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THE INFORMATION AND

CONSULTATION OF

EMPLOYEES REGULATIONS

2004 (THE ICE REGULATIONS)

Guidance for Unite Amicus Section Officers andWorkplace Representatives

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The Informati

onan

dConsultationof

Emp

loyeesRe

gulati

ons

2004(the ICERegulations)

Guidancef

orUniteAmicusSecti

onOfficersan

dWorkplaceRepresentatives

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The InformationandConsultationofEmployees

Regulations2004(the ICERegulations)

First print ing June 2007

Pub lished by Unite Amicussection

35 King Street, Covent Garden,London WC2E 8JG

Th is gu ide book is downloadable in PDF format fromwww.un itetheunion .org .uk

Hayes CourtWest Common RoadBromley BR2 7AU

Tel: 020 8462 7755Fax: 020 8315 8234

33-37 Moreland StLondonEC1V 3HA

Tel: 020 7505 3000Fax: 020 7505 3030

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ICONTENTS:Foreword Unite AmicusSection IndustrialStrategy 4

The lega l background 5

Information and Consultat ion Strategy 8

Next Steps: Taking the Initiative on Information and 12

Consultat ion

Guidance on What to Include in any ICR Agreement 13

Recruitment,Campaigns and Organising 17

Education and Training 18

Glossary of Terms and Other Matters 19

Appendix 1 ACAS Guidance 22

Appendix 2 DTI Guidance 23

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Unite AmicusSection IndustrialStrategy in re lation to Information and Consultation

Leg islat ive changes that took effect on 6 April 2005 establish the right to information and

consulta tion on a much w ider range of issues and much earlier than previously and assuch have

prompted some employers to set up new arrangements for informing and consulting . TheRegulat ions have had two years bed in. The impact has been limited, but Amicus took a lead and

we have had the opportun ity to take account of experience.

Th is gu ide is part of a pack prepared by Un ite AmicusSection based on our experience of the

Regulat ions and should be used to make the most of th is ne w leg islat ion as well as protecting the

un ion against itsshortcom ings.

The right to the information and consulta tion which can be w ith a view to reaching

agreement - is not automatic. It has to be requested and there are ru les about how and when a

request can be made .

Neverthe less, about 75% of emp loyees in the UK cou ld be covered from 6 April 2007 and there

w ill be more from April 2008.

The Unite AmicusSection industrialstrategy for information and consulta tion , aims to :

protect and extend collective bargaining influence in the workp lace while benefiting from the

new righ ts;

make the most of opportun ities for recru itment and organ isat ion

resist and cha llenge the deficiencies in the UK law, and

provide the educat ion and support that Unite AmicusSection representat ives w ill require to dea l

w ith a range of complex issuesconcerning the business and economicinformation .

Th is gu ide intends to meet demands for something relat ive ly brief and digestible. Links to more

detailed guidance on specific po ints are included to follow up where necessary. In particular the

un ion has the expertise to give guidance at every stage.

Trade union recognition remains the absolute priority. However, that does not mean that information

and consulta tion arrangementscannot and should not be used as a way forward in companies

where trade union recognition has been refused or is not a viab le option in the short term.

Unite AmicusSection Advice, Assistance and Approval

No I&C and recog nition agreements entered in to by Unite AmicusSection should be signed until

they have been checked for legal and policy compliance. Officers are advised to commence th is

process as early as possible where negotiat ions are contemp lated or have commenced .

Un ite AmicusSection can assist in drafting appropriate agreements, or where a draft agreement is

already proposed it should be directed through Ann Marsha ll based at Hayes Court

(Ann .Marsha ll@am icustheunion .org ). These can be matched to the mode l agreements

Derek Simpson,Joint GeneralSecretary

IFOREWORD FROM THE GENERALSECRETARY

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Th is gu ide is no t intended as a detailed reference source for the law in th is area, bu t is more by

way of a gu ide to the practicalissues and the strategic approach to be adopted by Un ite Amicus

Section officers and representatives. Officersshould have access to appropriate training and other

pu blicat ions to help w ith an understanding of the legal framework.

The Information and Consultat ion of EmployeesRegulations2004(the ICERegu lations)

Statutory Instrument 2004 No. 3426 can be downloaded at http://www.opsi.gov.uk/sta t.htm and

the directive is at http://ec.europa.eu/emp loyment_social/labour_law/documentation_en.htm

Application

The Regulat ions apply in three stages

from 6 April 2005 to undertakings* w ith at least 150 emp loyees*

from 6 April 2007 to those w ith at least 100; and

from 6 April 2008 for those w ith at least 50

Wordsin heavy type and ita lics are explained in the glossary at the end.

Agreements have to cover all employees, but the Emp loyment Appeal Tribunal have said, in th is

context, that an agreement w ith a union can cover non-union members to o.

The approach the union adopts depends, among other things, on two possible scenarios:

A. where there is no I&C agreement and

B. where there is an existing agreement

A. NO I&C AGREEMENT

The legally enforceable right to I&C does not exist until after the procedure is invoked. The

existence of a voluntary agreement is no t legally bind ing or enforceable .

1.First comes the valid employee request* from 10% of the workforce of an

undertaking* (un less, in the alternative , the employer formally initiates the statutory process).

2. Then the emp loyer must negotiate the I&C agreement, w ith in a time frame.

3. And if an agreement is reached, it islegally bind ing and in place for three years.

4. But if there is no agreement or the emp loyer does noth ing the standard form Standard

Information and Consultation Procedure (SICP)* applies for three years th is too is

enforceable.

ITHELEGALBACKGROUND

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B. A PRE-EXISTING AGREEMENT* IN PLACE

REMEMBER EVEN IF THE EMPLOYER TRYS TO TELL THE UNION THERE IS AN AGREEMENT IN PLACE

IT M AY NOT BE SO there is a procedure to test th is in a particular situation by an applicat ion to

the Central Arbitration Committee (CAC).

