherwise) that—

(a) any of the requirements referred to in sub-paragraph (2) was not satisfied with the result that the outcome of the ballot would have been different; or

(b) there was an interference with the carrying out of his functions or a failure by the relevant employers to comply with all reasonable requests made by him with the result that he was unable to form a proper judgement as to whether each of the requirements referred to in sub-paragraph (2) was satisfied in the ballot.

(5) Where a ballot supervisor publishes an ineffective ballot report the report must be published within a period of one month commencing on the date on which the ballot supervisor publishes the results of the ballot under sub-paragraph (3).

(6) A ballot supervisor shall publish an ineffective ballot report in such manner as to make it available to the relevant employers and, so far as reasonably practicable, the UK employees entitled to vote in the ballot and the persons who stood as candidates in the ballot.

(7) Where a ballot supervisor publishes an ineffective ballot report then—

(a) if there has been a single ballot or an ineffective ballot report has been published in respect of every separate ballot, the outcome of the ballot or ballots shall have no effect and the relevant employers shall again be under the obligation in paragraph 6(2).

(b) If there have been separate ballots and paragraph (a) does not apply—

(i) the relevant employers shall arrange for the separate ballot or ballots in respect of which an ineffective ballot report was published to be re-held in accordance with paragraph 6 and this paragraph; and

(ii) no such ballot shall have effect until it has been re-held and no ineffective ballot report has been published in respect of it within the period specified in sub-paragraph (5).

(8) All costs relating to the holding of a ballot, including payments made to a ballot supervisor for supervising the conduct of the ballot, shall be borne by the relevant employers (whether or not an ineffective ballot report has been published).

Appointment of UK members by a consultative committee U.K.

8.—(1) This paragraph applies where—

(a) paragraph 6(3)(i) or (ii) would require a ballot to be held; and

(b) there exists in relation to the SCE whose employees would otherwise need to be balloted under paragraph 6, a consultative committee.

(2)  

(a) Where this paragraph applies, the election provided for in paragraph 4 shall not take place but the consultative committee shall be entitled to appoint the UK member or members of the special negotiating body who would otherwise be elected pursuant to paragraph 6, where appropriate having regard to the fact that the method used should seek to promote gender balance.

(b) The consultative committee is entitled to appoint as a member of the special negotiating body:

(i) one of their number; or

(ii) if the SCE in respect of which the consultative committee exists so permits, a trade union representative who is not an employee of that SCE.

(3) In this regulation, “a consultative committee” means a body of persons—

(a) whose normal functions include or comprise the carrying out of an information and consultation function;

(b) which is able to carry out its information and consultation function without interference from the SCE;

(c) which, in carrying out its information and consultation function, represents all the employees of the SCE; and

(d) which consists wholly of persons who are employees of the SCE or such SCE's subsidiaries.

(4) In sub-paragraph (3) “information and consultation function” means the function of—

(a) receiving, on behalf of all of the employees of the SCE, information which may significantly affect the interests of the employees of that SCE, but excluding information which is relevant only to a specific aspect of the interests of the employees, such as health and safety, collective redundancies or pension schemes; and

(b) being consulted by the SCE on the information referred to in paragraph (a) above.

(5) The consultative committee must publish the names of the persons whom it has appointed to be members of the special negotiating body in such a manner as to bring them to the attention of the SCE and, so far as reasonably practicable, the employees and the employees' representatives of the SCE and such SCE's subsidiaries.

(6) Where the SCE, an employee or an employees' representative believes that—

(a) the consultative committee does not satisfy the requirements in sub-paragraph (3) above; or

(b) any of the persons appointed by the consultative committee is not entitled to be appointed,

he, or as the case may be, it may, within a period of 21 days beginning on the date on which the consultative committee published under sub-paragraph (5) the names of the persons appointed, present a complaint to the CAC.

(7) Where the CAC finds the complaint well-founded it shall make a declaration to that effect.

(8) Where the CAC has made a declaration under sub-paragraph (7)—

(a) no appointment made by the consultative committee shall have effect; and

(b) the members of the special negotiating body shall be elected by a ballot of the employees in accordance with paragraph 6.

