The Employee (Information and Consultation) Regulations (S.L 452.96) (the ‘Regulations’) make provision for the right to information and consultation of employees including the election of an employee representative to represent categories of employees which do not fall under a trade union. These Regulations bind employers to ensure that they make the practical arrangements in order to allow employees to be able to effectively exercise their right to information and consultation by setting out the minimum provisions which must be adhered to.

WHO DO THESE REGULATIONS APPLY TO?
The Regulations apply to undertakings which employ 50 or more employees. An undertaking is defined as any public or private undertaking carrying out an economic activity, whether or not operating for gain. Thus, these Regulations apply to a wide range of employers, from private companies to voluntary organizations not operating for gain.
WHAT IS THE RIGHT TO INFORMATION AND CONSULTATION OF EMPLOYEES?
An employer must provide information to the trade union and/or employee representative/s on:

1. The development of the undertaking’s activities and economic situation;
2. The situation, structure and probable development of employment within the undertaking including any anticipatory measures envisaged where there is a threat to employment; and
3. Decisions likely to lead to substantial changes in the work organisation or contractual relations.

When an employer consults on points b and c listed above, the employer must ensure that:

• such consultation is conducted in a manner which ensures that the timing, method and content of the consultation are appropriate;
• the consultation is based on the information passed on to the employee representative/s by the employer as well as the representative’s opinion which may have been expressed to the employer;
• the consultation enables the employee representative to meet the relevant level of management depending on the subject being discussed; and
• the consultation in relation to matters falling within point c above is made with a view to reaching agreement on decisions within the scope of the employee’s powers.

Where not all employee categories are covered by a trade union, the employer must communicate with both the representatives of the trade unions and the elected employee representative/s. Furthermore, if previously unrepresented categories of employees start being represented by a recognized trade union, the term of office of the employee representative of such category of employees shall be automatically terminated.
HOW IS AN EMPLOYEE REPRESENTATIVE CHOSEN?
The employer must assist employees with electing an employee representative. The employer should make any arrangements which are reasonably practicable to ensure that the ballot is fair and should inform the Director of the Department of Industrial and Employment Relations with the procedure which will be followed at least 1 month before the projected date of the ballot.

Where some categories of employees within an undertaking are covered by a trade union, only employees within the unrepresented categories of employees are entitled to take part in the secret ballot to select the representative/s.

Any employee who is not within his probationary period may apply to be elected as the employee representative and should there only be one candidate on the date of closing of submissions, such candidate will be automatically elected.

The number of representatives elected must be of 1 representative per unrepresented category and such elected representatives shall hold office for 3 years from the date of election. In the event of resignation or expiration of the 3-year term, the employer must hold another ballot to elect new representatives.
WHAT ARE AN EMPLOYER’S OBLIGATIONS FOLLOWING ELECTION OF A REPRESENTATIVE?
Following the election, the employer must inform employees in writing of the identity of their representative and hold a first information and consultation meeting within 2 months of the election date. An employer must hold a minimum of at least 1 meeting within 6 months after the date of each preceding meeting.
IS THE EMPLOYEE REPRESENTATIVE BOUND BY CONFIDENTIALITY?
An employer is not required to disclose any information to a representative under the Regulations where the nature of the information would harm the functioning of or would be prejudicial to the undertaking. Where there is a dispute with regards to whether any information is to be deemed as sensitive and thus should not be disclosed to the representatives, this may be referred to the Industrial Tribunal. The Industrial Tribunal will decide according to objective criteria, whether the information would seriously harm the functioning of the employer.

An employer may also disclose information to the representatives and require that such is to be held in confidence and should not be disclosed. In this case, an application may also be made to the Industrial Tribunal for a declaration as to whether it was reasonable for the employer to require the information to be kept in confidence.

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