1. Introduction
(a) Aim of the document and its use
The aim of this document is to provide employers with a practical model agreement that they can reach with their employee representatives on information and consultation that satisfies the requirements of the Information and Consultation of Employees Regulations 2004 (the Regulations).
The document takes the form of model clauses with explanatory notes followed, in Appendix 1, by a model confidentiality agreement and, in Appendix 2, by the text of the agreement without explanatory notes, for ease of reference. It is essential that every employer using this document should tailor the model clauses to meet its own circumstances and existing arrangements for information and consultation of employees, as well as its collective bargaining arrangements where there is a recognised trade union or unions.
The model agreement should not be seen in isolation but in the context of the whole business of the employer. If the agreement is to be a success in delivering real benefits to both the employer and the employees, it will require the full and active support of all managers from the time it is proposed through to finalising the agreement and its ongoing operation. Further, there will be a need for training, not only of employee representatives, but also management representatives to equip them better for their roles in introducing and operating the agreement.
(b) Reasons for establishing a voluntary agreement in the information and consultation process
There are three main reasons why employers should seriously consider entering into a voluntary agreement covering employee information and consultation. Firstly, there is substantial evidence that improved employee involvement through the type of indirect mechanisms set out in the model agreement, when combined with other tools for high performance working, helps to improve productivity. The EEF/CIPD publication “Maximising Employee Potential and Business Performance – the Role of High Performance Working” (www.eef.org.uk/UK/publications/) puts together some of the research that has been conducted on High Performance Working, making the business case for its introduction. In addition, it provides valuable information on implementation, maximising its impact and avoiding some common pitfalls. However, the model agreement should be seen as only one way to improve employer/employee dialogue and must be combined with others. For example, the importance of direct communication with employees and the direct involvement of individual employees in decision-making should continue to be promoted. Methods of direct information and consultation range from traditional face-to-face meetings to group meetings and cascade networks, usually in larger organisations.
The second reason for establishing a voluntary agreement prior to the Regulations coming into force and before a valid employee request has been made is that the law provides for much greater flexibility in drawing up the terms of a valid voluntary agreement that better suit the company’s particular circumstances than if the standard information and consultation provisions in the Regulations are imposed on the company, having been triggered by a valid employee request once the Regulations have come into force.
The third reason is that, once a valid voluntary agreement is established, it is relatively difficult for employees or their representatives to remove the voluntary agreement and replace it with the statutory system of standard information and consultation provisions in the Regulations.
(c) Summary of the legal requirements in the Regulations as they relate to voluntary agreements for information and consultation
The Regulations implement the 2002 EU Directive on informing and consulting employees. They apply to undertakings with at least 150 employees from 23 March 2005, those with at least 100 employees from 23 March 2007 and those with at least 50 employees from 23 March 2008. Undertaking means a legal entity, such as a company, which is “carrying on an economic activity, whether or not operating for gain”.
Once in force, the Regulations will apply only to relevant sized undertakings when they are triggered by a valid employee request for information and consultation arrangements. Therefore, it is perfectly legal for an employer with a relevant undertaking to do nothing once the Regulations come into force until the employer is faced with an employee request. However, deciding to do nothing until a valid employee request is received may not be the best decision for the reasons given above.
The basic legal requirements for a valid pre-existing agreement are that there must exist between the employer and the employees “one or more agreements which:
a) are in writing;
b) cover all the employees in 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 to seek their
views on such information”.
There will probably be very few employers with current information and consultation arrangements that fully
satisfy the legal requirements set out above for a valid pre-existing agreement. For example, the current
company arrangements may not be an agreement but may be information and consultation arrangements
imposed by the employer or the current arrangements may not cover ALL the employees in the undertaking. At other companies, the agreement may not be in writing and may simply be a reflection of changing custom and practice. Therefore, nearly all employers will need to take some action if they want to establish a valid preexisting agreement. In any event, companies need to ensure their agreements accurately reflect what takes place in practice
There are obviously different ways that the basic requirements for a valid pre-existing agreement can be satisfied, and each employer will be in a different position. For example, some employers may have existing information and consultation arrangements that they wish to build on, while other employers will want to make a fresh start. Some employers may have recognised trade unions with which they bargain collectively about terms and conditions of employment that need to be taken into account in any information and consultation system, while other employers will not have any recognised trade unions.