A pre-existing agreement can be in the form of a recognition agreement covering information and

consulta tion , or more than one covering the who le workforce , even those not in a un ion . Th is w ill

not be enforceable in all probab ili ty. There is a case on this po int on the EAT website invo lving

Moray Council which can be viewed at

http://www .emp loymentappeals.gov.uk/Public/Upload/06_0143FHDSLA.doc

Assum ing the employer is right and there is a va lid and enforceable agreement, then

1. fo llow ing a valid employee request*

2. the employer can hold a ba llot to see if the workforce endorses that request

3.if 40% of the employees and a ma jority of those who vote support the request, proceed w ith 2,

3 and 4 as when there is no agreement (see under A above), or

4.if the ballot does not endorse the request w ith 40% and a majority of the voters, then the

existing I&C stays for three years.

Negotiating an agreement

Once a valid request has been received by the emp loyer, or after the emp loyer initiates the

procedure , negotiat ions must take place between the emp loyer and representat ives elected or

appo inted by the w orkforce.

It may be a cha llenge to unions, that there are no pre-defined ru les on how to choose negotiat ing

representatives, but employers must ensure that all employeescan take part in the appointment or

election and that all employees are represented in subsequent negotiat ions. Th is enables

employers, who chose to do so, to act in a way to try to underm ine or exclude the union .

Negotiat ions must start w ith in 3 months and can last for up to 6 months, though this period is

extendable by agreement between the emp loyer and a majority of the negotiat ing representatives.

Default requirements:

Where no agreement can be reached w ith in six months, or an employer fails to initiate

negot iat ions in the light of a valid request, then and on ly then w ill the Standard Information and

Consulta tion Provisions(SICPs) apply, effectively by default. These require that the employer must

inform/consult elected employee representatives(one for every 50 emp loyees or part thereof, but

with a minimum of two) on:

business developments(information only)

employment trends(information and consulta tion ); and

substantialchanges in contractual re lat ions or work organisat ion , includ ing redundancies and

business transfers(information and consulta tion w ith a view to reaching agreement )

There is no point reaching an agreement less beneficial than the SICPs. If th issituat ion arises

contact the Unite AmicusSection Team for advice.

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Enforcement and sanctions

Enforcement of agreements reached under the statutory procedure , or standard information and

consulta tion provisions where they apply, w ill be via complaints to the Central Arbitration

Committee (whose ro le is exp lained at http://www.cac.gov.uk/I&C/I&C .htm) and,if necessary, the

Employment Appeal Tribunal. The CAC haslimited powers to make orders and can impose a

financial pena lty up to 75 ,000. Th is is recoverable by the Secretary of State as a civil debt.

Rights and protections for Representatives

There is an entitlement to reasonab le pa id time off to perform the ir functions and

Protection for employees - from detriment for exercising entitlements under the Regulat ions and

a right to claim unfair dismissal th is protection covers th ose organising signatures for the

tr igger request, for example .

Confidentiality

Th isis one of the more cha llenging issues. It can be problematic and divisive for the union if the

representatives are told th ings they cannot share. Employers who have a negot iated agreement, or

who are sub ject to the standard provisions may, on confidentiality grounds:

restrict any information or document t hey provide to I&C representatives, so that it may not be

passed on to anyone else. They may do th is where it isin the leg itimate interest of the

undertaking .

w ithhold information or documents altogether where disclosing them would seriously harm the

fu nction ing of the undertak ing , or be prejud icial to it.

W ithholding information is on ly permissible from I&C Representatives on Confidentiality Grounds,

where, for example,information wasso sensitive that,if it wasleaked to third parties, whether

inadvertently or deliberately,it cou ld cause serious harm or prejud ice to the undertaking .

The fact that information may be price-sensitive or confidential wou ld not necessarily justify

w ithholding information because it can be provided on a restricted confidential basis.

A confidentiality requirement cou ld last for any length of time, although it should not be longer

than is necessary in the legitimate interest of the undertaking .For example,it shou ld cease if the

information has been made public. Thisshou ld be spe lt out in the agreement.

The Regulat ions provide that it w ill be a breach of duty for an ind ividual to disclose information

that has had an obliga tion of confidentiality placed upon it by the emp loyer and is actionable

accord ing ly.Potentially a breach of confidentiality cou ld result not only in disciplinary action ,

includ ing dismissal, but also in civil , and possibly crimina l proceedings, if it amounts to a breach of

stock market/securities trading rules. The union hascome across agreements providing for

dismissal in the event of a representative disclosing confidential information . Th isshould obviouslybe avoided. Restrictions on confidential information do not include disclosures under " whistle-

blow ing leg islat ion " which are allowed, under the Pub licInformation Disclosure Act. But it is

advisab le to obtain legal advice before relying on whistle-b low ing provisions. They are not as

good a shield as they are often perceived to be.

In the event of a d ispute over information restricted on confidentiality grounds, an employee can

cha llenge whether or not something is truly confidential by presen ting a complaint to the CAC . It

is essential to have this right written in to any negot iated agreement, as otherw ise the employer

cou ld seek to deny the right to go to the CA C w here this is no t stated in a negot iated agreement.

The Regulat ions do not provide for a representative to obtain advice from a union officer beforego ing to the CA C . If a representative does discusssuch a matter w ith an officer, both must take

extreme care not to reveal the information in such a way which migh t jeopardise the reps rights.

Better to have the opportun ity written into the agreement.

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IINFORMATION AND CONSULTATION INDUSTRIALSTRATEGY

A host of d ifferent representative structures already exist or have been set up in a variety of

contexts(un ion ised , part-union ised or non-union ised workplaces). Some degree of standardisat ion

is desirable, but there is no sing le model for all because no two undertak ings are the same,

although in un ion ised companies the information and consulta tion forum often coexists w ith aseparate negotiat ing process.

Trade Union Recognition remains th e central aim of the union for organising in the workp lace . To

th is end Unite AmicusSection prefers for all new recognition agreements to cover the

requirements of the information and consulta tion Regulat ions wherever possible to pre-empt

alternative I&C arrangements be ing introduced which might undermine the union s ro le. Th is

should have attractions to many employers, as it has the advantage of greater simp licity and

efficiency in practice.

