Transnational Information and Consultation of Employees Act, 1996
Acts of the Oireachtas
Source: Acts of the Oireachtas

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paragraphs: —This Act may be cited as the Transnational Information and Consultation of Employees Act, 1996.
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paragraphs: —This Act shall come into operation on such day as the Minister may by order appoint.
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paragraphs: —(1) In this Act, unless the context otherwise requires—
“appointed” means, in the absence of an election, appointed by employees, or appointed by management on a basis agreed with employees;
“central management” means—
(a) in the case of a Community-scale undertaking, the central management of the undertaking, and
(b) in the case of a Community-scale group of undertakings, the central management of the controlling undertaking,
or such other level of management determined by the central management or agreed between the central management and the employees of the undertaking or group of undertakings;
“Community-scale undertaking” means any undertaking with at least 1,000 employees within the Member States and at least 150 employees in each of at least two Member States;
“Community-scale group of undertakings” means a group of undertakings with—
(a) at least 1,000 employees within the Member States, and
(b) at least one group undertaking with at least 150 employees in one Member State and at least one other group undertaking with at least 150 employees in another Member State;
“Community” means—
(a) the European Community excluding the United Kingdom; and
(b) Norway, Iceland and Liechtenstein;
“consultation” means the exchange of views and establishment of dialogue between employees' representatives and the central management;
“contract of employment” means a contract of service or of apprenticeship, whether express or implied, and if express, whether oral or in writing;
“controlled undertaking” and “controlling undertaking” have the meanings assigned to them, respectively, by section 5 (1);
“the Directive” means Council Directive 94/45/EC of 22 September 19941 , on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees;
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paragraphs: —(1) In determining whether, for the purposes of the establishment of a Special Negotiating Body, an undertaking is a Community-scale undertaking or undertakings are a Community-scale group of undertakings, the number of employees employed in the undertaking or group of undertakings shall be taken to be the average number of employees, including part-time employees, employed in the undertaking or group of undertakings during the two years immediately preceding the request for the establishment of the Special Negotiating Body.
(2) The central management shall, on being so requested by an employees' representative, give to that representative such information about the numbers and status of employees employed in an undertaking or undertakings as is reasonably necessary to enable the numbers referred to in subsection (1) to be assessed.
(3) For the purposes of this section—
“employees' representatives” includes those employees' representatives already recognised by the undertaking or group of undertakings for collective bargaining or information and consultation purposes;
“part-time employees”, in relation to employment in the State, means employees—
(a) in the continuous service of an employer for not less than 13 weeks, and
(b) normally expected to work not less than eight hours each week for the employer.
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paragraphs: —(1) In this Act “controlling undertaking” means an undertaking which can exercise a dominant influence over another undertaking by virtue of ownership, financial participation or the rules which govern the controlled undertaking, and “controlled undertaking” means an undertaking over which that dominant influence can be exercised.
(2) The ability of an undertaking to exercise a dominant influence shall be presumed, unless the contrary is proved, when in relation to another undertaking it directly or indirectly—
(a) holds a majority of that other undertaking's subscribed capital,
(b) controls a majority of the votes attached to that other undertaking's issued share capital, or
(c) can appoint more than half of the members of that other undertaking's administrative, management or supervisory body.
(3) Subject to subsection (4), if more than one undertaking in the State meets the criteria in subsection (2), the undertaking that meets the criterion in subsection (2) (c) shall be regarded as the controlling undertaking, or if no undertaking meets the criterion in subsection (2) (c), then the undertaking that meets the criterion in subsection (2) (b) shall be regarded as the controlling undertaking in preference to one that meets the criterion in subsection (2) (a).
(4) Where an undertaking (in this section referred to as a “joint venture”), wherever in the Community located, is carried on by two undertakings in the State neither of whom can exercise a dominant influence over the joint venture, it shall be regarded as a controlled undertaking of each of them unless they agree that it is a controlled undertaking of one only of them for the purposes of this Act, in which case, but subject to subsection (5), that undertaking shall be regarded as the controlling undertaking of the joint venture.
(5) If being the controlled undertaking of one undertaking would result in employees of a joint venture being deprived of an entitlement to be informed and consulted under this Act they would have if the joint venture were a controlled undertaking of the other undertaking, that other undertaking shall be regarded as the controlling undertaking of the joint venture.