The model tries to take into account a wide variety of circumstances but, as has been stated earlier, it is essential that the model is tailored to meet the particular circumstances of each company. However, in order to provide a model that is reasonably clear and does not contain too many confusing options, the model agreement does make certain basic assumptions. These are that:
a) There will be a secret ballot for the election of most or all employee representatives.
b) The agreement will be approved by the employee representatives.
c) The information and consultation process will be with employee representatives.
It is very important to understand that the model agreement is based on these basic assumptions as they determine many aspects of the model agreement. It is possible to have a different system, not based on these assumptions, which, for instance, would be based on direct information and consultation with all employees and be approved by all the employees covered by the agreement. However, this alternative approach may be difficult to organise and operate effectively except in the smallest undertaking, and so is not reflected in the model agreement set out below.
CLAUSE 1 – The Parties
This agreement is made this .. day of ……. 200... between ……… (the Employer) and Employee Representatives to establish a ……(Committee) to improve employee information and consultation.
Notes on Clause 1
1. For a discussion of who are to be employee representatives, see notes 4 and 5 to Clause 4 below. They will need to be elected or appointed prior to the making of this agreement.
2. There is no legal requirement concerning what the information and consultation body is to be called. Such bodies are often called consultative committees, forums or councils.
3. It would usually be helpful for the agreement to set out in greater detail the general aims of the information and consultation body. The phrase “to improve employee information and consultation” is minimalist. When drafting to provide more detail on the aims, it is useful to remember the two desired outcomes of information and consultation, which are improved business performance and to have employees who feel more involved and valued. This is concisely reflected in the DTI consultation document, “High Performance Workplaces – Informing and Consulting Employees”, when it states: “Effective employee dialogue can help staff feel more involved and valued by their employer, make them better aware of the business climate in which the organisation is operating and help them be more responsive to and better prepared for change. This should allow a greater ability to react rapidly to opportunities and threats, thereby ultimately enhancing a company’s productivity.”
CLAUSE 2 – The terms of reference
The (Committee) will be kept informed by the Employer of the recent and the probable future development of the (undertaking’s) activities and its economic situation. The (Committee) will be informed and consulted by the Employer on the situation, structure and the probable development of employment within the (undertaking). For the purpose of this Agreement, “consultation” means the exchange of views and the establishment of a dialogue between the Employee Representatives and the Employer. Typical examples of issues for consideration by the (Committee) are …… (e.g., company performance, training and development, work arrangements).
The role of the Committee in respect of the following topics is as follows:
a) Collective redundancies
Collective redundancies, as defined by the Trade Union and Labour Relations (Consolidation) Act 1992 as amended, (will be within the terms of reference of the (Committee) and will be the subject of information and consultation in accordance with the 1992 Act as amended), (but where there is a recognised trade union for any affected employees, that recognised trade union will also be informed and consulted) OR (will be dealt with in accordance with alternative information and consultation arrangements which satisfy the requirements of the 1992 Act as amended, and will not be within the terms of reference of the (Committee)).
b) Business transfers
Business transfers, as defined by the Transfer of Undertakings (Protection of Employment) Regulations 1981 as amended, (will be within the terms of reference of the (Committee) and will be the subject of information and consultation in accordance with the 1981 Regulations as amended) (but where there is a recognised trade union for any affected employees, that recognised trade union will also be informed and consulted) OR (will be dealt with in accordance with alternative information and consultation arrangements which satisfy the requirements of the 1981 Regulations as amended).
c) Occupational pensions
Occupational pensions, as defined by the Social Security Act 1975, (will be within the terms of reference of the (Committee) and will be the subject of information and consultation in accordance with the 1975 Act) OR (will be dealt with in accordance with alternative arrangements which satisfy the requirements of the 1975 Act and will not be within the terms of reference of the (Committee)).
d) Individual issues
Individual issues that relate to particular employees including specific grievance and disciplinary matters will not be within the terms of reference of the (Committee).