It also provides great opportunities for increased union invo lvement and recru itment.

Draft recognition agreementsinclud ing these " Information and Consulta tion compatible clauses "

are availab le from the Un ite AmicusSection Team, although the inclusion of a pre-existing

agreement clause is not always a block to alternative I&C structures.(Th isshould not be po inted

out to emp loyer representatives).

It is also recognised that w ith more and more companies approaching representatives and officers

w ith draft agreements, the union needs a " w ish list " of its own, which workplace representatives

and officerscan refer to in negotiat ions. For this, please refer to the section below entitled

Guidance on What to Include in any I&C Agreement.

Union Recognition,Collective Bargaining and Information and Consultat ion

Any approach regarding Information and Consulta tion righ tsshould be carefully considered so as

to ensure that collective bargaining righ ts are not be underm ined by this leg islat ion . To help

facili tate this it is essential to :

1. Check what existing union recognition arrangements exist for the company

2.Prov ide full details of recognition righ ts and arrangements together w ith any draft agreement

when seeking advice or approval re any new I&C agreement

3. Consider any proposals from the employer from the point of view of whether the I&C

arrangements proposed might:

a. Undermine existing recognition provisions because the I&C group would overlap w ith what

had previously been collective bargaining areas(th is includescollective consulta tion on

TUPE and redundancies as well as re pay and benefits)

b. Undermine union representation arrangements, e .g. by guaranteeing non-union I&C

representative placesin bargaining units where the union is recognised

c. Undermine union information and influence by providing for company representatives to

meet w ith I&C reps more frequently than they meet w ith union negotiat ing bodies

d. Harm the trust and communicat ion between union workplace representatives or officers,

and the members they represen t, but giving the company too much discretion to decide

what information given under I&C provisions is confidential.

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Constituencies and structures for consultat ion

Workplace representativesshould be assisted in mapping membership w ith in an undertaking so

that the un ion can identify where membership isconcentrated, and bear th is in mind in

discussions to set constituency boundaries for information and consulta tion representatives to beselected from.

Try to ant icipate how the cho ice of constituency boundary might enhance, or undermine , un ion

strength and stand ing .

Avo id any definition of constituencies as non-union reps as th is w ill entrench and institu tionalise

non-union structures.

Groups and multi-site structures

In mu lti-site companies the union should seek group leve lstructures, supplemented by p lan t leve l

structures.

Plan t leve lshould be used both for p lant only issues, and for more deta iled plan t leve l discussions

on group issues. The union should str ive to obtain un ion negotiat ing righ ts across these same

structures wherever possible.

Where group leve lstructures are being established they should include representation from every

site in the undertaking , and meetingsshould be called as and when necessary to deal w ith

emerging issues but also a minimum of at least tw ice per year.

Relationship of I&Cstructures to European WorksCouncils(EWCs)

Most companiescovered by the EW C D irective w ill have been in the first wave of companies that

w ill be covered by the new leg islat ion . G iven the superior HR resources of such companies it is also

high ly like ly that some of these companies w ill approach their workforces to put I&C structures in

place. A lternative ly they may a lso be the best targets for Unite AmicusSection members to

request the establishment of I&C mechanisms but do not forget that to have the b ind ing

en titlement to the information and the opportunity of consulta tion , there must be a valid request*

by 10% of the workforce in the undertaking , or formal initiat ion of the process by the employer.

Whether the company approachesits workforce or Unite AmicusSection makes the initial

approach, officialsshould str ive to make sure that group and p lant leve lstructures are clearly

linked and connected to existing EWCs.

A lthough the information and consulta tion procedures and definitions are weaker for EWCs than

those contained in the ICE Regulat ions, Un ite AmicusSection members w ill ga in more if their I&C

reps at plant, na tional and European leve l are as far as possible the same people.Furthermore ,

they w ill also ga in more if there is at least a consistency of representation and flow of information

through and across the variousleve ls.

Working Alongside Non-Union Representatives

One of the main cha llenges of the Regulat ions is that information and consulta tion structures w ill

cover the whole workforce, and circumstances w ill undoubtedly arise where the un ion w ill have tocope w ith a m ixture of union and non-union ised groups(or "mixed constituencies " ).

The requirements for all employees to be covered means that, except where Unite AmicusSection

has recognition for a whole work force, un ion representatives may have to sit on I&C bodies

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alongside non-union representatives. Th isshould be seen as an opportunity to promote the union

by sho w ing that un ion representatives are better trained, better organised , and more effective ,

than non-union representatives. Non-union representativesshould be seen as potential recru its to

the union and not as enemies.

The employer cannot rule out union members asI&C representatives and the workforce can be

encouraged to appreciate that Unite AmicusSection representatives have the support and

responsibili ty to ensure the spirit of the Regulat ions and the Directive are properly ma intained.

Where there are union and non-union I&C representatives, a frequent opt ion has been to introduce

an over-arching information and consulta tion committee, incorporat ing representatives of both

un ion and non-union groups, w ith trade un ion representativescon tinu ing to negot iate w ith

management in a separate body. Information and consultat ion can therefore be kept

separate from negotiation.

Un ite AmicusSection representativesshould always push for meet ings of union negotiat ing bodies

to take place immediately before, or failing that, after, any meeting of a separate I&C body. Th is is

intended both to ensure that the un ion representatives are at least as well informed as th eir non-

un ion colleagues, and also to ensure that negotiat ions and decision making w ith in the union

sphere is dealt w ith contemporaneously w ith any I&C consulta tion .

In addition ,if any union representatives are not a lready members of any I&C body, the union

should push for any I&C agreement t o provide for them to attend I&C meetings at least as

observers, and to receive the same training as other I&C forum members.

