Case Number: IC/8/(2006)
CENTRAL ARBITRATION COMMITTEE
THE INFORMATION AND CONSULTATION OF EMPLOYEES
REGULATIONS 2004
DECISION ON A COMPLAINT UNDER REGULATION 19(4)
The
Parties:
Amicus (as Employees’
Representative)
and
Macmillan Publishers Ltd
A - INTRODUCTION
1. Amicus (“the
2. The CAC gave the
3. In accordance with section 263 of the
Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”), the CAC
Chairman established a Panel to deal with the case. The Panel consisted of Professor Roy Lewis,
Panel Chairman, and, as Members, Ms Lesley Mercer and Mr John Rugman. The Case Manager appointed to support the
Panel was Nigel Cookson.
B – BACKGROUND OF COMPLAINTS AND APPLICATIONS TO
THE CAC
4. In order to understand the present
complaint, it is necessary to place it in the context of the previous
complaints and applications made against the Employer.
Complaint under Regulation 6
5. On
6. The Employer had in fact disclosed that
it employed 1,350 staff in the
7. By a decision dated
8. By a fax dated
9. This complaint shed light on the nature
of the Employer’s undertaking. It was
part of the Employer’s argument, recorded in the CAC’s decision, that Macmillan
Publishers Ltd, which was in the business of publishing and distributing books
and journals, was an undertaking within the meaning of the Regulations. That was common ground. Further, although the Employer contested the
The employee request to the CAC
10. By a covering letter dated
11. A Case Manager, Kate Norgate, conducted a
cross-check of the names on the petition against a list of employees in the
undertaking provided by the Employer. On
12. The Panel considered that it needed
information about the employee request in addition to that contained in the Case
Manager’s letters. In particular, it
wished to know the proposition on the petition and also the span of time within
which it was signed. Accordingly, on
13. By an email dated 9 February, which was
copied to the Employer and the
Application for union recognition
14. Finally, on
C – THE PRESENT COMPLAINT AND THE EMPLOYER’S
RESPONSE
The complaint
15. The complaint dated
16. According to the complaint, (a) the
employees had requested information and consultation arrangements on
On the
17. The Employer submitted to the CAC a
response dated
18. Like the complaints form, the employer’s
response form sets out a series of questions with corresponding boxes in which
to insert the answers.
The
relevant questions and answers were as follows:
Do you accept that you are,
or were, under an obligation to conduct negotiations to reach agreement on
information and consultation arrangements?
If the answer to question 2
is yes, please give the dates on which negotiations took place and state the
outcome of those negotiations.
Agreement reached with
approximately 80% of
Do you accept that the
standard information and consultation provisions apply to your undertaking?
If the answer to question 5
is yes, please explain below whether you have taken steps, or intend to take
steps, to elect information and consultation representatives
Clarification of the Employer’s position
19. Having considered the Employer’s response,
the Panel had concerns about whether the answers were compatible with the
Regulations. Pursuant to Regulation
35(2)[3],
it decided to ask the Employer further questions. The purpose was to give the Employer an
opportunity to clarify its position. The
Panel’s questions were set out in a letter dated
How and when did the Employer
respond to the employee request dated
Through discussions as above[4]
Given that it is accepted by
the Employer that the standard information and consultation provisions apply
(see
Consultative Committees
(above) consist of elected representatives.
Given that it is accepted by
the Employer that it was under an obligation to conduct negotiations to reach
agreement on information and consultation arrangements (see
Correct.
Is the Employer seeking to
argue that there are one or more negotiated agreements within the meaning of
Regulations 2, 14 and 16 in place and arising from either a valid employee
request or an employer notification?
No, pre-existing voluntary
agreements.
Alternatively, is the
Employer seeking to argue that there are one or more pre-existing agreements,
within the meaning of Regulations 2 and 8 in place?
Yes.
Put positively, what defence,
if any, is the Employer offering to the complaint?
