Be sure of your pre-existing agreements

Stewart v Moray Council (IC/3/2005) is the first reported case from the Central Arbitration Committee (CAC) on the Information and Consultation of Employees Regulations 2004. Its important subject matter is the test of what is required for a ‘pre-existing agreement’ under the regulations.
A pre-existing agreement is a lightly regulated voluntary agreement (or set of agreements) between a company and the workforce about information and consultation.

The information and consultation (I&C) regulations provide that if 10% of employees in an undertaking request negotiations for an I&C agreement, an employer must normally consent to that request. However, if the employer already has a pre-existing agreement in place and the request for negotiations has been made by less than 40% of the workforce, the employer may hold a ballot of the workforce as a whole to seek endorsement of the request.

If, on a ballot, at least 40% of the employees employed in the undertaking and the majority of those who vote in the ballot vote in favour of endorsing the request, the employer must begin to negotiate. But if the mandate is not achieved, the pre-existing agreement stays, and no further employee request for negotiations may take place for three years from the date of the original request.

So having a pre-existing agreement may seem a very attractive option for employers – especially when considering all that is required. Regulation 8(1) states that valid pre-existing agreements should be in writing, cover all the employees of the undertaking and, finally, set out ‘how the employer is to give information to the employees or their representatives and seek their views on such information’.

In the Moray Council case, the council received a request to negotiate an I&C agreement from between 10% and 40% of its employees. The council took the view that various collective agreements in place together amounted to a pre-existing agreement, and duly decided to hold a ballot. Stewart complained to the CAC that this was not the case.

The CAC considered the four conditions in regulation 8 and confirmed three were satisfied. The agreements were in writing, they covered all employees (union members and non-members alike, because of the wording of the agreements), and had been approved by the employees. They were also endorsed by trade union representatives who had the right to represent all employees in the undertaking. But where the pre-existing agreement fell down was on its sufficiency with regard to setting out how information would be given and views sought.

The agreement stated that it was ‘a forum for discussion and/or consultation on a range of matters not subject to national bargaining’. However, the CAC thought that was an insufficiently detailed description of the way the council should inform and consult employees. So the council was not entitled to hold a ballot, and had to start negotiations right away.

The moral is, if you think your business has a pre-existing agreement in place to defend a request to negotiate for an I&C agreement under the regulations, take advice to see that it is valid and, if not, take steps to ensure it complies with regulation 8.

Information and consultation regulations

  • Under the I&C regulations, a request to negotiate must be made by at least 10% of the workforce.
  • If 40% or more make the request, the employer must negotiate right away.
  • If only 10% to 40% make the request, the employer may insist on a ballot to endorse the request if it has a valid pre-existing agreement in place.
  • This pre-existing agreement must be in writing, cover all employees and have been approved by the employees, and set out specifically how information will be given and views sought.
  • If any one of these conditions is not met, the pre-existing agreement is invalid, the ballot cannot take place, and the employer must start negotiations under the I&C regulations straight away.

John McMullen is Partner and head of employment, Watson Burton

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