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S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

I, Mary Harney, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Council Directive No. 2001/23/EC of 12 March 20011 , hereby make the following regulations:

1.         These Regulations may be cited as the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

Definitions.

2.         (1)      In these Regulations -

“Act of 1963” means the Companies Act 1963 (No. 33 of 1963);

“Act of 1988” means the Bankruptcy Act 1988 (No. 27 of 1988);

“contract of employment” means -

(a)     a contract of service or apprenticeship, and

(b)     any other contract whereby an individual agrees with another person who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 (No. 27 of 1971), and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;

“Council Directive” means Council Directive No. 2001/23/EC of 12 March 2001;

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of these Regulations, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956 (No. 46 of 1956)) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a harbour authority, health board or vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be;

“employees' representatives” means:

(a)     a trade union, staff association or excepted body with which it has been the practice of the employees' employer to conduct collective bargaining negotiations, or

(b)     in the absence of such a trade union, staff association or excepted body a person or persons chosen by such employees (under an arrangement put in place by the employer under Regulation 7(2) or 8(5)) from among their number to represent them in negotiations with the employer,

and cognate expressions shall be construed accordingly;

“employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;

“enactment” includes an instrument made under an enactment;

“excepted body” has the meaning assigned to it by section 6 (3) of the Trade Union Act 1941 (No. 22 of 1941);

“merger” has the meaning assigned to it by the European Communities (Mergers and Divisions of Companies) Regulations 1987 ( S.I. No. 137 of 1987 );

“Minister” means the Minister for Enterprise, Trade and Employment;

“trade union” means a trade union which holds a negotiating licence under the Trade Union Act 1941 ;

“transfer” shall be construed in accordance with Regulation 3;

“transferee” means any natural or legal person who, by reason of a transfer within the meaning of these Regulations, becomes the employer in respect of the undertaking, business or part of the undertaking or business;

“transferor” means any natural or legal person who, by reason of a transfer within the meaning of these Regulations, ceases to be the employer in respect of the undertaking business or part of the undertaking or business;

“Tribunal” means the Employment Appeals Tribunal.

 (2)      A word or expression that is used in these Regulations and which is also used in the Council Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

 (3)      A reference in these Regulations to a regulation is a reference to a regulation of these Regulations, unless it is indicated that some other regulation is intended and a reference in these Regulations to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which it occurs.

Application.

3.          (1)     These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

 (2)      Subject to this Regulation, in these Regulations -

“transfer” means the transfer of an economic entity which retains its identity;

“economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.

 (3)      These Regulations shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain.

 (4)      An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a transfer for the purposes of these Regulations.

 (5)      These Regulations shall not apply to sea-going vessels.

Rights and obligations.

4.          (1)     The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

 (2)      Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

 (3)      Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors’ benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts.

 (4)       (a)    The interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2003 are protected under those Acts.

(b)     The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2003, are protected.

Dismissals and termination of employment.

5.          (1)     The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited.

 (2)      Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce.

 (3)      If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

 (4)      If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001 relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.

Bankruptcy or insolvency.

6.          (1)     Regulations 3 and 4 of these Regulations shall not apply to any transfer of an undertaking, business or part of an undertaking or business where the transferor is the subject of bankruptcy proceedings or insolvency proceedings.

 (2)      For the purposes of paragraph (1) bankruptcy proceedings or insolvency proceedings shall mean the following:

(a)     proceedings whereby the transferor may be adjudicated bankrupt under section 14 or 15 of the Act of 1988;

(b)     proceedings whereby the estate of a deceased transferor may be administered in bankruptcy under section 115 of the Act of 1988;

(c)     where the transferor is a partnership, proceedings whereby all the members of the partnership may be adjudicated bankrupt under section 106 of the Act of 1988;

(d)     proceedings whereby the transferor may become the subject of a protection order under section 87 of the Act of 1988 where all or part of the property of the transferor vests (under section 93 of that Act) in the Official Assignee for realisation and distribution;

(e)     proceedings where the transferor may be wound up under section 213(e) of the Act of 1963;

 (3)      Notwithstanding paragraph (1), if the sole or main reason for the institution of bankruptcy or insolvency proceedings in respect of a transferor is the evasion of an employer's legal obligations under these Regulations, the Regulations shall apply to a transfer effected by that transferor.

Representation of employees.

7.          (1)     Where an undertaking, business or part of an undertaking or business the subject of a transfer, preserves its autonomy after the transfer, the status and function of the representatives or of the representation of the employees affected by the transfer shall be preserved by the transferee concerned on the same terms and subject to the same conditions as existed before the date of the transfer as specified in any enactment, or in any agreement between the employer and the employees' representatives.

 (2)      Where an undertaking, business or part of an undertaking or business does not preserve its autonomy, the transferee shall arrange for the employees transferred who were represented before the transfer to choose a person or persons from among their number to represent them (including by means of an election), during the period necessary for the reappointment of the representatives of the employees' or the reconstitution of their representation.