The Employer contends that it
has appropriate mechanisms in place for information and consultation of
employees and that they enjoy the support of representatives of a significant
majority of the workforce.
The
20. The Employer’s letter was forwarded to the
21. The Employer was copied into the
D – THE LAW
22. The disposal of this complaint involves the
application of several provisions under the Regulations. It is therefore necessary to understand both
the overall scheme of the Regulations and the detail of the specific provisions
that have to be applied. Due to the
complexity of the Regulations, this is not a simple task. However, it is much assisted by Elias P’s
analysis of the Regulations in Stewart v Moray Council ([2006] IRLR 592
(EAT)).
Overview of the Regulations
23. The Regulations are intended to give effect
to European Directive 2002/13/EC, which established a general framework for
informing and consulting employees. They
impose obligations on larger employers to put in place arrangements to ensure
that employees are informed and consulted on a wide range of issues. The Regulations currently apply to
undertakings with at least 150 employees: Regulation 3 and Schedule 1. If there is a valid request by at least 10%
of the employees, an employer covered by the Regulations is obliged to initiate
a negotiating process to establish information and consultation arrangements:
Regulation 7. Once the request is made
the employer must undertake negotiations to seek to reach an agreement on
information and consultation arrangements: Regulation 14. The Regulations provide for how the employer
is to conduct the negotiations to establish such an agreement and the
conditions such an agreement must meet: Regulations 14-16. If agreement is not reached within a
prescribed period following a valid employee request, the standard information
and consultations provisions apply; they require the employer to inform and
consult within a statutory regime: Regulation 18-20.
24. Once faced with a valid employee request,
Regulation 8 provides the employer with the only way envisaged by the
Regulations of avoiding the obligations in respect of reaching an information
and consultation agreement and, failing that, being subjected to the standard
information and consultation provisions.
Regulation 8 may apply if at the date of the valid employee request one
or more “pre-existing agreement(s)” are in place and the employee request has
been made by fewer than 40% of employees in the undertaking. In such circumstances the employer may,
subject to certain conditions, hold a ballot in which the employees vote on
whether they support the request for a negotiated agreement. Unless the ballot shows that a majority of
those voting and 40% of the employees in the undertaking endorse the employee
request, the employer need not take the prescribed steps to secure a negotiated
agreement but may continue to operate the pre-existing agreement(s) by way of
compliance with the Regulations.
25. The final point in this overview concerns
enforcement. The CAC may issue
declarations and make orders. A
declaration or order made by the CAC may be relied on as if it is a declaration
or order made by the High Court: Regulation 35(4). In respect of the main consultation duties –
failures to consult in accordance with a negotiated agreement or the standard
provisions – a CAC declaration may be followed by a separate application to the
EAT for a penalty notice: Regulation 22.
The EAT can impose a penalty of up to £75,000: Regulation 23.
26. As regards the specific provisions, it is
necessary to consider in detail the material parts of the Regulations dealing
with undertakings, valid employee requests, negotiated agreements, pre-existing
agreements, and the standard information and consultation provisions.
The undertaking
27. Regulation 2 defines an undertaking as a:
public or private undertaking carrying out an economic activity, whether or not operating for gain.
Valid employee request
28. Regulation 2 defines an “employee request”
as follows:
A request by employees under Regulation 7 for the employer to initiate negotiations to reach an agreement under these Regulations.
29. Regulation 7 defines a “valid” employee
request. So far as is material, it
provides as follows:
Employee request to negotiate an agreement in respect of information and
consultation
7 (1) On receipt of a valid employee request,
the employer shall, subject to paragraph (8) and (9), initiate negotiations by
taking the steps set out in regulation 14(1).
(2) Subject to paragraph (3), an
employee request is not a valid employee request unless it consists of —
(a) a single request made by at
least 10% of the employees in the undertaking; or
(b) a number of separate
requests made on the same or different days by employees which when taken
together mean that at least 10% of the employees in that undertaking have made
requests, provided that the requests are made within a period of six months.