e) Collective bargaining
The terms of reference of the (Committee) shall exclude topics covered by collective bargaining with trade unions at the (undertaking) in so far as these topics relate to employees whose terms and conditions of employment are established by collective bargaining.
f) Health and safety issues
Health and safety issues, as defined by the Safety Representatives and Safety Committee Regulations 1977 and the Health and Safety (Consultation with Employees) Regulations 1996 (will be within the terms of reference of the (Committee) and will be the subject of information and consultation in accordance with those Regulations) OR (will be dealt with in accordance with alternative information and consultation arrangements which satisfy the requirements of these Regulations, and will not be within the terms of reference of the (Committee)).
g) ………………………… (e.g. other issues requiring specific mention)
The Employer and Employee Representatives on the (Committee) shall work in a spirit of co-operation with due regard to their rights and obligations taking into account the interests of both the (undertaking) and the employees. The views of the Committee will be taken into account by the Employer but the Employer remains ultimately responsible for the operation of the (undertaking).
Notes to Clause 2
1. The terms of reference clause defines the scope of the Committee’s work, gives a broad definition of consultation, which is the same as the main definition in the Regulations, and establishes the advisory nature of the Committee. Employers using this model may wish to be more specific in their own agreements, but all the issues raised in the model clause require serious consideration.
2. The definition of the scope of the Committee’s work is handled by way of a general description, some typical examples of issues covered and, finally, a more specific provision to address particular issues which can either be included or excluded from the scope of the agreement, depending on the company’s circumstances.
3. The employer must decide whether it wishes to use the Committee to inform and consult about collective redundancies and business transfers. The law already requires collective information and consultation about these issues and so the decision is whether to use the Committee or whether the employer will adopt some alternative arrangement to satisfy the law. Even if the Committee is selected as the body to be informed and consulted about a proposed business transfer or collective redundancies, there will be a continuing legal obligation to inform and consult trade unions recognised for any groups of employees where there are employees affected by the redundancy or business transfer.
4. With regard to the inclusion or exclusion of occupational pensions and health and safety issues from the scope of the Committee, this depends on the employer’s own circumstances and whether it wishes to give the Committee a broad remit, or restrict it and use different groups and committees for different issues. Whether included or excluded from the scope of the agreement, the employer remains obliged to inform and consult about health and safety, and about certain aspects of occupational pension schemes. The Pensions Bill that is currently being discussed in Parliament contains new legal requirements for employers to consult before making significant changes to their occupational pension schemes that are likely to come into force during 2005. The details of these new requirements are not yet known but it is anticipated that information and consultation arrangements that have been set up under the Regulations will be one of the methods that can be used to satisfy these new requirements.
5. Clause 2(d) excludes individual employee matters from the scope of the Committee’s work. This is almost universal in such agreements because it is not usually appropriate to have general discussion about issues affecting an individual employee. The Committee should focus on matters of general interest with individual issues being dealt with through the employer’s grievance and disciplinary procedures.
6. The problem of the relationship of the work of the Committee with collective bargaining where there is one or more recognised trade union is a difficult one. Obviously, if there are no recognised trade unions, Clause 2(e) does not need to be included in the agreement. However, where there is one or more recognised trade union there is no simple solution and Clause 2(e) is only one possible approach. This approach separates information and consultation from collective bargaining and provides that the Committee will not discuss any collective bargaining issues as they relate to employees covered by collective bargaining. Recognised trade unions are likely to be concerned about the relationship of collective bargaining to information and consultation committees, fearing that the union’s position may be undermined. Further, even if trade unions are positive about information and consultation committees, they will see such committees as stepping stones to wider trade union recognition and collective bargaining for employees where they are not currently recognised. Other options for Clause 2(e) are to state that the Committee can discuss collective bargaining issues as they relate to both employees covered and not covered by collective bargaining, but that any negotiations would only be with the recognised union or unions, or to provide that some sub-group of the Committee, dominated by or exclusively made up of union representatives, would do the negotiating with the employer about the issues for employees covered by collective bargaining.