(9) Where the consultative committee appoints any person to be a member of the special negotiating body, that appointment shall have effect—

(a) where no complaint has been presented under sub-paragraph (6), after the expiry of a period of 21 days beginning on the date on which the consultative committee published under sub-paragraph (5) the names of the persons nominated; or

(b) where a complaint has been presented under sub-paragraph (6), as from the day on which the complaint has been determined without a declaration under sub-paragraph (7) being made.

Representation of employees U.K.

9.—(1) Subject to sub-paragraph (2) below, a member elected in a ballot in accordance with paragraph 6(2), shall be treated as representing the employees for the time being of the SCE and of any such SCE's subsidiary or establishment whose employees were entitled to vote in the ballot in which he was elected.

(2) When a member of the special negotiating body is appointed by a consultative committee in accordance with paragraph 8, the employees whom the consultative committee represents and the UK employees of any subsidiary of the SCE or establishment shall be treated as being represented by the member so appointed.

PART 3 U.K. NEGOTIATION OF THE EMPLOYEE INVOLVEMENT AGREEMENT

Negotiations to reach an employee involvement agreement U.K.

10.—(1) In this paragraph and in paragraph 11 the competent organ of the SCE and the special negotiating body are referred to as “ the parties”.

(2) The parties are under a duty to negotiate in a spirit of cooperation with a view to reaching an employee involvement agreement.

(3) The duty referred to in paragraph (2) commences one month after the date or, if more than one, the last date on which the members of the special negotiating body were elected or appointed and applies—

(a) for the period of 6 months starting with the day on which the duty commenced or, where an employee involvement agreement is successfully negotiated within that period, until the completion of the negotiations; or

(b) where the parties agree before the end of that 6 month period that it is to be extended, for the period of 12 months starting with the day on which the duty commenced or, where an employee involvement agreement is successfully negotiated within the 12 month period, until the completion of the negotiations.

The employee involvement agreement U.K.

11.—(1) The employee involvement agreement must be in writing.

(2) Without prejudice to the autonomy of the parties, the employee involvement agreement shall specify:

(a) the scope of the agreement;

(b) the composition, number of members and allocation of seats on the representative body;

(c) the functions and the procedure for the information and consultation of the representative body;

(d) the frequency of meetings of the representative body;

(e) the financial and material resources to be allocated to the representative body;

(f) if, during negotiations, the parties decide to establish one or more information and consultation procedures instead of a representative body, the arrangements for implementing those procedures;

(g) if, during negotiations, the parties decide to establish arrangements for participation, the substance of those arrangements including (if applicable) the number of members of the SCE's administrative or supervisory organ which the employees will be entitled to elect, appoint, recommend or oppose, the procedures as to how these members may be elected, appointed, recommended or opposed by the employees, and their rights;

(h) if, where the statute of the SCE so provides, during negotiations the parties decide to establish arrangements for employees or their representatives to participate in and vote in the general meeting or any section or sectorial meetings of the SCE, the substance of those arrangements including (if applicable) the number of employees or representatives who will be entitled to participate, the procedure as to how they are to be elected, appointed, recommended or opposed, and their rights; and

(i) the date of entry into force of the agreement, its duration, the circumstances, if any, in which the agreement is required to be re-negotiated including (where appropriate) in the event of changes in the structure of the SCE or its subsidiaries or establishments, and the procedure for its re-negotiation.

(3) The employee involvement agreement shall not be subject to the standard rules on employee involvement, unless it contains a provision to the contrary.

(4) If the parties decide, in accordance with paragraph (2)(f), to establish one or more information and consultation procedures instead of a representative body and if those procedures include a provision for representatives to be elected or appointed to act in relation to information and consultation, those representatives shall be “information and consultation representatives”.

[F3 (5) Where under the employee involvement agreement the competent organ of the SCE is to provide information on the employment situation in the SCE, such information must include suitable information relating to the use of agency workers (if any) in that SCE.]

Textual Amendments

F3 Sch. 1 para. 11(5) added (1.10.2011) by The Agency Workers Regulations 2010 (S.I. 2010/93), reg. 1(1), Sch. 2 para. 37

Decisions of the special negotiating body U.K.

12.—(1) Each member of the special negotiating body shall have one vote.

(2) Subject to paragraph 13, the special negotiating body shall take decisions by an absolute majority vote.