(6) For the purposes of subsections (2) and (3) but without prejudice to proof that another undertaking is able to exercise a dominant influence, a controlling undertaking's rights as regards voting and appointment referred to in subsection (2) (b) or (c) shall include—
(a) the rights of any other of its controlled undertakings, and
(b) the rights of any person or body acting in the person's or body's own name but on behalf of the controlling undertaking (or any other of the controlling undertaking's controlled undertakings) as the controlling undertaking.
(7) Notwithstanding subsections (1), (2), (3), (4) and (5), an undertaking shall not be regarded as a controlling undertaking of another undertaking in which it has holdings where the first-mentioned undertaking is a company referred to in Article 3 (5) (a) and (c) of Council Regulation (EEC) No. 4064/89 of 21 December 19892 , on the control of concentrations between undertakings.
(8) A dominant influence shall not be presumed to be exercised solely by virtue of the fact that an office holder is exercising functions, according to the law of a Member State, relating to liquidation, winding-up, insolvency, cessation of payments, compositions of creditors or analogous proceedings.
(9) The law applicable in order to determine whether an undertaking is a controlling undertaking shall be the law of the Member State which governs that undertaking. Where the law governing an undertaking is not that of a Member State, the law applicable shall be the law of the Member State within whose territory the representative of the undertaking or, in the absence of such a representative, the central management of the group undertaking which employs the highest number of employees in any one Member State, is situated.
(10) Where, in the case of a conflict of laws in the application of subsection (2) (except in its application in relation to subsection (3)), two or more undertakings from a group satisfy one or more of the criteria in subsection (2), the undertaking which satisfies the criterion in subsection (2) (c) shall be regarded as the controlling undertaking unless it is proved that another undertaking is able to exercise a dominant influence.
O.J. No. L395, 30.12.1989, p. 1.
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paragraphs: —(1) Subject to subsections (3), (4) and (5), the obligations under this Act shall not apply to Community-scale undertakings or Community-scale groups of undertakings in which, on the commencement of this Act or the 22nd day of September, 1996, whichever is the earlier, there is or was in force within the same Community-scale undertaking or Community-scale group of undertakings an agreement covering the entire workforce providing for the transnational information and consultation of employees, and while that agreement remains in force.
(2) An agreement referred to in subsection (1) may comprise multiple agreements within the same Community-scale undertaking or group of undertakings if, construed together, they satisfy the requirements of that subsection.
(3) At any time before an agreement referred to in subsection (1) expires or within the period of six months immediately after it expires, the parties to the agreement may jointly renew it for such further period as they think fit.
(4) An agreement renewed under subsection (3) within the six months period referred to in that subsection shall be deemed to have remained in force from the date it would otherwise have expired.
(5) Where an agreement is not renewed in pursuance of subsection (3) before its expiration or before the expiration of the six months period referred to in that subsection, this Act shall, on the expiration of that six months period, but not before, apply in full to and in relation to the Community-scale undertaking or group of undertakings to which the agreement applied.
(6) An agreement referred to in subsection (1) shall be presumed to be valid unless proved to the contrary, and shall remain in force—
(a) for such period, if any, as is specified in the agreement or the agreement as renewed; or
(b) in the case of an open ended agreement, until it is brought to an end in accordance with its terms.
(7) An agreement referred to in subsection (1) shall not be valid unless it has been accepted by a majority of the workforce to which it applies.
(8) In this section “agreement” includes an open ended agreement subject to review and alteration by the parties.
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paragraphs: —(1) The Minister may make such regulations as are necessary for the purpose of giving effect to this Act and in particular in relation to—
(a) expenses to be borne by the central managements in relation to undertakings and groups of undertakings;
(b) the appointment of an arbitrator for the purposes of section 20 and the terms and conditions to which such an appointment shall be subject;
(c) the powers and procedures of arbitrators, and the conduct of arbitration proceedings, under sections 20 and 21 ; and
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paragraphs: —(1) In order to improve the right of employees in Community-scale undertakings and Community-scale groups of undertakings to be informed and consulted, a European Works Council or arrangements for the information and consultation of employees shall be established in every such undertaking and group of undertakings in the manner and under terms, and with the effects, laid down in this Act.
(2) Where a Community-scale group of undertakings consists of one or more undertakings or groups of undertakings which in themselves are Community-scale undertakings or Community-scale groups of undertakings and the employees or their representatives request the establishment of a European Works Council or arrangements for the information and consultation of employees, the European Works Council or, where those arrangements require its establishment, a European Employees' Forum shall be established at the level of the group, unless an agreement referred to in section 11 (1) provides otherwise.