7. Clause 2(g) is left blank in the model agreement as a positive reminder that the employer may wish to address other issues which are and are not covered in the agreement. For example, some larger employers may wish to have a formal structure of different levels of information and consultation committees, while others might wish to deal with such issues if and when they arise on an ad hoc basis. If a formal approach is adopted then some issues might be reserved for different tiers, and this should be reflected in the agreement. For large employers with European Works Councils (EWCs), there is the similar issue of whether or not there should be any express links between the EWC and the UK information and consultation Committee and, if there are to be links, how these are to be defined and whether they will affect the scope of the work of the Committee.
8. The final part of Clause 2 provides for the parties to co-operate, which is closely modelled on the provisions in the EU Directive, and also states that the Committee is advisory. Depending on the employer’s views, this part could be expanded to emphasise particular concerns about how the Committee should operate in practice and how it fits in with other communication and consultation systems used by the employer.
CLAUSE 3 – Employees within scope of the agreement
This agreement covers all employees at (……………..).
Notes on Clause 3
1. A valid pre-existing agreement must cover all the employees in the undertaking and can be either a single agreement or a number of different agreements. It is important to note that a valid pre-existing agreement must cover ALL employees – this means that it should cover the most senior and the most junior employees, as well as employees that work part-time, fixed term employees and those employed on contracts of employment of indefinite duration. However, it does not have to cover agency or contract workers.
2. For the purposes of the Regulations, an undertaking is a legal entity, e.g. a limited liability company. If the employer is a limited liability company that employs all its employees at one location, then it is simple to see how the statutory provisions operate. However, business structures can be complex.
3. The following examples illustrate some of the issues and how the provisions operate:
(a) Company A has three factories that are geographically separate, and all of the employees are employed at one of these three factories. A valid pre-existing agreement will be either one single agreement covering all employees at the three factories or a number of agreements which, when combined, cover all employees employed by Company A. There might be good reason for the company to consider separate agreements if the three businesses are each very different from one another, for example in terms of products produced, organisational structure or employee relations culture.
(b) Company X is a subsidiary of Company Z. Company X employs all its employees at two different establishments. Company Z employs a few people at its headquarters but also controls other subsidiary companies (M, N and O) where people are employed. With regard to Company X, the legal requirements for a valid pre-existing agreement will be satisfied if there is an agreement to cover all employees at the two establishments, or two agreements that when combined cover all employees of Company X. Company Z and its other subsidiaries (M, N and O) are all separate legal entities, and do not need to be covered in the agreement for Company X to satisfy the legal requirements. However, Company Z may wish to consider whether there would be value in establishing a committee covering all its subsidiary companies so that issues of general interest that are centrally determined could be discussed. Where either the employer has a large number of different establishments, or there is a large, complex corporate structure, consideration should be given to a tiered approach to information and consultation committees, or at least a recognition that ad hoc meetings might be useful or necessary on some occasions to deal with issues relating to the whole group of companies.
CLAUSE 4 – Composition of the (Committee)
The (Committee) shall consist of:
a) The Chairman who ….
b) The Secretary who …….
c) ….. management representatives to be appointed from time to time by the Employer.
d) Employee Representatives from the following constituencies: … (who will be elected in accordance with clause ….) (and Employee Representatives from the following constituencies (who will be nominated by the recognised trade union for that constituency)).
Notes on Clause 4
1. The employer must consider what size of Committee is most suitable. Smaller committees tend to work better than large committees and, as a very general rule, a committee of more than 12 people needs to be justified. Another guide for size could be to use the standard provisions for information and consultation set out in the Regulations that can be imposed on an unwilling employer, which provide for one representative to be elected per 50 employees, or part thereof, up to a maximum of 25 representatives. However, this formula tends to produce over-large committees, even for large companies. Finally, while still bearing in mind the need to avoid a very large committee, the size of the Committee could be determined by the number of constituencies that need to be taken into account. This could reflect the actual structure of the organisation so that each constituency feels represented by someone who is aware of its circumstances and concerns. Using this constituency approach, if the organisation is very diverse then it suggests more constituencies (and so more employee representatives) than if all or nearly all employees are doing the same or similar things. Traditionally, constituencies have been based on criteria such as occupational group, grade, shift, functional or operational areas and geography, or some combination of these criteria. It is not necessary that each constituency should contain the same number of employees, but very great discrepancies in the size of constituencies may give rise to problems, unless very large constituencies are to have more than one representative.