(3) Where the figure of 10% in
paragraph (2) would result in less than 15 or more than 2,500 employees being
required in order for a valid employee request to be made, that paragraph shall
have effect as if, for the figure of 10%, there were substituted the figure of
15, or as the case may be, 2500.
(4) An employee request is not a
valid employee request unless the single request referred to in paragraph
(2)(a) or each separate request referred to in paragraph (2)(b) —
(a) is in writing;
(b) is sent to —
(i) the registered office, head
office or principal place of business of the employer; or
(ii) the CAC; and
(c) specifies the names of the
employees making it and the date on which it is sent.
(5) Where a request is sent to
the CAC under paragraph (4)(b)(ii), the CAC shall —
(a) notify the employer that
the request has been made as soon as reasonably practicable;
(b) request from the employer
such information as it needs to verify the number and names of the employees
who have made the request; and
(c) inform the employer and the
employees who have made the request how many employees have made the request on
the basis of the information provided by the employees and the employer.
(6) Where the CAC requests
information from the employer under paragraph (5)(b), the employer shall
provide the information requested as soon as reasonably practicable.
(7) The date on which an
employee request is made is —
(a) where the request consists
of a single request satisfying paragraph (2)(a) or of separate requests made on
the same day satisfying paragraph (2)(b), the date on which the request is or
requests are sent to the employer by the employees or the date on which the CAC
informs the employer and the employees in accordance with paragraph (5)(c) of
how many employees have made the request; and
(b) where the request consists
of separate requests made on different days, the date on which —
(i) the request which results
in paragraph (2)(b) being satisfied is sent to the employer by the employees;
or
(ii) the CAC informs the
employer and the employees in accordance with paragraph (5)(c) of how many
employees have made the request where that request results in paragraph (2)(b)
being satisfied.
30. Regulation 12 imposes restrictions on the validity of an employee request in defined circumstances.
Pre-existing agreements
31. Regulation 2 defines a pre-exiting
agreement as follows:
an agreement between an employer and his employees or their
representatives which –
a) is made prior to the making of the employee request; and
b) satisfies the conditions set out in Regulation 8(1)(a) to (d)
32. Regulation 8, so far as is material,
provides as follows:
Pre-existing agreements: ballot for endorsement of employee request
8 (1) Subject to regulation 9, this regulation applies where a valid employee request has been made under regulation 7 by fewer than 40% of employees employed in the undertaking on the date that request was made and where there exists one or more pre-existing agreements which —
(a) are
in writing;
(b) cover
all the employees of the undertaking;
(c) have
been approved by the employees; and
(d) set out how the employer is
to give information to the employees or their representatives and seek their
views on such information.
(2) Where this regulation
applies, the employer may, instead of initiating negotiations in accordance
with regulation 7(1), hold a ballot to seek the endorsement of the employees of
the undertaking for the employee request in accordance with paragraphs (3) and
(4).
(3) The
employer must —
(a) inform the employees in
writing within one month of the date of the employee request that he intends to
hold a ballot under this regulation; and
(b) arrange for the ballot to
be held as soon as reasonably practicable thereafter, provided that the ballot
does not take place before a period of 21 days has passed since the employer
informed the employees under sub-paragraph (a).
(4) A
ballot must satisfy the following requirements —
(a) the employer must make such
arrangements as are reasonably practicable to ensure that the ballot is fair;
(b) all employees of the
undertaking on the day on which the votes may be cast in the ballot, or if the
votes may be cast on more than one day, on the first day of those days, must be
given an entitlement to vote in the ballot;
(c) the ballot must be
conducted so as to secure that —
(i) so far as is reasonably
practicable, those voting do so in secret; and
(ii) the votes given in the
ballot are accurately counted.