Furthermore,clauses are often written into agreements for the new consulta tive body affirming "for

the avoidance of doubt " , that its rem it does not extend to negotiat ions,i.e. " Where pay, terms and

conditions of employment are negotiated on a collective basis w ith trade union representatives, then

these arrangements w ill con tinue" . Asstated above, you should ensure that statutory consulta tion

righ ts are still reserved to the union . In addition , if the un ion had previously had rights to negotiate

on other issues,such as health and safety or training; the union retains to right to negotiate in these

areas even if the I&C body isinformed and consulted about them.

Frequency of Meetings

There is no set frequency of Information and Consulta tion committees and the basic approach

should be to incorporate wording that:

ob liges the employer to call meet ings as and when necessary to comply w ith the spirit and intent

of the leg islat ion , and

sets a minimum number of standard meetings(and the ACAS gu ide recommends once a month)

Selection of I&C representatives

The facts that information and consulta tion must cover the w hole workforce, along w ith the power

in the hands of the employers, also br ingscha llenges when determining ho w representatives w ill

ga in sea ts on the forum.

Often w ith in a company there are obvious group ings that form " naturalconstituencies " - on the

basis of locat ion , function or job role for example (much the same as bargaining units for CAC

recognition applicat ions). Somet imes a mix of approaches is adopted and it w ill be up to un ion

officers and workplace representat ives to negotiate the best option for them. Where the Standard

Information and Consulta tion Prov isions apply the emp loyer is responsible for organ ising the ballot ,they must draw up proposals for the ballot and consult representatives of the emp loyees about

them (e .g. the negotiat ing representatives or trade union representat ives).

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The ballot must be fair. There is a 21 day time limit to complain to the CAC that the

ballot arrangements are defective. The ballot ing provisions are in Schedu le 2 to the

Regulat ions.

Independent trade un ions are best placed to represent the whole workforce and some employers

w ill go along w ith this, but others w ill try and p lace restrictions on who can stand for election to

the information and consulta tion committee .

Un ite AmicusSection advocates that in bargaining units where the union is recognised , any

negotiated I&C agreement should provide for the union to select the representat ive for that

bargaining unit. If the company insists on specific representation of non-union members, the

un ion should opt for an e lection across the bargaining unit in which both union and non-union

members vote. The union should also seek provision that if the union workplace representat ive

under any union recognition agreement is not elected as th e I&C representat ive for the bargaining

un it, they should nevertheless be guaranteed a place on the I&C forum as an observer. Th is is

preferable to having a guaranteed un ion representat ive and a guaranteed non-un ion

representative from the same constituency. Th islatter arrangement sho uld be strongly resisted as

it dilutes the union sinfluence w ith in the bargaining unit, and creates an incen tive for the person

elected by non-union members to remain outside of the union .

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Officers w ill need to take a closer look at the companies they represent and decide what approach

to take w ith regard to information and consulta tion; asking

Is the union recognised for a ll employees?

KIf so should the un ion seek an agreement to cover the I&C righ ts, or have a separateagreement which would be legally enforceable? W ill it enhance the union scurrent

arrangements? Are the emp loyees like ly to support it?

KIf not wou ld the union be like ly to succeed in getting union reps elected in thebargaining units where it is not yet recognised , or might the introduction of I&C

structures undermine the union by providing a platform for non-un ion representatives?

Do the Regulat ionscover the company in the light of itssize?

KIf not, is it worth trying to approa

ch the employer for an agreement by

consen t in any

event? (Such an agreement would not be enforceable).

The strategy on Information and Consultation should be carefully paced. Officersshould

ensure that union representatives at any company where the union isseeking to promote I&C are

particularly we llinformed, we llsupported and have an active and effective engagement w ith those

they represent. Officers must seek to make absolutely sure that the I&C representatives are as far as

possible the same people as the Unite AmicusSection workplace representatives.

An employee or an emp loyees' representative may request data from the employer for the purpose

of determining the number of peop le employed by that undertak ing in the United Kingdom.

Amicus has had a good result from a

complaint to the CAC about Ma

cM illan

Press fa ilures to

respond properly to such a request they are now facing a substant ial fine. The decision can be

found on the CAC website .It may be that officers are already being asked by companies to start

negotiat ions on information and consultation . If so, please seek advice from the Unite Amicus

Section I&C Team assoon as possible.

Where officers are not completely sat isfied w ith the agreements that are already in place and th ink

the union cou ld get negot iate a better agreement, the Information and Consulta tion Regulat ions

might offer the opportunity the union has been looking for to renegot iate.

Where employersclaim there is a pre-existing Information and Consulta tion Agreement that falls

short of theS

tandardP

rov isions, they may not be right and there are provisions for employees toover turn it, if it is va lid.If an officer thinks th is might be appropriate, advice and support on this

can be obtained from the Un ite AmicusSection I&C Team.

Officers need to be on their guard against those employers who may be encouraging employees and

Trade Union representatives to sign " pre-existing " or voluntary agreements. They may well be

unenforceable. The biggest caveat comes with those companies that are trying to use the Information

and Consultation Regulat ions to undermine the trade union . Thisis often not obvious on a casua l

reading of draft agreements,so please check any proposalsin detail, bearing in mind this gu idance.

Remember the requirement that the whole workforce is included means that the union and its

memberscannot be ex

cluded . Guidan

ce fo llows on what to in

clude in an agreement.

In summary,

advice from AC ASstates that the core of an information and consulta tion agreement m ight take

the form of a statement of principles and intentions w ith a section then set ting out the

structures and sub jects as ou tlined in the Regulat ions. Un ite AmicusSection advises that the

Standard Information and Consulta tion Prov isions, asset out in the Regulat ions,should be

included as an absolute minimum.

INEXTSTEPS: TAKING THEINITIATIVE ONINFORMATION AND CONSULTATION

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Un ite AmicusSection requires all new agreements to be processed and legally checked. They

should be d irected through Ann Marsha ll , based at Hayes Court before they are signed.

On a more proactive note , it is recognised that w ith more and more compan ies approachingstewards and officers w ith draft agreements, the union needs a " w ish list " of its own, which

reps and officerscan refer to in negotiat ions.

Clauses for inclusion in the draft model recognition agreement

From the outset Unite AmicusSection acknow ledges that new recognition agreementsshould

also cover the requirements of the Information and Consulta tion Regulat ions wherever possible.

