Stewart -v- Moray Council
Last year, new information and consultation rules applying to businesses and organisations with 150 or more staff were introduced in the UK.
In its first reported decision, the Central Arbitration Committee (CAC) decided in Stewart -v- Moray Council (2006, IRLR 168) that a pre-existing agreement was not detailed enough to satisfy the requirements of the regulations.
What does the law say?
The Information and Consultation of Employees Regulations 2004, which came into force in April 2005, state that employers have to negotiate an information and consultation agreement with employee reps, if they receive a “valid employee request” from 10 per cent of the workforce.
However, if there are pre-existing agreements (PEAs) that have already been approved covering all employees, the employer only has to negotiate a new agreement if 40 per cent of the workforce makes the request.
If only 10 to 40 per cent ask for the agreement, the employer can hold a ballot to gauge the level of support. The obligation to negotiate then arises if at least 40 per cent of the workforce and a majority of those voting endorse the request.
What was the background to the case?
In August 2005, Mr Stewart, an employee of Moray Council, presented the council with a petition signed by over 500 employees (between 10 and 40 per cent of the workforce) asking the council to negotiate an information and consultation agreement.
The council said its three existing collective agreements with the recognised trade unions amounted to a valid PEA and decided to ballot the workforce. Mr Stewart (a non union member) disagreed and complained to the CAC that the council should have started negotiations.
What did the two parties argue?
Mr Stewart argued that the existing agreements only provided for consultation with trade unions, and that there was no mechanism for informing and consulting with non trade union members.
They could not, therefore, be said to “cover all employees of the undertaking” as required by the regulations, nor had they been approved by them as non trade union members had not been consulted.
The council argued that the three existing agreements contained specific obligations in relation to information and consultation; that they contained an obligation to discuss issues directly with employees; and that the existing agreements were incorporated into the contracts of employment of all employees whether they were trade union members or not.
In any event, it argued that the agreements had been approved by employees through the auspices of their trade union reps who represented all employees, a majority of whom were union members.
What did the CAC decide?
The CAC panel said that the three agreements covered all employees within the meaning of the regulations, despite the fact that the consultation mechanism within them was limited to trade union representatives.
Employees who were not members of the recognised unions were covered by them because the agreements did not differentiate between union members and non members.
It also agreed with the council that the agreements had been “approved by the employees”, because everyone was covered by one or more of the agreements, and the trade union reps represented all employees.
But it said that one of the three agreements did not “set out how the employer is to give information to the employees or their representatives and seek their views on such information”.
The statement in the agreement that the joint negotiating committee was “a forum for discussion and/or consultation” was not detailed enough. It therefore upheld Mr Stewart’s complaint and the council had to start negotiations, as required by the regulations.