(5) Where the employer holds a
ballot under this regulation
(a) he must, as soon as
reasonably practicable after the date of the ballot, inform the employees of
the result; and
(b) if the employees endorse
the employee request, the employer is under the obligation in regulation 7(1)
to initiate negotiations; and
(c) if the employees do not
endorse the employee request, the employer is no longer under the obligation in
regulation 7(1) to initiate negotiations.
(6) For the purposes of
paragraph (5), the employees are to be regarded as having endorsed the employee
request if —
(a) at least 40% of the employees
employed in the undertaking; and
(b) the majority of the
employees who vote in the ballot,
have voted in favour of endorsing the request.
33. Regulation 14 sets out the way in which an
employer, following a valid employee request, must make arrangements for
negotiating an information and consultation agreement. In so far as it is material to the present
case, Regulation 14 provides as follows:
Negotiations to reach an agreement
14. (1) In order to initiate negotiations to reach an agreement under
these Regulations the employer must as soon as reasonably practicable —
(a) make arrangements,
satisfying the requirements of paragraph (2), for the employees of the
undertaking to elect or appoint negotiating representatives; and thereafter
(b) inform the employees in
writing of the identity of the negotiating
representatives; and
(c) invite the negotiating
representatives to enter into negotiations to reach a negotiated agreement.
(2) The requirements for the
election or appointment of negotiating representatives under paragraph (1)(a)
are that —
(a) the election or appointment
of the representatives must be arranged in such a way that, following their
election or appointment, all employees of the undertaking are represented by
one or more representatives; and
(b) all employees of the
undertaking must be entitled to take part in the election or appointment of the
representatives and, where there is an election, all employees of the undertaking
on the day on which the votes may be cast in the ballot, or if the votes may be
cast on more than one day, on the first day of those days, must be given an
entitlement to vote in the ballot.
34. The minimum conditions for a negotiated
agreement are in Regulation 16, which provides as follows:
Negotiated agreements
16. (1) A negotiated agreement must cover all employees of the
undertaking and may consist either of a single agreement or of different parts
(each being approved in accordance with paragraph (4)) which, taken together,
cover all the employees of the undertaking.
The single agreement or each part must —
(a) set out the circumstances
in which the employer must inform and consult the employees to which it
relates;
(b) be in writing;
(c) be dated;
(d) be approved in accordance
with paragraph
(e) be signed by or on behalf
of the employer; and
(f) either —
(i) provide for the appointment
or election of information and consultation representatives to whom the
employer must provide the information and whom the employer must consult in the
circumstances referred to in sub-paragraph (a); or
(ii) provide that the employer
must provide information directly to the employees to which it relates and
consult those employees directly in the circumstances referred to in
sub-paragraph (a).
(2) Where a negotiated agreement
consist of different parts they may provide differently in relation to the
matters referred to in paragraphs (1)(a) and (1)(f).
(3) A negotiated agreement
consisting of a single agreement shall be treated as being approved for the
purpose of paragraph (1)(d) if —
(a) it has been signed by all
the negotiating representatives; or
(b) it has been signed by a
majority of negotiating representatives and either —
(i) approved in writing by at
least 50% of employees employed in the undertaking, or
(ii) approved by a ballot of
those employees, the arrangements for which satisfied the requirements set out
in paragraph (5), in which at least 50% of the employees voting, voted in
favour of approval.
(4) A part shall be treated as
being approved for the purpose of paragraph (1)(d) if the part —
(a) has been signed by all the
negotiating representatives involved in negotiating the part; or
(b) has been signed by a
majority of those negotiating representatives and either—
(i) approved in writing by at
least 50% of employees (employed in the undertaking) to which the part relates,
or
(ii) approved by a ballot of
those employees, the arrangements for which satisfied the requirements set out
in paragraph (5), in which at least 50% of the employees voting, voted in
favour of approving the part.