(3) The special negotiating body must publish the details of any decision taken under this paragraph or under paragraph 13 in such a manner as to bring the decision, so far as reasonably practicable, to the attention of the employees whom it represents and such publication shall take place as soon as reasonably practicable and, in any event no later than 14 days after the decision has been taken.

(4) For the purpose of negotiations, the special negotiating body may be assisted by experts of its choice.

(5) The SCE shall pay for any reasonable expenses of the functioning of the special negotiating body and any reasonable expenses relating to the negotiations that are necessary to enable the special negotiating body to carry out its functions in an appropriate manner but where the special negotiating body is assisted by more than one expert the SCE is not required to pay such expenses in respect of more than one of them.

Decision not to open or to terminate negotiations U.K.

13.—(1) The special negotiating body may decide, by a two thirds majority vote, not to open negotiations with the competent organ of the SCE or to terminate any such negotiations.

(2) Any decision made under sub-paragraph (1) shall have the following effects—

(a) the duty in paragraph 10(2) to negotiate with a view to reaching an employee involvement agreement shall cease as from the date of the decision;

(b) any rules relating to the information and consultation of employees in an EEA State in which employees of the SCE are employed shall apply to the employees of the SCE in that EEA State; and

(c) the special negotiating body shall be reconvened only if a valid request in accordance with sub-paragraph (3) is made by employees or employees' representatives.

(3) To amount to a valid request, the request referred to in sub-paragraph (2)(c) must—

(a) be in writing;

(b) be made by at least 10% of the employees of, or by employees' representatives representing at least 10% of, the total number of employees employed by the SCE and it subsidiaries; and

(c) be made no earlier than two years after the decision made under sub-paragraph (1) was or should have been published in accordance with paragraph 12(3) unless the special negotiating body and the SCE agrees to the special negotiating body being reconvened earlier.

Complaint about decisions of the special negotiating body U.K.

14.—(1) If a member of the special negotiating body, an employees' representative, or where there is no such representative in respect of an employee, that employee believes that the special negotiating body has taken a decision referred to in paragraph 12 or 13 and—

(a) that the decision was not taken by the majority required by paragraph 12 or 13, as the case may be; or

(b) the special negotiating body failed to publish the decision in accordance with paragraph 12(3),

he may present a complaint to the CAC within 21 days of the date the special negotiating body did or should have published its decision in accordance with paragraph 12(3).

(2) Where the CAC finds the complaint well-founded it shall make a declaration that the decision was not taken properly and that it shall have no effect.

PART 4 U.K. STANDARD RULES ON EMPLOYEE INVOLVEMENT

Standard rules on employee involvement U.K.

15.—(1) Without prejudice to sub-paragraphs (3) and (4), where this paragraph applies, the competent organ of the SCE and its subsidiaries and establishments shall make arrangements for the involvement of employees of the SCE and its subsidiaries and establishments in accordance with the standard rules on employee involvement.

(2) This paragraph save for sub-paragraph 4, applies in the following circumstances:

(a) where it is agreed that the standard rules on employee involvement shall apply; or

(b) where the period specified in paragraph 10(3)(a) or, where applicable, (b) has expired without an employee involvement agreement having been reached and the special negotiating body has not taken any decision under paragraph 13(1) either not to open or to terminate the negotiations referred to in that regulation.

(3) Paragraph 7(1) of Part 3 of Schedule 2 to these Regulations (standard rules for participation) does not apply and the remaining provisions of that Part only apply if:

(a) a participating legal entity was a party to the formation of the SCE and, before its registration, one or more forms of employee participation existed in the participating legal entity, and,

(b) the special negotiating body has decided that the standard rules for participation will apply to the employees of the SCE.

(4) The standard rule set out in paragraph 7(4) of Part 3 of Schedule 2 to these Regulations shall apply only in the following circumstances—

(a) the SCE is established by means other than conversion;

(b) there is a participating cooperative which, immediately prior to the establishment of the SCE, was governed by a system whereby employees or employee representatives may participate in general meetings or section or sectorial meetings, and that participating cooperative had the highest proportion of participation, within the meaning of regulation 3, in force in the participating cooperatives concerned before registration of the SCE; and

(c) the period specified in paragraph 10(3)(a) or, where applicable, (b) has expired without an employee involvement agreement having been reached, and the special negotiating body has not taken any decision under paragraph 13(1) either not to open or to terminate the negotiations referred to in that paragraph.