(3) Unless a wider application is provided for in an agreement referred to in section 11 (1), the powers and competence of or in relation to an arrangement for the information and consultation of employees (including a European Employees' Forum or an information and consultation procedure), or of a European Works Council established pursuant to this Act, shall—
(a) in the case of a Community-scale undertaking, cover all the establishments; and
(b) in the case of a Community-scale group of undertakings, cover all group undertakings,
located within the Member States.
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paragraphs: —(1) The central management shall be responsible for creating the conditions and means necessary for the setting up of an arrangement for the information and consultation of employees, as required by section 8 (1), in a Community-scale undertaking and a Community-scale group of undertakings.
(2) Subject to subsection (3), where the central management is not located in a Member State, the central management's representative agent in the State, which must be the management of an establishment or part-undertaking of the undertaking or group of undertakings and nominated in writing for that purpose by the central management if not otherwise appointed, shall assume the responsibility referred to in subsection (1).
(3) In the absence of a representative referred to in subsection (2), the management of the establishment or group undertaking in which the greatest number of employees are employed in any one Member State shall assume the responsibility referred to in subsection (1).
(4) For the purposes of this Act, the representative or representatives or, in the absence of any such representative, the management referred to in subsection (3), shall be regarded as the central management.
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paragraphs: —(1) In order to facilitate the information and consultation of employees in Community-scale undertakings and Community-scale groups of undertakings, the central management may on its own initiative, or shall at the written request of at least a total of 100 employees or their representatives spread over at least two undertakings or establishments one or more of which are in one Member State and the other or others of which are in at least one other Member State, establish a Special Negotiating Body to negotiate with the central management for the establishment of a European Employees' Forum or an information and consultation procedure.
(2) For the purposes of subsection (1), “representatives” includes those employees' representatives already recognised by the undertaking or group of undertakings for collective bargaining or information and consultation purposes.
(3) (a) A request by employees for the establishment of a Special Negotiating Body shall be addressed to the central management but may be lodged with the local management where the identity or location of the central management is not readily discernible to the employees or their representatives making the request.
(b) Where the request is lodged with the local management, the local management shall ensure that the request is passed on to the central management within a period of 15 working days from its receipt.
(c) Any avoidable or unreasonable delay after that period in the transmission of the request to the central management shall not of itself extend the six month period referred to in section 13 (1) (b).
(4) A Special Negotiating Body shall be established in accordance with the following:
(a) subject to paragraphs (b) and (c), the Body shall have not less than three but not more than 17 members elected or appointed in accordance with this Act;
(b) each Member State in which the Community-scale undertaking has one or more establishments, or in which the Community-scale group of undertakings has the controlling undertaking or one or more controlled undertakings, shall be represented by at least one member;
(c) there shall be the following additional members in proportion to the number of employees employed in the establishments, the controlling undertaking or the controlled undertakings:
(i) one additional member from a Member State where between 25 per cent. and 50 per cent. of the employees of the undertaking or group of undertakings are employed;
(ii) two additional members from a Member State where more than 50 per cent. but not more than 75 per cent. of the employees of the undertaking or group of undertakings are employed;
(iii) three additional members from a Member State where more than 75 per cent. of the employees of the undertaking or group of undertakings are employed;
(d) employees' representatives from countries that are not within the Community may be permitted to participate in the meetings and activities of the Body but shall not be entitled to a vote.
(5) The central management and local managements shall be informed by notice in writing of the composition of the Special Negotiating Body as soon as practicable after the election or appointment of its members.
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paragraphs: —(1) Subject to subsection (4) and section 12 (8), the function of the Special Negotiating Body shall be to negotiate with the central management for a written agreement or agreements for the establishment of arrangements for the information and consultation of employees and determining the matters referred to in section 12 (3), (4) or (5).
(2) With a view to the conclusion of an agreement referred to in subsection (1), the central management shall convene a meeting with the Special Negotiating Body and shall inform local managements accordingly.
(3) The Special Negotiating Body may be assisted by experts of its choice.
(4) The Special Negotiating Body may decide, by at least two-thirds of the votes of its members present and entitled to vote at the meeting, not to open negotiations referred to in subsection (1), or to terminate negotiations already opened.
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paragraphs: —(1) The central management and the Special Negotiating Body shall carry out the negotiations referred to in section 11 (1) in a spirit of co-operation with a view to reaching an agreement or agreements.