2. With regard to who is to chair the Committee, it is usual that this is a senior member of management who is identified by job title. This need not be the most senior employee, such as the Managing Director, but his or her express support for the Committee will be necessary. The role of Secretary is important to the successful operation of the Committee, and this could be someone appointed by the company from, for example, the personnel function, or it could be an elected post, although this is not common in manufacturing. If it is to be an elected post, it will be important to provide the elected individual with sufficient time and resources and, if necessary, training, in order for the individual to be able to do the Secretarial job well.
3. The number of management representatives on the Committee does not have to equal the number of employee representatives, and the number is usually less. However, if the Committee is to be successful, it is important that it is seen by employees and their representatives to have the active involvement and endorsement of senior management. It may be useful in some cases, in order to optimise the amount of management time that has to be devoted to the Committee’s work, to make it clear in the agreement that other members of the management team may be co-opted onto the Committee by the Chairman when specific topics on the agenda fall within their area of responsibility.
4. As far as employee representation is concerned, the model agreement adopts the general approach that all these representatives should be elected. This approach has a number of advantages, which include certain compliance with the legal requirements for a valid pre-existing agreement, employee involvement and a legitimacy for those elected as the genuine representatives of all employees in their constituencies.
5. However, in some cases where there are recognised trade unions at the workplace for particular groups of employees, these recognised trade unions may argue that some or all of their own union representatives should be employee representatives on the Committee without any election by all the employees in the constituency. If faced with this issue, the employer will have a number of options, but the response will depend on the strength of the union or unions concerned, particularly in terms of the percentage of union members to non-members in the constituency, and whether there is a real need for their positive participation in the Committee if it is to be a success. The main options are:
(a) If the group of employees for whom the union is recognised is the same as a constituency for employee representatives, the employer could agree to allow the union to nominate a representative without an election. If an employer were to make this significant concession, the employer might wish to require that any such person nominated by the union to be an employee representative must be an employee of the employer and will otherwise have the same rights and obligations as other elected employee representatives. Alternatively, the employer could reject the union claim and emphasise that all employee representatives on the Committee should be elected by all the employees in the constituency, that union members will have the same chance to stand in elections as any other employees, and that everyone should have a chance to vote and stand for election with all employees involved.
(b) If the group of employees for whom the union is recognised is different from the constituency or constituencies that are planned, the employer has the additional point to make to the union (if it wishes to reject the request for nomination by the union) that the union should not be able to represent automatically employees where it does not have recognition and where union membership may be low.
CLAUSE 5 - Election procedure
a) The Employee Representatives will be elected by secret ballot and the election will be organised by …….
b) There will be regular elections and at least … days notice will be given of an election.
c) All employees of the ….. on the date of the election shall be entitled to vote for any of the candidates nominated for the employee’s own constituency.
d) The candidates for election on the date of the election
(i) must be employees of …..
(ii) must be employed in the constituency that they wish to represent
(iii) must have been proposed and seconded in writing by employees in the candidate’s constituency
(iv) ……….
e) The votes in the secret ballot will be counted by …… and all candidates for election will be entitled to attend the counting of the votes. The candidate with the highest number of votes in his or her constituency will be declared the Employee Representative for his or her constituency. The election results will be published on ………. .
f) Candidates for election will be entitled to ……. .
Notes on Clause 5
1. The organiser of the election can be either the company itself (e.g. the Personnel Department), or some independent body experienced in this type of work, such as the Electoral Reform Society, or some combination of the two. It is clear that, if the election process and results are to have the confidence of employees, the whole process must be seen as open, free and fair.
2. There should be regular elections. The main issue of how often there should be general elections is linked to the period of office of employee representatives which is covered in Clause 6. The decision about the frequency of elections should be based on balancing the need for having experienced employee representatives against the need for encouraging new ideas and the involvement of employees. An election every year for all employee representatives is likely to be too frequent, while holding elections only every five years or more is likely to prove too infrequent. There is also the need to consider what will happen if employees cease being employee representatives between “general” elections which is dealt with in Clause 6.
