The code seeks to provide a plain explanation of the legislation. The thrust of the code is about effective compliance with the legislation.
The code sets out how the workforce threshold is calculated. It is based on a calculation of an average of the number of employees employed in the organisation over a two year period.
An employee or representative is entitled to request data on the number of employees in the organisation. Employees may need this information to see whether the organisation comes within the scope of the legislation and, therefore, whether they can make a request for information and consultation arrangements. Where a request for the number of employees is made to the employer, the employer has four weeks from the date of receipt to provide the information.
The code then details the process for establishing information and consultation arrangements. It sets out that a request must be made by at least 10% of the employees, subject to a minimum of 15 and a maximum of 100 employees.
An employer can, at their own initiative, take steps to put in place information and consultation arrangements. Obviously an arrangement put in place on foot of a freely entered into engagement process has positive benefits in terms of industrial relations generally including effectiveness, trust building and durability.
The alternative is that, where there is a request to put in place information and consultation arrangements by at least 10% of the employees, the employer is obliged to begin negotiations with a view to establishing arrangements. The negotiations may result in two possible outcomes:
- a negotiated agreement
- use of the standard rules.
From an employer’s perspective, if they don’t have information and consultation arrangements in place they could conceivably wait for a valid request from 10% of their workforce to negotiate new arrangements.
The options under the Act for putting in place arrangements are the use of:
- pre-existing agreements
- negotiated agreements
- the standard rules
Some organisations already have in place information and consultation arrangements. They may be viewed as effective and suitable methods for their needs in relation to their business activities. The Act provides for an opportunity to use such arrangements provided that the pre-existing agreements are in place by a certain date. It should be noted that, after 23 March 2008, it will not be possible to put a pre-existing agreement in place.
Negotiated agreements are information and consultation agreements drawn up in negotiations between an employer and employees and/or their representatives. Employees who want such an agreement must make a formal request under the legislation. The employer and employees can design an arrangement to suit their own particular requirement. Whatever agreement is put in place should be workable, effective and enjoy the trust of the employer and employees concerned.
Negotiated agreements must according to the code:
- identify the issues on which the organisation will inform and consult
- relate to all employees
- set out the method and time frame by which information and consultation is to be provided including whether it is to be provided directly to employees or indirectly to employee representatives
- set out the duration of the agreement and any re- negotiation procedure
- be in writing and dated
- be signed by the employer
- be available for inspection as agreed between the employer and employees
- set out the procedure for dealing with confidential information
The standard rules provision is effectively a fallback position. They only become relevant in the circumstances as follows:
- where there is an agreement by both the employer and employees to adopt them
- where the employer fails to initiate negotiations within three months of receiving a valid employee request
- where negotiations have failed to lead to an agreement within six months from the start of negotiations
Unlike negotiated agreements and pre-existing agreements which reflect the fact that the employer and employees are free to negotiate their own terms and conditions in relation to information and consultation arrangements, the arrangements based on the standard rules are set out in the legislation.
The key aspect of this is the establishment of the information and consultation forum. The forum must be made up of at least three but not more than 30 members. The legislation details the following requirements:
- the structure of the forum
- the rules of procedure
- competence and expenses
- practical arrangements for information and consultation set out in the standard rules
The arrangement must provide for employee representatives if it is not possible for an employer to inform and consult directly with employees.
It is only in the standard rules provision that the requirements regarding the election of employee representatives are detailed and they must be elected in accordance with the principal of proportional representation.