(2) An arrangement for the information and consultation of employees referred to in section 11 (1) may invoke the establishment of a European Employees' Forum but the parties may also agree to establish one or more information and consultation procedures instead of a European Employees' Forum.
(3) Without prejudice to the autonomy of the parties or the generality of section 11 (1), an agreement making arrangements for the information and consultation of employees, whether it involves the establishment of a European Employees' Forum or an information and consultation procedure, shall determine—
(a) the undertakings of the Community-scale group of undertakings, or the establishments of the Community-scale undertaking, covered by the agreement,
(b) the duration of the agreement and, subject to subsection (8), the procedure for its re-negotiation, and
(c) by what method the information conveyed to employees' representatives shall be conveyed to employees in the State and the opinion of employees given on the information so conveyed shall be recorded, irrespective of the Member State in which the central management is located.
(4) Where an agreement requires the establishment of a European Employees' Forum, it shall also determine—
(a) the composition of the Forum, the number of members, the allocation of seats and the term of office,
(b) the functions, and the procedure for information and consultation, of the Forum,
(c) the venue, frequency and duration of meetings of the Forum, and
(d) the financial and other resources to be allocated to the Forum.
(5) Where an agreement requires the establishment of an information and consultation procedure, it shall also determine—
(a) what that procedure shall be,
(b) the issues for information and consultation,
(c) the methods according to which the employees' representatives in the different Member States can meet for exchange of views regarding the information conveyed to them, and
(d) the financial and other resources to be allocated to ensure the operation of the procedure and the holding of the meetings referred to in paragraph (c).
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paragraphs: —(1) The subsidiary requirements set out in the Second Schedule shall apply to an undertaking or group of undertakings, and a European Works Council shall be established—
(a) where the central management and the Special Negotiating Body so agree,
(b) where the central management refuses to commence negotiations within six months of a request referred to in section 10 (1), or
(c) where after the expiration of a period of three years from the date of the request, the parties are unable to conclude an agreement and the Special Negotiating Body has not taken the decision provided for in section 11 (4).
(2) Where the subsidiary requirements apply to an undertaking or group of undertakings, the central management shall as soon as practicable, but in any case not later than six months after they first become applicable, comply with the requirements.
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paragraphs: —Employees' representatives who represent employees employed in the State on a Special Negotiating Body, European Works Council or European Employees' Forum, or in relation to an information and consultation procedure, shall be—
(a) elected by those employees,
(b) appointed by those employees as determined by them, or
(c) appointed by the central management on a basis agreed with those employees,
and on written notification to the central management of their election or appointment being given shall, unless the contrary is proved, be regarded as having been duly elected or appointed.
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paragraphs: —(1) Subject to subsection (2) and section 20 , a person who is or at any time was—
(a) a member of—
(i) a Special Negotiating Body,
(ii) a European Employees' Forum, or
(iii) a European Works Council,
or
(b) an employees' representative to an information and consultation procedure,
shall not reveal any information expressly provided in confidence to him or her or to the Body, Forum or Council.
(2) A person may, in accordance with his or her duties as a member, expert or employees' representative to the procedure, disclose such information—
(a) to the Body, Forum or Council of which he or she is or was then a member,
(b) to another employees' representative to the procedure, or
(c) to the member, body or person he or she is or was then employed to advise.
(3) The central management may withhold from a Special Negotiating Body, European Employees' Forum, European Works Council or in connection with an information and consultation procedure, information that it claims is commercially sensitive—
(a) where it can show that the disclosure would be likely to prejudice significantly and adversely the economic or financial position of an undertaking or group of undertakings or breach statutory or regulatory rules, or
(b) where the information is of a kind that meets objective standards for determining that it should be withheld agreed between the central management and the Special Negotiating Body, European Employees' Forum, European Works Council or the employees' representatives to an information and consultation procedure.
(4) In this section “member” and “employees' representative to an information and consultation procedure” includes a person who at any time, as an expert, assists or assisted such a member or person.
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paragraphs: —The central management and the employees' representatives, in the framework of an arrangement for the information and consultation of employees (being either a European Employees' Forum or an information and consultation procedure) or a European Works Council, shall work in a spirit of co-operation with due regard to their reciprocal rights and obligations.