(5) The ballots referred to in
paragraph (3) and (4) must satisfy the following requirements —
(a) the employer must make such
arrangements as are reasonably practicable to ensure that the ballot is fair;
(b) all employees of the
undertaking or, as the case may be, to whom the part of the agreement relates,
on the day on which the votes may be cast in the ballot, or if the votes may be
cast on more than one day, on the first day of those days, must be given an
entitlement to vote in the ballot; and
(c) the ballot must be
conducted so as to secure that —
(i) so far as is reasonably
practicable, those voting do so in secret; and
(ii) the votes given in the
ballot are accurately counted.
(6) Where the employer holds a
ballot under this regulation he must, as soon as reasonably practicable after
the date of the ballot, inform the employees entitled to vote of the result.
Standard information and consultation provisions
35. The application of the standard information
and consultation provisions is set out in Regulation 18, which so far as is
material, provides as follows:
Application of standard information and consultation provisions
18. (1) Subject to paragraph 2-
(a) where the employer is under
a duty, following the making of a valid employee request or issue of a valid
employer notification, to initiate negotiations in accordance with Regulation
14 but does not do so, the standard information and consultation provisions
shall apply from the date-
(i) which is six months from
the date on which the valid employee request was made or the valid employee
notification was issued, or
(ii) information and
consultation representatives are elected under Regulation 19.
36. Regulation 19 provides for the election of
information and consultation representatives prior to the application of the
standard information and consultation provisions and allows for a complaint to
be lodged with the CAC should an employer fail to arrange for the holding of a
ballot. Regulation 19, under which the
present complaint is brought, provides as follows:
Election of information and consultation representatives
19. (1) Where the standard information and
consultation provisions are to apply, the employer shall, before the standard
information and consultation provisions start to apply, arrange for the holding
of a ballot of its employees to elect the relevant number of information and
consultation representatives.
(2) The provisions in Schedule 2
to these Regulations apply in relation to the arrangements for and the conduct
of any such ballot.
(3) In this regulation the
“relevant number of information and consultation representatives” means one
representative per fifty employees or part thereof, provided that that number
is at least 2 and does not exceed 25.
(4) An employee or an employee’s
representative may complain to the CAC that the employer has not arranged for
the holding of a ballot in accordance with paragraph (1).
(5) Where the CAC finds the
complaint well-founded, it shall make an order requiring the employer to
arrange, or re-arrange, and hold the ballot.
(6) Where the CAC finds a
complaint under paragraph (4) well-founded, the employee or the employee’s representative
may make an application to the Appeal Tribunal under regulation 22(6) and
paragraphs (7) and (8) of that regulation shall apply to any such application.
37. Regulation 20 sets out the content of the standard information and consultation requirements.
Duty of co-operation
38. Regulation 21 sets out the duty of
co-operation between the parties. It
provides as follows:
Co-operation
21. The parties are under a duty,
when negotiating or implementing a negotiated agreement or when implementing the
standard information and consultation provisions, to work in a spirit of
co-operation and with due regard for their reciprocal rights and obligations,
taking into account the interests of both the undertaking and the employees.
E – THE PANEL’S CONCLUSIONS
The undertaking
39. Against the background of the points made
at paragraphs 5-9 above, the Panel reaches two conclusions. First, Macmillan Publishers Ltd was a private
undertaking carrying out an economic activity and was therefore an undertaking
within the meaning of Regulation 2.
Second, the sites or establishments making up the undertaking were those
listed in the Employer’s fax dated 3 March 2006, namely, 2 sites in London
(Crinan Street and New Wharf Road), and further sites in Basingstoke, Oxford,
Eaton Socon, and Swansea.
Valid employee request
40. The next issue for the Panel is whether
there was a valid employee request.
Although this is asserted by the
41. In the light of the wording of the
proposition contained in the employees’ petition (described at paragraph 13
above) that was sent to the CAC under covering letter of 15 March 2006, the
Panel concludes that there was a request by employees under Regulation 7 for
the Employer to initiate negotiations to reach an agreement under the
Regulations. It therefore constituted an
employee request within the meaning of Regulation 2.
