Case Number: IC/8/(2006)

16 February 2007

 

 

 

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 Union”), as an employees’ representative, submitted to the CAC a complaint dated 30 November 2006 against Macmillan Publishers Ltd (“the Employer”) under Regulation 19(4) of the Information and Consultation of Employees Regulations 2004 (“the Regulations”).  Under Regulation 19(4) an employee or an employees’ representative may complain that an employer has not arranged for the holding of a ballot for the election of information and consultation representatives, as required by Regulation 19(1).

 

2.       The CAC gave the Union and the Employer notice of receipt of the application on 4 December 2006.

 

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 29 November 2005 the Union, as an employees’ representative, submitted a complaint to the CAC under Regulation 6(1).  It complained that the data that had been provided by the Employer for the purpose of Regulation 5 was incomplete in a material particular.  Regulation 5 entitles an employee or an employees’ representative to request data on the number of employees in an undertaking with a view to determining the number of employees constituting 10% for the purposes of making a valid employee request under Regulation 7. 

 

6.       The Employer had in fact disclosed that it employed 1,350 staff in the UK, of whom 1,232 were full-time employees and 118 were part-time.  However, it had declined to identify the individual sites making up its undertaking and it had not disclosed the number of employees within each site, as had been requested by the Union. 

 

7.       By a decision dated 22 February 2006 (IC/4/2005) the CAC decided that the complaint was well-founded.  Pursuant to Regulation 6(2), the Employer was ordered to disclose to the Union, as an employees’ representative, information that consisted of the establishments, sites and/or plants that the Employer considered made up the undertaking and the number of employees within each of those units.

8.       By a fax dated 3 March 2006 the Employer duly provided the relevant information to the Union, with a copy to the CAC.  For the purposes of the present complaint it is material to record that the Employer listed 2 sites in London (Crinan Street and New Wharf Road), and further sites in Basingstoke, Oxford, Eaton Socon, and Swansea and disclosed the number of employees based at each site.

 

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 Union’s complaint on other grounds, it did not deny that its undertaking was physically located at the various sites or establishments in relation to which the Union had made its data request.  As already noted, Regulation 5 envisages data requests for the purpose of determining the number of people employed by the employer’s undertaking in the UK. Consistently with the express language of Regulation 5, the Union’s data request was formulated in terms of a request to the Employer to “identify the establishments, sites and/or plants that they consider make up the undertaking”.  This formulation was reflected in the terms of the CAC’s order, which led to the Employer’s fax referred to in the previous paragraph.

 

The employee request to the CAC

 

10.     By a covering letter dated 15 March 2006, the Union sent to the CAC a petition that was signed by individual employees.  The Union was acting on behalf of these employees.  The letter was headed: “Information and Consultation of Employees Regulations 2004, Regulation 7 – employee request to negotiate an information and consultation agreement”. 

 

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 6 April 2006 she issued her findings in the form of separate letters (both erroneously dated 6 April 2005) to the Employer and to the Union, on the basis that the latter was acting on behalf of the employees.  Each letter stated that it was a notification under Regulation 7(5)(c).  The letters provided the following information: the total number of employees on the list provided by the Employer was 1,372, of whom 196 had made a request supported by their signatures for the establishment of information and consultation arrangements.  Other signatures were disregarded because they did not correspond to persons on the Employer’s list, or were duplicates, or were illegible.

 

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 9 February 2006 the Panel Chairman requested this information.

 

13.     By an email dated 9 February, which was copied to the Employer and the Union, the Panel was informed by Kate Norgate as follows.  The petition was in two forms: sheets of paper signed by up to 10 employees per sheet and postcards signed by individual employees.  Both the sheets and the cards were headed: “an employee request to initiate the process, which will lead to the negotiation of an information and consultation agreement”.  The proposition on the sheets was “we the undersigned request that our employer Macmillan Publishers Ltd initiates negotiations for an information and consultation agreement in accordance with the Information and Consultation of Employees Regulations 2004, Regulation 14”.  The proposition on the cards was the same, save that it began “I request that my employer” rather than “we the undersigned request that our employer”.  Taking the cards and sheets together, the petition was signed in the period from 1 December 2005 to 15 March 2006, although 7 of the effective 196 signatures were undated.