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paragraphs: —(1) Employees' representatives who are employees and who perform their functions in accordance with this Act shall not—
(a) be dismissed or suffer any unfavourable change in their conditions of employment or any unfair treatment, including selection for redundancy, or
(b) suffer any other action prejudicial to their employment,
because of their status or reasonable activities as employees' representatives.
(2) Employees' representatives shall be afforded such reasonable facilities, including time off, as will enable them to carry out their functions as employees' representatives promptly and efficiently.
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paragraphs: —(1) An undertaking or group of undertakings the central management of which refuses to provide information about the workforce numbers or status of employees for the purposes of section 4 or unreasonably and wilfully obstructs or delays the provision of such information, shall be guilty of an offence.
(2) An undertaking or group of undertakings the central management of which does not comply with the requirements referred to in section 13 (2) applicable to it shall be guilty of an offence.
(3) A person to whom section 15 (1) applies who, except as permitted by section 15 , reveals information expressly provided in confidence to him or her, the Body, Forum or Council of which he or she is a member, or the member or body he or she is employed to advise, shall be guilty of an offence.
(4) Where an offence under this Act which is committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person who, when the offence was committed, was a director, manager, secretary or other similar officer of the body or a person who was purporting to act in such capacity, that person (as well as the body corporate) shall be guilty of an offence and liable to be proceeded against and punished as if guilty of the offence committed by the body corporate.
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paragraphs: —(1) A person guilty of an offence under section 18 (1) or (2) shall be liable—
(a) on summary conviction, to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both the fine and the imprisonment, or
(b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding three years or to both the fine and the imprisonment.
(2) If the offence under section 18 (1) or (2) of which a person was convicted is continued after conviction, the person shall be guilty of a further offence on every day on which the act or omission constituting the offence continues, and for each such further offence the person shall be liable on summary conviction to a fine not exceeding £200 or on conviction on indictment to a fine not exceeding £1,000.
(3) A person guilty of an offence under section 18 (3) shall be liable—
(a) on summary conviction, to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both the fine and the imprisonment, or
(b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding three years or to both the fine and the imprisonment.
(4) Proceedings in relation to a summary offence under section 18 may be brought and prosecuted by the Minister for Enterprise and Employment.
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paragraphs: —(1) Disputes between the central management and employees (or their representatives) employed in the State concerning the withholding by the central management of commercially sensitive information or as to whether information disclosed by the central management in confidence to employees' representatives is of a kind that, pursuant to section15 , may not be revealed, may be referred by either the central management or employees' representatives to an independent arbitrator appointed by the Minister under regulations made for the purposes of this section.
(2) An arbitrator appointed under subsection (1) shall be paid, from moneys made available for that purpose by the Oireachtas, such fees as the Minister, with the consent of the Minister for Finance, may determine.
(3) The parties to an arbitration under this section shall each bear their own costs.
(4) The procedure adopted by the arbitrator shall, as far as practicable, protect the confidentiality of the information concerned.
(5) A party to an arbitration under this section may not appeal to a court against a determination of the arbitrator except on a point of law.
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paragraphs: —(1) Disputes between the central management and employees (or their representatives) concerning the interpretation or operation of an agreement referred to in section 11 (1) may be referred by either the central management or employees' representatives to an independent arbitrator appointed, on such terms as to remuneration or otherwise, as agreed between the parties.
(2) If the parties cannot reach agreement on the appointment or terms of appointment of an arbitrator, either of them may apply to the Labour Court established by section 10 of the Industrial Relations Act, 1946 , which shall refer the dispute to the arbitration of one or more persons as it thinks fit.
(3) An arbitrator to whom under subsection (2) a dispute is referred shall be paid such fees as the Minister, with the consent of the Minister for Finance, may determine, which fees shall be paid by the parties or a party to the arbitration as directed by the arbitrator.
(4) An arbitrator to whom under subsection (2) a dispute is referred shall make his or her determination on the basis of the written submissions of the parties, but may conduct a hearing, at which both parties may be present, if he or she thinks the circumstances of the case require it.
(5) Subject to subsection (3), the parties to an arbitration under this section shall bear their own costs.
(6) A party to an arbitration under this section may not appeal to a court against a determination of the arbitrator except on a point of law.
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paragraphs: —This Act shall apply without prejudice to—
(a) the Protection of Employment Act, 1977 , as amended,
(b) the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations, 1980 ( S.I. No. 306 of 1980 ).
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paragraphs: —The Arbitration Acts, 1954 and 1980, shall not apply to or in relation to an arbitration under section 20 or 21 .