3. Any other specific criteria for eligibility to qualify to be a candidate, such as length of service or disciplinary record, should be spelt out clearly in the agreement. For example, the agreement might require employees to have a minimum of two years’ continuous employment in order to qualify to stand as a candidate for election. It is important that any such exclusory criteria are justifiable and do not unfairly discriminate.
4. It is common for all the candidates to be entitled to be present at the counting of the vote, and/or for someone to be appointed to oversee the accurate counting of the votes.
5. Consideration needs to be given in advance of the election as to what, if any, facilities and time off are to be granted to employees that stand as candidates to cover the period between when they become candidates and the date of the election.
CLAUSE 6 – Period of office of employee representatives
a) Subject to Clause 6 c), the period of office for Employee Representatives will be ….. years. Employee Representatives can stand for re-election.
b) An Employee Representative will cease to hold office if he or she
(i) ceases to be an employee of …… (or ceases to be employed in his or her constituency)
(ii) resigns as an Employee Representative by giving not less than … weeks notice in writing to the Secretary
(iii) is absent from work for more than …… weeks due to sickness or injury
(iv) fails to attend ….. consecutive meetings of the (Committee)
(v) ……………. (e.g. breach of confidentiality)
When an Employee Representative ceases to hold office other than by reason of the expiration of his or her period of office, there will be an election by secret ballot in the constituency to fill the vacancy and the employee elected will hold office as the Employee Representative for the remaining period of office.
c) For the first general election of Employee Representatives only, some of the Employee Representatives will have a period of office of …. and the rest of the Employee Representatives will have a period of office of ……. The Employer will decide prior to the first general election of Employee Representatives which constituencies are to have Employee Representatives with a period of office of ….… and which constituencies are to have Employee Representatives with a period of office of ……… Thereafter, the period of office of Employee Representatives will be as in clause 6 a).
Notes on Clause 6
1. It is suggested that the period of office of employee representatives should be between two and four years (see Note 2 on Clause 5). The clause is drafted to allow for a phased election process so that after the first general election all employee representatives do not stand for election simultaneously. This phased system is a little complicated but does probably lead to greater continuity of employee representatives. If this system of phased elections is not required, then Clause 6 c) should be deleted, along with the first three words of Clause 6
a). The clause allows employee representatives to stand for re-election. If it is decided to restrict this right, the clause needs to be amended.
2. The clause should set out the circumstances when an employee representative will cease to hold office. Clause 6 b) should be modified to meet the employer’s particular requirements. For example, Clause 6 b) (iii) and (iv) cover long-term ill health absence and simple failure to attend. These two provisions could be combined in a single provision, but they cover different situations that may be best kept separate. The employer may wish to include other reasons why an employee representative should cease to hold office. This could include breach of confidentiality, but any other reasons need to be carefully considered and be justifiable before they are included, because they might suggest that the employer is only interested in having “yes” men elected. This perception would fundamentally undermine the credibility of the Committee and its role in improving consultation and involvement of employees.
CLAUSE 7 – Meeting arrangements
a) The (Committee) will usually meet ……. during normal working hours at ……, and the meetings of the (Committee) will usually last for …… The Chairman will decide when the (Committee) will meet and the agenda for each meeting of the (Committee).
b) The Secretary will give as much advance notice as practicable of the dates and the agenda for meetings of the (Committee) to members of the (Committee).
c) Any member of the (Committee) can put forward items for inclusion on the agenda and suggested items should be communicated to the Secretary as early as possible.
d) The Secretary will produce brief minutes of the meetings of the Committee which when approved by the
Chairman will be circulated to members of the Committee (and to all employees).
e) …………… (e.g. quorum)
Notes on Clause 7
1. Clause 7 sets out a very simple set of rules for meeting arrangements. Some employers may wish to have more precise rules containing, for example, the details of frequency of meetings and more specific time periods within which things have to be done. For example, there could be a rule that the agenda approved by the Chairman should be sent by the Secretary to Committee members at least five days in advance of the day that the Committee is meeting. This would mean that suggested items for inclusion would have to be given to the Secretary earlier than five days before a meeting, but it could mean employee representatives would have sufficient time before the Committee meeting to consult their constituents about each item on the agenda.