42. The employee request is effective only if it
is valid within the meaning of Regulation 7.
Regulation 7 envisages a request or requests being “made”. The making of a request or requests involves
rather more than an individual employee’s signature on a petition. It must also involve communicating a request
to the employer or the CAC, which then notifies the employer of the request
under Regulation 7(5). This is confirmed
by Regulation 7(7), which defines the date on which an employee request is
made. Under Regulation 7(7) the date on
which an employee request satisfying Regulation 7(2) is made is the date on
which it is sent to the employer, or the date on which the CAC informs the
employer and the employees, in accordance with Regulation 7(5)(c), of how many
employees have made the request. Assuming
for the moment that Regulation 7(2) was satisfied in this case, the date on
which the employee request was made was the date on which the CAC gave
notification to the employer and the employees under Regulation 7(5)(c), that
is,
43. It is now necessary to consider Regulation
7(2). If the employee request was a
single request within the meaning of Regulation 7(2)(a), which the Panel
considers it was, it was made by 196 employees out of a total of 1,372, that
is, 14.29% (see paragraph 11 above). It
therefore satisfied the test of being made by at least 10% of employees, as
required by Regulation 7(2)(a).
44. The reason why the Panel considers that
there was a single employee request is that the entire request was sent to the
CAC in a single communication on
45. Alternatively, if the Panel is wrong about
there having been a single request within Regulation 7(2)(a), it must consider
whether or not the employee request consisted of a number of separate requests
within the meaning of Regulation 7(2)(b).
It is to be noted that Regulation 7 (2)(b) expressly envisages that a
number of separate requests can be made on the same day. In the present case the number of separate
requests were all sent to the CAC under Regulation 7(5)(c) on the same day, on
46. A valid employee request must also satisfy
the tests in Regulation 7(4). The Panel
considers that these tests are satisfied in respect of either a single request
or each separate request in the light of the following. The request or each separate request was in
writing, was sent to the CAC, specified the names of the employees making it
and the date on which it was sent to the CAC, that is,
47. Finally, the validity of the employee
request was not restricted by any of the provisions contained in Regulation
12.
48. It follows that there was a valid employee
request, alternatively requests, in the present case.
49. The Employer’s response dated
Pre-existing agreements?
50. Faced with a valid employee request an
employer is required to commence negotiations under Regulation 14, unless it
can rely on Regulation 8. In order to
rely on Regulation 8, (a) there must be in existence pre-existing agreements
within the meaning of the Regulations; (b) the employee request is made by
fewer than 40% of the employees in the undertaking; (c) the employer takes the
steps specified in Regulation 8 to ballot the employees; and (d) the outcome of
the ballot indicates that the employees have not endorsed the employee request.
51. The first question for the Panel to
determine is whether there were pre-existing agreements in place within the
undertaking. Such agreements must be
made prior to the making of the employee request: Regulation 2. In addition, they must satisfy the conditions
set out in Regulation 8(1) namely, (a) they are in writing; (b) cover all the
employees of the undertaking; (c) have been approved by the employees; and (d)
set out how the employer is to give information to the employees or their
representatives and seek their views on such information.
52. In this case the employee request was made,
within the meaning of Regulation 7(7)(a), on
53. In any event, there is no evidence that the
Employer notified the employees within one month of 6 April 2006 of its
intention to hold a ballot, as required by Regulation 8(3)(a), or conducted a
ballot in accordance with the requirements of Regulation 8(3)(b) and 8(4)-(5),
or that the outcome of the ballot was as envisaged by Regulation 8(6).
54. The Panel therefore concludes that the
Employer is not able to rely on pre-existing agreements under Regulation 8 by
way of an escape from its duty to initiate negotiations under Regulation
14.