Application for union recognition

 

14.     Finally, on 8 June 2006 the Union lodged an application to the CAC on its own behalf and not as an employees’ representative under the wholly separate procedure contained in Schedule A1 of TULR(C)A.  It claimed that it should be recognised for collective bargaining by the Employer in respect of a bargaining unit comprising permanent warehouse workers at the Employer’s site in Swansea.  The application culminated in a CAC decision dated 3 October 2006 declaring that the Union should be recognised by the Employer in respect of the Union’s proposed bargaining unit (TUR1/518/2006).  The Employer and the Union then made an agreement on the method of collective bargaining and the union recognition case was closed.

 

C – THE PRESENT COMPLAINT AND THE EMPLOYER’S RESPONSE

 

The complaint

 

15.     The complaint dated 30 November 2006 was made on the form specified by the CAC for making complaints under Regulation 19(4)[1].  It was completed and signed by Jonathan Hayward of Amicus, who indicated on the form that he (and by inference Amicus) was acting in the capacity of an employees’ representative.  The complaint was submitted under a covering letter dated 29 November 2006 signed by 16 employees drawn from the Employer’s workplaces in Basingstoke, Oxford, Swansea and Crinan Street, London, who indicated that they had various representative positions.  They also requested that the CAC liaise with Jonathan Hayward of Amicus on their behalf.

 

16.     According to the complaint, (a) the employees had requested information and consultation arrangements on 15 March 2006, and (b) the date on which the standard information and consultation provisions applied or should have applied was 15 September 2006.  The complaint explained why the standard information and consultation provisions were considered to apply in the following terms:

 

On the 15 March 2006 the employees…submitted a valid request to negotiate an information and consultation agreement.  Unfortunately, the company failed to establish a negotiating body to negotiate an information and consultation agreement.  Therefore as provided for under Regulation 18(1)(a)(i), the company is required to apply the standard information and consultation provisions, within 6 months of the “valid request”, which they failed to do.  Furthermore under Regulation 19 the employer is also required to hold a ballot of its employees to elect the relevant number of information and consultation representatives before the standard information and consultations provisions apply, which the employer has failed to do.  We also believe that the company has shown totally (sic) disregard and is in serious breach of Regulation 21.

 

The Employer’s response

 

17.     The Employer submitted to the CAC a response dated 14 December 2006.  It was contained in the CAC’s specified form for an employer’s response to a complaint under Regulation 19(4) and was completed and signed on behalf of the Employer by James Richardson, Group Personnel Director. 

 

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?

 

Box 2 answer: Yes

 

If the answer to question 2 is yes, please give the dates on which negotiations took place and state the outcome of those negotiations.

 

Box 3 answer:[2]  The company has a longstanding consultative committee system of elected representatives, one committee for each site.

Basingstoke site: 10/6/05 and 13/7/05. Members unanimously agreed to the company proposal for a voluntary agreement.

London site (Pan Macmillan): 10/10/06.  Members unanimously agreed to the company proposal for a voluntary agreement.

London site (Crinan Street): 25/10/06.  All but one members (sic) have unanimously agreed to the company proposal for a voluntary agreement.

Oxford site: Discussions on-going.

Agreement reached with approximately 80% of UK Workforce.

 

Do you accept that the standard information and consultation provisions apply to your undertaking?

 

Box 5 answer: Yes

 

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

 

Box 6 answer: Existing elected committees in place and/or recent elections held to elect 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 8 January 2007 from the Case Manager.  The Employer’s answers were contained in a letter dated 15 January 2007.  The questions and corresponding answers were as follows:

 

How and when did the Employer respond to the employee request dated 15 March 2006?

 

Through discussions as above[4]

 

Given that it is accepted by the Employer that the standard information and consultation provisions apply (see box 5 of the Employer’s response), has the Employer arranged for a ballot for the election of information and consultation representatives as required by Regulation 19 and Schedule 2 of the Regulations?

 

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 box 2 of the Employer’s response), will the Employer confirm that it is not contesting that there has been a valid employee request within the meaning of Regulations 3 and 7?

 

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 Union’s comment

 

20.     The Employer’s letter was forwarded to the Union and its comments duly invited.  In a letter dated 23 January 2007 from Jonathan Hayward the Union commented that the Employer had blatantly disregarded the Regulations.  The Union submitted that the Employer was confused in its interpretation of the Regulations for several reasons. First, it did not contest that a valid employee request had been received.  Second, the election of consultative committee representatives did not comply with the requirements for the election of negotiating representatives under the Regulations.  Third, the Employer appeared to be arguing that there were a number of voluntary pre-existing agreements in place which satisfied the requirements of the Regulations, which was not a sustainable argument since some of the site agreements post-dated the valid employee request and not all sites were covered.  Fourth, while the Employer acknowledged that the standard information and consultation provisions should apply, it had failed to elect information and consultation representatives within the meaning of the Regulations or failed to inform and consult with the employees on issues specified in the standard information and consultation provisions.