The most important reason for this is to prevent emp loyers from using Information and

Consulta tion as a mechanism to create alternative Information and Consulta tion systems that

may undermine the Trade Union .

At the same time the union needs to be sure that any such agreement wou ld not be open to

cha llenge, if the agreement did not cover the w hole workforce . In such circumstances it may be

inevitable that " parallelsystems " invo lving "mixed constituencies " exist.

Draft recognition agreements includ ing these " Information and Consulta tion compatible clauses

are availab le from the Ann Marsha ll at Hayes Court.

What should be in a Unite AmicusSection I&C Agreement?

1. Objectives and Reference to EU and UK Legislation:

A well worded statement of principles and objectives is a good thing to start w ith .Reference

should be made t o the European Directive (EU Directive 2002/14/EC ) as well as the UK

Information and Consulta tion Regulat ions(Information and Consulta tion of Employees

Regulat ions 2004). Th is w ill give all future representatives and participants a clear reference to

the European D irective and UK Regulat ions upon which their righ ts are based .

2.Protection of I&CReps:

Reference to fu ll protection from unfair treatment by the employer - i.e . discrimina ting or

dismissing representat ives, or election candidates, for carrying out their duties under the

agreement. Exp licit in the text should be reference to Article 7 of the EU D irective and UKRegulat ions 27-29, and 30-34.

These referencesshould also specify reasonable time off to carry out their duties particularly to

canvas the views of those they represent and also the ability to report back to constituents(UK

Regulat ions 27-29).

The agreement should state that any extra hours worked in con junction w ith I&C duties w ill be

pa id hours.

3.Facilities:

Reference to fu ll facili ties be ing availab le includ ing telephones, faxes, email ,internet, meet ing

rooms, photocop iers, etc, must be made in the agreement

IGUIDANCE ON WHATTO INCLUDEIN ANY ICRAGREEMENT

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4. Definitions of Information and Consultation:

The definitions of Information and Consulta tion should at least be asstrong as those in the

European Directive and the fallback provisions of the UK Regulat ionsi.e.(see regulat ion 20):

Information means the transmission of data by the management to employees representatives,in

order to enable them to acquaint themselves with thesubject matter and to examine it. (European

Directive Article 2) The exact wording of UK Regulat ion 20 is given overleaf:

Standard information and consultation provisions

(1) Where the standard information and consulta tion provisions apply pursuant to regulat ion 18,

the employer must provide the information and consulta tion representatives w ith information on -

(a) the recent and probab le development of the undertak ing's activities and economic

situation;

(b) the situation ,structure and probable development of employment w ith in the

undertaking and on any anticipatory measures envisaged,in particular, where there is a

threat to emp loyment w ith in the undertaking; and

(c)sub ject to p aragraph (5), decisionslike ly to lead to substantialchanges in work

organisat ion or in contractual re lat ions, includ ing those referred to in -

(i)sections 188 to 192 of the Trade Un ion and Labour Relat ions(Consolida tion )

Act 1992; and

(ii) regulat ions 10 to 12 of the Transfer of Undertak ings(Protection of

Employment)Regulat ions 1981.

(2) The information referred to in paragraph (1) must be given at such time , in such fashion and

w ith such content as are appropriate to enable, in particular, th e information and consulta tion

representatives to conduct an adequate study and, where necessary, to prepare for consulta tion .

(3) The employer must consult the information and consulta tion representatives on the matters

referred to in paragraph (1)(b) and (c).

(4) The employer must ensure that the consulta tion referred to in paragraph (3)isconducted -

(a)in such a way as to ensure that the t iming , method and content of the consulta tion are

appropriate;

(b) on the basis of the information supplied by the emp loyer to the information and

consulta tion representatives and of any op inion which those representat ives express to

the employer;

(c) in such a way as to enable the information and consulta tion representatives to meet the

employer at the relevant leve l of management depending on the sub ject under

discussion and to obtain a reasoned response from the emp loyer to any such op inion;

and

(d)in re lat ion to matters fa lling w ith in paragraph (1)(c), w ith a view to reaching agreement

on decisions w ith in the scope of the employer's powers.

Theseclauses are extremelyclear about the definitions and process of I&C and noagreementshould ever be accepted orsigned that does not meet these minimum

provisions.The duty to provide information in advance, for example, toconsult with a

view to agreement, over matters which arelikely to lead tosubstantialchanges to the

contract of employment orchanges to the organisation of workinsome way may arise

frequentlyinsomecases and beinevitable even whenitisinfrequent.

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5.Issues for Information and Consultat ion:

Include the minimum provisionsi.e. those given above, but also seek to include other matterssuch as:

health and safety

educat ion

tra ining

equal treatment

pensions

6.IssuesExcluded from I&C:

It must be stated explicitly that the I&C agreement w ill in no way cover or affect areas dealt w ith

in collective agreements, and that the existing collective bargaining machinery w ill remain in place.

It must be stated that the agreement does not remove the statutory obliga tionscovered by TUPE

and Collective Redundancies leg islat ions.It should also be stated that remuneration of employees

and matters re lat ing to ind ividuals are not be covered by the agreement .

7.Composition:

The text should state how the body w ill be made up how many emp loyee representat ives andhow many management representat ives.

Where trade un ions are recognised it is desirable to have sea ts reserved for trade unions to

nominate representat ives w ithout a ballot .

If there is no recognition but membership then the union should still try to insist on the union

nomina ting the representatives, however, if th is is not possible then the union should insist on a

ba llot accep ting that the constituencies may be departments or areas where no trade union

recog nition exists e .g.sales, administration . The union should then campa ign hard to w in the

seats and organise these areas.

Under no circumstancesshould any position be defined as a non-union position as th is w ill

institu tion alise and entrench non-union representatives.

8. Deputies:

There should be provisions for the nom ina tion or e lection of substitutes to fill the places of

representatives that cant attend.

