The new rules set out the circumstances in which employers have to reach I and C agreements with their staff.
But can employers rely on agreements that already exist? The Employment Appeal Tribunal (EAT) has now provided guidance in Moray Council -v- Stewart (2006, IRLR 592; IDS 816) on the status of pre-existing agreements.
What does the law say?
The Information and Consultation of Employees Regulations 2004 state that employers have to negotiate an I and C 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 10-40 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.
To be valid, the regulations state that PEAs:
a) must be in writing
b) must cover all employees in the undertaking
c) must have been approved by the employees
d) must set out how the employer will share information with their employees (or representatives) and get their views on it.
What was the background to the case?
In August 2005, Mr Stewart 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 I and C 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 Central Arbitration Committee (CAC) that the council should have started negotiations.
What did the CAC decide?
The CAC 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. Non-union members were covered because the agreements did not differentiate between union members and non members.
It also said 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, whether in a union or not (and the majority were).
But it said that one of the three agreements did not “set out how the employer is to give information to the employees” or seek their views. The statement that the joint negotiating committee was “a forum for discussion and / or consultation” was not detailed enough.
What did the EAT decide?
The EAT said that each of the agreements had to meet the requirements in each of the paragraphs set out in a, c and d. It was not enough for one of the agreements to do so.
The only exception was paragraph b, which had to be read differently, because otherwise each agreement would have to cover all employees.
That being so, the employees covered by a particular agreement had to approve it.
These agreements, taken together, covered all employees. The requirement that all employees should be “covered” by the agreements just meant that no “category” of employee could be left out. Just as collective agreements can cover non-union as well as union members, so can I and C agreements.
An agreement can be approved on behalf of employees where the majority were union members, as long as there was no obvious opposition to it.
However, approval had to be obtained for each agreement, by the employees covered by it. In this case, the agreements had been approved by union representatives and as most employees were members, the necessary approval had been given.
However, the agreements did not constitute PEAs because one of them did not spell out in enough detail how the employer would give information to the employees or seek their views.