 

21.     The Employer was copied into the Union’s letter on 23 January 2007.  By letter dated 24 January 2007 from the Case Manager, the Employer was invited to comment on the Union’s letter by midday on 29 January.  However, the CAC received no comment from the Employer, from which the Panel inferred that the Employer elected not to comment.

 

 

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.

 

Negotiated agreements: process and minimum conditions

 

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 (3) to (5);

(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 Union and conceded by the Employer, it is still an issue on which the Panel must make its own reasoned decision. 

 

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, 6 April 2006.

 

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 15 March 2006, as opposed to separate requests being sent to the CAC over a period of time.  The former mode of communicating with the CAC is arguably more consistent with a single request being sent to the CAC under Regulation 7(4), whereas the latter – which did not occur in this case - is arguably more consistent with a number of separate requests being sent to the CAC on different days under Regulation 7(4).  Regulation 7(4) is discussed below. 

 

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 15 March 2006, and were “made”, in the sense of communicated by the CAC to the Employer and to the Union on behalf of the employees, on 6 April 2006.  This necessarily means that they were made within a period of six months.  They were also made by at least 10% of the employees in the undertaking.  The test in Regulation 7(2)(b) is therefore satisfied[5].

 

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, 15 March 2006.

 

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 14 December 2006, as clarified in its letter dated 15 January 2007, appeared to suggest that the Employer was complying with the Regulations by reference to pre-existing agreements, or, in the alternative, negotiated agreements.  At the same time, and wholly inconsistently with both its primary and alternative positions, the Employer confirmed that the standard information and consultation provisions applied.  The Panel will deal in turn with each of these points.

 

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 6 April 2006.  The Employer’s response form in the Box 3 answer indicated when a number of site-by-site agreements on information and consultation were negotiated.  These agreements were apparently those relied upon by the Employer as being pre-existing agreements.  According to the Box 3 answer only one agreement – that covering Basingstoke – was in place prior to 6 April 2006.  It follows that the employees based at other sites making up the Employer’s undertaking, that is, those listed in the Employer’s fax dated 3 March 2006, were not covered by pre-existing agreements within the meaning of the Regulations.  Given that Regulation 2 is not satisfied, there is no need for the Panel to consider the four conditions in Regulation 8(1).

 

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 15 January 2005.  It is possible that what the Employer was seeking to argue was that the negotiations, as described in the Box 3 answer, were by way of fulfilling the Employer’s obligation to initiate discussions on and to set up negotiated agreements as envisaged by the Regulations. 

 

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 Box 3 did not meet these requirements if only for the reason that they did not cover all employees of the undertaking.  That apart, there is no evidence at all that the Employer responded to the employees’ request by ensuring that all employees of the undertaking could elect or appoint negotiating representatives, that any negotiating representatives were elected or appointed, or that any resulting agreement was approved in the prescribed way.

 

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 6 April 2006 and, accordingly, the standard provisions should have applied from 5 October 2006.

 

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 Union, as an employees’ representative, to complain to the CAC under Regulation 19(4) that the Employer failed to hold a ballot of its employees under Regulation 19(1).  The Panel will uphold the Union’s complaint.  Further, pursuant to Regulation 19(5), it will order the Employer to arrange for the holding of a ballot of its employees to elect the relevant number of information and consultation representatives.  It is to be noted that Schedule 2 to the Regulations will apply to these arrangements.

 

Regulation 21

 

64.     The Union alleged that the Employer had shown total disregard for the co-operation duty contained in Regulation 21.  This duty bites at the point of negotiating or implementing a negotiated agreement or implementing the standard information and consultation provisions.  The duty is placed on the “parties”, which are defined by Regulation 2 as “the employer and the negotiating representatives or the information and consultation representatives, as the case may be”.  The co-operation duty will arise in this case only when the parties as defined come to implement the standard provisions.  That point has not yet been reached. 

 

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. 

 

 

PANEL:

 

Professor Roy Lewis, Panel Chairman

Ms Lesley Mercer

Mr John Rugman

 

16 February 2007

 



[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 15 January 2007.

 

[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 Box 3 answer in the Employer’s response form.

[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 1 December 2005 to 15 March 2006, and at least 10% of employees supported the request, even if the 7 undated signatures are disregarded.