2. The issue of the Secretary producing minutes of the meeting of the Committee that, when approved by the Chairman, will be circulated to Committee members raises the broader issue of reporting arrangements, which is dealt with later in greater detail. However, the success of the Committee and its ability to help the employer’s business performance depends significantly on the flow of information to and from employees through the Committee.
3. Clause 7 e) is included to indicate that there may need to be other rules for meeting arrangements, such as setting a quorum, but issues relating to the responsibilities of Committee members and confidentiality are dealt with later in the model agreement.
Clause 8 - Facilities for committee representatives
a) Employee Representatives will be entitled to time off with pay to attend all meetings of the (Committee).
b) Employee Representatives will be entitled to reasonable time off with pay to prepare for meetings of the
(Committee) and to report back to their constituents on meetings of the (Committee), but must seek the prior
permission of their manager before taking any time off work to prepare for, or report back, on meetings of the (Committee).
c) ……………. (e.g. other facilities)
Notes on Clause 8
1. The clause provides for all employee representatives to be given time off with pay to attend all meetings of the Committee and reasonable paid time off to prepare for and report back on meetings, subject to prior permission from their manager being granted. The clear analogy is with the statutory right to paid time off for trade union duties and, therefore, the ACAS Code of Practice on Time Off for Trade Union Duties and Activities is of use when considering this topic. Employers may wish to include in the clause clearer guidance on how much time is likely to be needed to prepare for and report back on meetings. Although there is always the risk of abuse when time off work with pay is granted, it is important for the success of the Committee that employee representatives do not suffer financially because they are representatives and that they have sufficient time to perform their representational role properly, including developing a good dialogue with their constituents.
2. Employee representatives may sometimes request other facilities from the employer, such as the use of rooms, access to word processing and photocopying facilities or even for the employer to pay for them to receive independent professional advice on issues such as occupational pensions and health and safety if these are within the terms of reference of the Committee. Also employee representatives sometimes ask for these independent professional advisors to be present at meetings of the Committee. These types of issues could be dealt with expressly in this clause if the employer regards them as significant and not suitable for “ad hoc” treatment.
CLAUSE 9 – Reporting arrangements
a) The minutes of meetings of the (Committee) will be circulated to all employees by the Secretary.
b) Employee Representatives will report back to their constituents about
meetings of the (Committee).
Notes on Clause 9
1. Prompt and accurate reporting back to all employees of meetings of the Committee is vital, and its importance should be reflected in the agreement. With regard to the minutes of the meetings, the Secretary must prepare the minutes as soon as possible after the meeting and the Chairman should approve the minutes promptly so that they can be circulated to all members of the Committee as well as to employees. The circulation of the minutes is usually the responsibility of the Secretary and should ideally precede any formal reporting back by employee representatives to their constituents.
2. Clauses 9 a) and b) need to be completed with the details to suit the employer’s circumstances. For example, there are issues concerning who will circulate the minutes, whether the minutes will be circulated to Committee members prior to general circulation to all employees and whether there should be precise timescales. With regard to reporting back by employee representatives, the typical details that should be added to meet company circumstances are whether the reporting back should expressly follow the circulation of the minutes, how the reporting back is to be performed and whether there should be precise timescales to prevent tardy reporting. It is also important that managers and supervisors are kept properly informed about issues discussed by the Committee so that they do not feel alienated and disadvantaged by the process.