55. However, there is an alternative way of
reading the Employer’s response form, as clarified in the letter of
Negotiated agreements?
56. On receipt of a valid request, an employer
must initiate negotiations by taking the steps set out in Regulation 14. The required steps must be taken as soon as
is reasonably practicable. They consist
of the making of arrangements for all the employees of the undertaking to elect
or appoint negotiating representatives, informing the employees of the identity
of the negotiating representatives and inviting those representatives to enter
into negotiations to reach a negotiated agreement. Regulation 14 goes on to impose time limits
for making a negotiated agreement or agreements. The resultant negotiated agreement(s) must,
by virtue of Regulation 16, cover all employees of the undertaking. Regulation 16 goes on to impose detailed
rules about the approval of such agreements by the representatives and/or the
employees.
57. It is clear that the agreements described
at
58. The Panel therefore concludes that the
Employer has not taken the necessary steps under Regulation 14 to reach a
negotiated agreement and that no negotiated agreement under Regulation 16 is in
place.
Application of Regulations 18
59. The Panel finds that the Employer was under
a duty to initiate negotiations pursuant to Regulation 14 but failed to do
so. In such circumstances Regulation 18
comes into operation. Under Regulation
18(1)(a), the standard information and consultation provisions apply from the
date which is six months from the date on which the valid employee request was
made or from the date that information and consultation representatives were
elected under Regulation 19, whichever is the sooner.
60. The Panel will shortly conclude that in the
present case information and consultation representatives were not
elected. It follows that under
Regulation 18(1)(a), the standard information and consultation provisions
applied, or rather should have applied, six months from the date on which the
valid employee request was made. This
request was made, within the meaning of the Regulations, on
Employer’s breach of Regulation 19(1)
61. Under Regulation 19(1), where the standard
information and consultation provisions are to apply, the employer must –
before they start to apply – arrange for the holding of a ballot of its
employees to elect the relevant number of information and consultation
representatives. This ballot is subject
to the provisions of Schedule 2, which among other things may require the
appointment of an independent ballot supervisor.
62. In the present case there is no evidence
that the Employer arranged for the election of information and consultation
representatives, as specifically required by Regulation 19 and Schedule 2. Accordingly, the Panel concludes that the
Employer failed to carry out its duty under Regulation 19(1).
63. This breach enables the
Regulation 21
64. The
65. Although the Employer is not in breach of
the co-operation duty, the Panel considers that the Employer’s conduct of this
case merits comment. The Employer has
had an extensive exposure to the CAC, as described in Section B above. Given the number of employees in the
undertaking – in excess of 1,350 – Macmillan Publishers Ltd cannot be described
as a small employer. Further, it has a
Group Personnel Director. Despite all of
this, when faced with the present complaint under Regulation 19, the Employer did
not, in terms of the Regulations, respond in a clear or coherent way.
DECISION AND ORDER
The complaint of the Union, as an employee’s
representative, under Regulation 19(4) that the Employer has not arranged for
the holding of a ballot of its employees to elect the relevant number of
information and consultation representatives is well-founded.
Pursuant to Regulation 19(5), it is ORDERED THAT:
The Employer shall arrange for the holding of a
ballot of its employees to elect the relevant number of information and
consultation representatives in accordance with Regulation 19(1) and the
provisions of Schedule 2 to the Regulations.
Professor Roy Lewis, Panel Chairman
Ms Lesley Mercer
Mr John Rugman
[1] A complaint must be in writing and in such form as the CAC requires: Regulation 35(1).
[2] This
answer was only partially legible; a typed version was provided by the Employer
in a letter dated
[3] In considering a complaint the CAC may make such inquiries as it sees fit: Regulation 35(2).
[4] “Above”
was a reference to the
[5] If,
contrary to the Panel’s analysis, a request consists merely of employee
signatures, then the test in paragraph 7(2)(b) is still satisfied because the
signatures were compiled within a six month period - from