9.Scope:

Reference should be made to the fact that the Forum/Councilshould cover all employees w ith in

the company, and also to what w ill happen in the case of mergers and acqu isitions of other

undertakings.

10. Officers:

Forum Chair it should be written into the agreement that there is a designated cha ir of the

meet ing and if possible that thisis the employee side coordinator.If th is is not possible then a

shared cha ir is preferab le to one that is permanently under employer control.

ForumSecretary it should be written into the agreement that there is a forum secretary whose

duty it is to take minutes,circulate the agenda, book rooms etc.

EmployeeRepresentatives Coordinatorit should be written into the agreement that the

employees w ill elect one of their number to cha ir the employee side meetings and who w ill also

agree the agenda and minutes prior to circulat ion .

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11. Agenda:

The timing of the draw ing up and circulat ion of the agenda e.g. items in hands of secretary 7

days before the meet ing and circulated 5 days prior to the meeting . A lso that outstanding issues

can be raised under Any Other Business.

12. Meetings:

The text should be drawn up in such a manner that emphasis is on the company to call meetings

as and when necessary to inform and consult on emerg ing issues, bu t it is good practice tospecify a minimum number of regular meetings ACAS recommends once a month but provided

the as and when necessary wording isin place then less regu lar meetings might be acceptab le.

The text should allow the emp loyee side to meet a lone (w ithout management) before , during and

after the meetings w ith management, in order that they have sufficient opportunity to d iscuss and

plan their responses.It is good practice to explicitly state that there w ill be pre- and post- meetings

w ithout management. There should be a clause allow ing the Forum Chair or Employee-side

Coordinator to call extraordinary meetings when deemed necessary.

13.Experts:

A clause should be included allow ing Full Time Trade U nion Officers to attend the meet ings if the

employee-side requestsit.Ideally, the clause should also allow the employee-side to call for

financial experts to attend and offer advice if deemed necessary.

14.Confidentiality:

A confidentiality clause is almost a necessity, even if the union would not want to have one in an

ideal world (see also entry in the Legal Overview (page 7) and G lossary).

The clause should state that the where companies withhold information they w ill notify employee

representatives that thisis the case, but should also include wording allowing appeal to the CAC totest whether the confidentiality request or the w ithholding is valid.Such clausesshould contain

wording ind icat ing that the confidentiality requirements w ill not be consistently or unreasonably used .

It would certainly he lp to have a provision to enable representatives to consult w ith others, perhaps

limited to an officer of the un ion , or legal advisor, to consider, at least the issue of whether the

information isconfidential for the purposes of the Regulat ions or the Directive .

N.B.StockExchange rules are not alegitimate reason to withholdinformation from

workforce representatives.

15.Training:

Prov isionsshould be made for paid time off for the training of I&C representat ives(ideally 1-2

weeks per year) and also that trade union facili ties and courses w ill be used .

16.Terminat ion and renegotiation procedures:

It is good practice to include a clause sta ting the length of the agreement , that either party may

term inate the agreement w ith 6 months no tice, and that no changes to clauses or paragraphs w ill

be made w ithout both part ies agreeing .

17.Enforcement:

It is extremely important that the agreement explicitly statesit is enforceable via the procedure

detailed in UK Regulat ions.

Explicit reference to using the procedures detailed in the UK Regulations22-23should be

made.

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As has been mentioned previously, as all undertakings* w ith more than 50 employees are or are

to be obliged to set up a mechanism for information and consulta tion , fo llow ing a valid request* ,

th is w ill give opportunities for unions to organise in areas where they have previously been kept

ou t.

Trade Union recognition remains the absolute priority, bu t Information and Consulta tion cou ld and

should be used as a way to achieving this in companies where trade un ion recognition has been

refused , or is not a viab le option in the short term.

Organising opportunities w ill arise fo llow ing different scenarios, a number of wh ich are listed

be low:

FTOs w ill be asked to h igh ligh t companies that are looking to sign an information and

consulta tion agreement, or where workplace representatives are seeking to make a valid

request.

Whilst the un ion expects trade unions to be able to nominate their representatives based on

th eir normal election arrangements, organisers may need to assist in any elections that are held,

as well as ident ifying and encouraging union members to stand in areas where the union does

not have recognition .

Organising for e lections, includ ing helping w ith any "union slate" and running information

campaigns, as well as organising opportunities around issues ra ised through the information and

consulta tion forum once it has been established.

Organising and recru itment high ligh ting the benefits of trade union membership, using

information and consulta tion as the vehicle.

Once a company has been high lighted, the communicat ions department should be kept

informed and invo lved for effective campa ignscentred on any e lection timetables and issues

management .

IRECRUITMENT,CAMPAIGNS AND ORGANISING

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Officials - have already received some training and this w ill be reinforced in the light of

experience. Officer's gu idance w ill assist in negotiat ing effective I&C arrangements and raise the

issue of employers try ing to use I&C to undermine the trade union structure.

Organisers - w ill need to be trained in the strengths and weaknesses of the Regulat ions to take

advantage of the opportunities for organising and recru itment. Organisers need to work together

w ith officers and plan strategically regarding the ident ificat ion of target companies. They w ill then

need to work in con junction w ith the campa igns department.

Workplace representatives should have training on the content of the Regulat ions and the

need to seek legal advice on the structure and content of agreements. Once Information and

Consulta tion structures are in place representatives w ill requ ire specific training to fulfil their roles.

The Information and Consulta tion Regulat ions, if imp lemented correctly w ill entrust workplace

representatives w ith a lot more information and invo lvement than may have been the case in the

past.

Education department - has bu ilt on the presentation that has already been provided to officers

and has also developed a number of activities includ ing a negotiat ing exercise . They are also

looking to introduce a section from an externa l institu tion regarding a course on financial

management accounting and interpret ing accounts etc.

IEDUCATION AND TRAINING

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GLOSSARY OFTERMS AND OTHER MATTERS

For the purposes of these Regulat ions

Data Requests - an employee of an emp loyees' representat ive may request data from the

employer for the purpose of determining the number of peop le employed by that undertak ing

in the United Kingdom.