CLAUSE 10 - Responsibilities of employee representatives
a) All Employee Representatives agree that they will undergo training …… to assist them in carrying out their role as Employee Representatives.
b) Employee Representatives agree to attend meetings of the (Committee), to report back to their constituents about such meetings, and to gain the views of their constituents.
c) Employee Representatives agree to represent to the best of their ability all the employees in their constituency, and will reflect their views at meetings of the (Committee). The Employer assures Employee Representatives that any views expressed by them in good faith as representatives of their constituencies will not prejudice their position and prospects as an employee.
d) Confidential information:
(i) Employee Representatives agree that when they receive from the Employer written or oral information which is classified by the Employer as confidential that they will not divulge that information to any third party, including fellow employees, or otherwise make use of such information. The obligation regarding confidentiality will apply indefinitely, or until the information in its entirety comes properly into the public domain.
(ii) In the case of a breach of confidentiality by an Employee Representative, the Employer reserves the right to take disciplinary action up to and including dismissal and/or legal action against the individual, and that individual will cease to be an Employee Representative, and will not be eligible to become a candidate for election.
(iii) Once Employee Representatives have been elected, they will be required to sign individual confidentiality agreements.
Notes on Clause 10
1. Clause 10 sets out the responsibilities of employee representatives. This clause could be supplemented or replaced by a Code of Conduct for Employee Representatives which could deal not only with these responsibilities but also with the general role of such representatives in a direct and practical way.
2. Clause 10 a) commits the employee representatives to undertake training. Training is essential to help the employee representatives to fulfil their roles properly and to make a contribution to business improvement. As mentioned earlier, it may also be useful to provide training for employer representatives on the Committee. Some companies have found it valuable to provide joint training for employee and employer representatives to build common understandings and improve relationships between them. The gap in Clause 10 a) is to allow for the employer to be more specific about training. Your EEF Association will be able to assist you with training for members of the Committee. The training that will be required will not only provide support for being a member of the Committee but will also develop the skills needed to understand the business information that will be provided to members of the Committee.
3. Clause 10 b) contains a general description of the responsibilities of employee representatives. Clause 10 c) emphasises that employee representatives represent all employees in their constituency rather than just some of them who are friends and that the representative is not elected just to express his or her personal views and prejudices. If employee representatives are to reflect accurately the views of their constituents, which may sometimes be critical of the employer, they can justifiably expect the employer to set out in the agreement that the expression of such views by employee representatives will not prejudice their career with the employer.
4. Clause 10 d) deals with the difficult issue of confidentiality. The provision is based on the idea that employee representatives only need to treat information given to them as confidential when the employer tells them that the information is confidential. Therefore, it is the responsibility of the employer to identify clearly what is confidential material. If the employer is too keen to label information as confidential when it is not, the employer will get less out of the process as general employee involvement will be lost and employee representatives will grow sceptical. The clause also spells out the sanctions that may be imposed for breach of confidentiality. This will emphasise the seriousness of the issue and hopefully deter breaches of confidentiality.
5. In Clause 10 d) (iii), the employer must decide whether or not to include reference to specific confidentiality agreements to be signed by individual employee representatives. It is not an essential part of the model agreement and the use of such individual confidentiality agreements may be seen as oppressive if the disclosure of confidential information by the employer to the employee representatives is very rare. Also different companies have different practices to safeguard confidential information and these practices need to be taken into account. For example, if it is common for company executives to have to enter into confidentiality agreements, then the use of such agreements with employee representatives will seem more normal. Your regional Association will be able to assist you with drafting individual confidentiality agreements.
CLAUSE 11 – Resolving disputes
If there is a dispute between the parties about the meaning of the Agreement and this cannot be resolved at meetings of the ………. (Committee), a small group comprising …………… will meet to use their best endeavours to resolve the dispute. If the small group cannot resolve the dispute, (and if both parties agree),
the dispute will be referred to …………. .
Note on Clause 11
This clause provides the framework for a simple procedure to resolve disputes about the meaning of the agreement. The idea is that the first step in the procedure would be internal with, for example, two representatives of management and two employee representatives being tasked to try and find an acceptable solution to the dispute. The second step would be external and involve seeking assistance from an independent third party, such as ACAS. The clause should make it clear whether or not the second stage external reference happens automatically where there is a dispute or only when it is specifically agreed by both parties. It would also be useful if the second stage sets out the nature of this third party involvement, e.g. conciliation, mediation or arbitration.
CLAUSE 12 – Amending the agreement and termination of the agreement
a) The clauses