Employee - an ind ividual who has entered into or works under a contract of employment.

Accord ing to the Regulat ions, when calculat ing the number of emp loyeesin an undertaking an

average is taken over a 12-month period . By using the term employee to calculate the

thresho lds, certain categories of workers are excluded if they are not employees, for example

temporary agency workers and sub-contractors.

The employer may (bu t is not obliged to)count a part-time employee as representing half a full-

time employee if they worked under a contract for 75 hours or less in any month during the

period for calculat ing employee numbers.

Negotiated agreement

Negotiated agreements may cover more than one undertak ing , or may provide for differentarrangements in different establishments.

In order to be va lid, negot iated agreements must:

set out the circumstances in which employers w ill inform and consult their employees

provide either for the appointment or e lection of Information and Consulta tion

representat ives, or for information and consulta tion directly w ith employees(or both)

be in wr iting and dated

cover all the employees of the undertaking , or group of undertakings if more than one

undertaking is to be covered

be signed by, or on behalf of the employer

be approved by the emp loyees - i.e . either signed by all the negotiat ing representatives; or be

signed by a majority of the negotiat ing representatives and either be approved in wr iting by

at least 50% of employees or approved by 50% of emp loyees who vote in a ballot .

An EAT decision hasconfirmed the view that an agreement w ith a trade un ion can cover all

the employees , even the non-union ists.

Pre-existing agreement

Th isiscan be an agreement that pre-dates the 1 April 2005 , or one agreed subsequent ly. If it

is not agreed fo llow ing a valid employee request, or formal invocat ion by the emp loyer (th e

tr igger for the process), then the righ ts to information and consulta tion are not legally

enforceable. Remember that if an emp loyer claims to have a pre-existing agreement does

not mean that there is one , which is va lid under the ICE Regulat ions.

A lthough the Standard Information and Consulta tion Prov isions are arguably minimum

requirements , the UK Regulat ions allow for pre-existing agreements that are considerably

less beneficial to employees.

In order to be va lid, pre-existing agreements must:

be in wr iting

cover all the employees of the undertaking

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set out how the employer is to give information to the employees or their representat ives and

to seek their v iews on such information

be approved by the emp loyees - methodscou ld include: a simp le ma jority among those voting

in a ballot of the workforce; a majority of the workforce expressing support through signature

or the agreement of representatives of employees who represent a major ity of the workforce

(includ ing trade union officials in workplaces w ith a recognised union ).

We should avoid agreeing to any pre-existing or negotiated agreement that isless

beneficial than the Standard Prov isions may be cha llenged as be ing in breach of the D irective in

the view of Unite AmicusSection experts. An EAT decision hasconfirmed the view that an

agreement w ith a trade union can cover all the employees , even the non-union ists. Where

employees be lieve that there is no valid pre-existing agreement in place allowing the employer to

ho ld a ballot for endorsing an employee request, a complaint may be made to the Central

Arb itration Committee (CAC)

Price-sensitive information

Information , which would be expected to cause a movement in a listed company'sshare price .

Publicsector application

The government says it " fully supports the principle that employees have a right to be informed

and consulted about important issues affecting them, regardless of w hether they are w orking in

what is legally defined as an "undertaking " . It hasconfirmed that it is in the process of

develop ing a Code of Practice w ith the civilservice un ions that w ill apply the principles of the

ne w leg islat ion to central government departments that do not constitute undertakings for the

purpose of the Regulat ions. It has been stated that Local authorities w ill not be formally

covered by the Code , but w ill be expected to adhere to its principles.

Representatives

There are two types mentioned in the Regulat ions:

Negotiat ing Representat ive - e lected or appointed by employees for the purpose of

negotiat ing the I&C Agreement. A ll employees must be ab le to take part in the appointment

or election of these representat ives.

Information and Consulta tion Representat ive - if provided for in the negot iated agreement,

I&C representatives are elected or appo inted to serve on the permanent I&C body, once the

I&C agreement has been validly endorsed .

I&C Representatives do not have to be the same people as negotiat ing representatives.

Standard Information and Consultation Prov isions

If an emp loyer and negot iat ing representatives fa il to agree an arrangement - or to extend thetime for negotiat ion - w ith in six months, or an employer fails to initiate negotiat ionsin the ligh t

of a valid request then the standard I&C provisions apply.

The details of the standard procedure are as fo llows:

On the selection of I&C representatives:

representatives must be elected in a ballot - wh ich it is the employer's ob liga tion to organ ise

the number of I&C representat ives is proportional to the number of emp loyeesin the

undertaking - one per 50 emp loyees or part thereof,sub ject to a minimum of two

representatives and a maximum of 25.

On the sub ject matter for the information and consulta tion provisions, namely

Information on " the recent and probable developments of the undertaking's activities and

economicsituation "

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Information and Consulta tion on "the situation ,structure and probable development of

employment w ith in the undertaking and on any ant icipatory measures envisaged,in

particular, where there is a threat to emp loyment w ith in the undertaking "

Information and Consulta tion on "decisions like ly to lead to substantialchangesin work

organisat ion or in contractu al relat ions " . Consulta tion in th iscategory is requ ired to take

place " w ith a view to reaching an agreement "

The Directive then prescribes the quality and method of informing and consulting . It states that

information must be given at such time ,in such fashion and w ith such content as are

appropriate to enab le,in particular, the information and consulta tion representat ives to conduct

an adequate study and, where necessary, to prepare for consulta tion .

Consulta tion must take place at an appropriate time , using appropriate means. The consulta tion

is expected to be at the relevant management leve l depending on the sub ject matter of the

discussions. The consulta tion is to take account of the information provided by the employer

and upon the opinion of the emp loyee representatives. It must be conducted in a manner,

which allows employee representatives to meet w ith the employer and to obta in a "reasoned

response " to any opinions expressed .

Undertaking

An undertaking is a separate legal entity.

For Unite AmicusSection operating in the private sector the definition of an undertaking in

most cases means a company w ith its own unique number at Companies House. Some

organisat ionsstructure themselvesso that they have a different company for each plan t, or

even different companies for different groups of workers, who work at the same place.

Remember an agreement may cover more than one undertaking though.

In the publicsector it is plain that an undertaking includes a local authority, NHS Trust,

college or university, but there may be complicat ions about who is the employer.

The Directive and the Regulat ions apply to "public or private undertakingscarrying out an

economic activity, whether or not operating for gain " . They may be partnerships,co-

operatives, mutuals, bu ilding societ ies, friendly societ ies, associat ions, trade unions, charities

and ind ividuals who are employers - if they carry out an econom ic activity. It may also include

schools, colleges, un iversities, NHS trusts, and Government bodies(both central and local),

again if they carry out an economic activity. Ultimate ly, DTI gu idance acknow ledges that it is a

matter for the CAC and the courts to decide .

Even before a request for a negotiated agreement is made , the Regulat ions allow the employer

to be asked to provide data to calculate the re levant number of employees in an undertaking ,

which must of itself reveal information to assist in determining the undertaking .

Valid employee request

A va lid request for an agreement to be negot iated can be either: a sing le request by 10% of

the workforce or a number of d ifferent requests by different employees over a period of 6

months which collective ly add up to 10% of the workforce.

Th isis important as a request by one person or on ly a few can constitute a request, which on ly

becomes a va lid request if the workforce can galvanise 10% of their number to sign the

pe tition , or submit requests of their own. A request by one or a few can also trigger the

en titlement to pursue a data request.It must be in wr iting , dated and sent to either theemployer or the CAC . Valid requestscan only be made once every 3 years. Requests may be

sent directly to the employer or can be made through the CAC , where they may be hand led

anonymously.

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ACASJoint Consultat ive Committee Constitution checklist

The title and ob jectives of the committee

Its terms of reference - the matters it can and/or cannot discuss and its powers

Itscomposition:

i. employee representatives(number,constituents)

ii . management representatives

iii . co-option and ex-officio provisions

iv. named deputies for representat ives

v. method for obtaining members, appo intment, election etc

Election procedure

i. who organises

ii . when held

iii . qualificat ions of candidates and voters

iv. nomina tions

v. voting arrangements

The period of office of members and arrangements for their retirement

Electing/nominating officers of committee, that is: cha irperson ,secretary

Meeting arrangements

i. frequency, advance notice

ii . when and where held

iii . procedure for placing items on the agenda

iv. arrangements for minutes

v. quorum

vi. duration of meet ings

Facili ties for committee members

i. time-off for liaising w ith constituents

ii . payment while attending meetings

iii . reporting arrangements

iv. publicat ion of m inutes

v. methods of reporting back

vi. responsibili ties

Methods of altering constitu tion

Source: ACASInformation and Consulta tion , good practice advice, 2004

APPENDIX 1

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Suggestions for contents of negotiated agreements

Coverage

The undertaking (or group of undertakings in the case of agreementscovering more than

one)covered by the agreement

Which staff in the undertaking (s) are covered by the agreement (as long as all employees are

covered)

Whether separate arrangements w ill exist in different parts of the undertaking (for example ,

in different establishments, organisat ional divisions or sections of the workforce)

Where the employer has one or more collective agreements w ith trade un ions, what the

re lat ionship is between those collective agreements and the negotiated information and

consulta tion agreement

Methods of information and consulta tion

The type of arrangements to be set up, includ ing whether there w ill be representatives of

employees, and/or direct information and consulta tion w ith the workforce

Whether any " hierarchy" o f structures w ill be set up, e.g. at national, region al, local leve l

How any representat ives of employees are to be chosen or appo inted , how many such

representat ives, ho w long they w ill serve, how they are to be replaced

Any obligations there may be on any emp loyee representatives, for example, to report back tothe workforce or to seek their v iews

The nature of any d irect forms of information and consulta tion w ith the workforce

Frequency and t imings of information and consulta tion

How often information and consulta tion w ill take place

When information and consulta tion w ill take place

Sub ject-matter

Types of sub ject to be covered

Ho w sub jects w ill be chosen and how agendas of any meetings w ill be drawn up

Information and consulta tion

The type and nature of information to be provided

How views/op inions of staff can be g iven

What the employer w ill do in response

Who w ill represent management at any meet ing

APPENDIX 2

The DTI's gu idance on the Information and Consultation Regulat ionsincludessuggestions for

contents of negotiated agreements, which it states, " is not intended to be prescript ive in any way" .

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Statutory consulta tion requirements

How other legal requirements to consult employees(e.g. on collective redundancies, business

(TUPE) transfers, health and safety, European Works Councils, pensions) w ill be handled where

relevant, and what the relat ionship w ill be w ith the consulta tion arrangementsset up under

th is negotiated agreement.

Confidential information

Ho w confidential or price-sensitive information w ill be dealt w ith (th is must be consistent w ith

the requirements in Regulat ions 25 and 26 concerning confidentialinformation )

Obliga tions on anyone in receipt of confidential information

Disciplinary measures for breach of any confidentiality restr iction

Disputes

How disputescan be resolved before making a forma lcomplaint to the Centra l Arbitration

Committee (though a negot iated agreement may not seek to prevent emp loyees or their

representatives bring ing a dispute to the CA C or an applicat ion or appeal be ing made to theEmployment Appeal Tribunal or an employment tribunal

Restructuring

Imp licat ions of company restructuring for information and consulta tion structures, for example

the imp licat ions for the number and ident ity of any employee representatives, or the possibili ty

of revising the agreement .

Duration of agreement

The duration of the agreement and circumstances in which it can be reviewed, rev ised or

terminated. Th iscou ld be important because there is a three-year moratorium from the date of

a negotiated agreement.

Source: DTI gu idance on the Information and Consultat ion Regulations

The DTI also advises that Employers and negotiat ing representatives are free to agree whatever

arrangements they w ish as to the method, frequency, timing and sub ject-matter of information

and consulta tion , accord ing to the specificcircumstances of their own organ isat ion!

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