 (3)      If the term of office of the representatives of the employees affected by the transfer expires as a result of the transfer, the former representatives of the employees shall continue to enjoy the protection provided by section 6 (2)(a) of the Unfair Dismissals Act 1977 (No. 10 of 1977) and any other enactment.

Information and consultation.

8.          (1)     The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of -

(a)     the date or proposed date of the transfer;

(b)     the reasons for the transfer;

(c)      the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

and

(d)      any measures envisaged in relation to the employees.

 (2)      The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.

 (3)      The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment.

 (4)      Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement.

 (5)      Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation.

 (6)      Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a)     the date or proposed date of the transfer;

(b)     the reasons for the transfer;

(c)     the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d)     any measures envisaged in relation to the employees.

 (7)      The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.

Agreements.

9.          (1)     A provision in any agreement shall be void in so far as it purports to exclude or limit the application of any provision of these Regulations or is inconsistent with any provision of these Regulations.

 (2)      A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by these Regulations shall be deemed to be modified so as not to be less favourable.

 (3)      Nothing in these Regulations shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision of these Regulations.

Complaints.

10.        (1)     A complaint that an employer has contravened any of these Regulations (other than Regulations 4(4)(a) and 13) in relation to an employee may be presented to a rights commissioner by:

(a)     the employee, or

(b)     a trade union, staff association or excepted body on behalf and with the consent of the employee.

 (2)      A complaint under paragraph (1) shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

 (3)      A copy of a notice under paragraph (2) shall be given to the other party or parties concerned, by the rights commissioner concerned.

 (4)      Where a complaint is presented to a rights commissioner under paragraph (1), the rights commissioner shall -

(a)     give the parties an opportunity to be heard and to present any evidence relevant to the complaint;

(b)     give a decision in writing in relation to the complaint; and

(c)     communicate the decision to the parties.

 (5)      A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

(a)     declare that the complaint is or, as the case may be, is not well founded;

(b)     require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

(c)     require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(i)      in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

(ii)      in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,

in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977 ,

and a reference in this paragraph to an employer shall be construed, in a case where ownership of the relevant undertaking or business, or the part concerned of that undertaking or business, of the employer changes after the contravention to which the complaint relates occurred, as a reference to the person who, by virtue of the change, becomes entitled to such ownership.

 (6)      A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.

 (7)      Proceedings under this Regulation before a rights commissioner shall be conducted otherwise than in public.

 (8)      A rights commissioner shall furnish the Tribunal with a copy of each decision given by the commissioner under paragraph (4).

 (9)      A rights commissioner shall maintain a register of all decisions made by him or her under this Regulation and shall make the register available for inspection by members of the public during normal office hours.

Appeals and enforcement.

11.        (1)      A party concerned may appeal to the Tribunal from a decision of a rights commissioner under Regulation 10, and if the party does so, the Tribunal shall -

(a)     give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

(b)     make a determination in writing in relation to the appeal affirming, varying or setting aside the decision, and

(c)     communicate the determination to the parties.

 (2)      An appeal under this Regulation shall be initiated by the party concerned by a notice in writing to the Tribunal containing such particulars as may have been determined under paragraph (4)(e) and stating the intention of the party concerned to appeal against the decision. Such a notice in writing shall be given within 6 weeks of the date on which the decision to which it relates was communicated to the party or such greater period as the Tribunal may, in accordance with paragraph 4(f), determine in the particular circumstances.

 (3)      A copy of a notice under paragraph (2) shall be given by the Tribunal to the other party or parties concerned as soon as may be after the receipt of the notice by the Tribunal.

 (4)      The following matters, or the procedures to be followed in relation to them shall be determined by the Tribunal namely -

(a)     the procedure in relation to all matters concerning the initiation and the hearing by the Tribunal of appeals under this Regulation;

(b)     the times and places of hearings of such appeals;

(c)     the representation of the parties to such appeals;

(d)     the publication and notification of determinations of the Tribunal;

(e)     the particulars to be contained in a notice under paragraph (2);

(f)     any matters consequential on, or incidental to, the foregoing matters.

12.        (1)     The Minister may, at the request of the Tribunal, refer a question of law arising in proceedings before it under Regulation 11 to the High Court for determination and the determination of the High Court shall be final and conclusive.

 (2)      A party to proceedings before the Tribunal under Regulation 11 may appeal to the High Court from a determination of the Tribunal on a point of law and the determination of the High Court shall be final and conclusive.

13.        (1)     The Tribunal shall, on the hearing of any matter referred to it under this Regulation, have power to take evidence on oath and for that purpose may cause to be administered oaths to persons attending as witnesses at such hearing.

 (2)      Any person who, upon examination on oath authorised by this Regulation wilfully and corruptly makes any statement which is material for that purpose and which he or she knows to be false or does not believe to be true is guilty of an offence and on summary conviction shall be liable to a fine not exceeding €3000 or imprisonment for a term not exceeding 12 months or both.

 (3)      The Tribunal may, by giving notice in that behalf in writing to any person require such person to attend at such time and place as is specified in the notice to give evidence in relation to any matter referred to the Tribunal under this Regulation or to produce any documents in his or her possession, custody or control which relate to any such matter.

 (4)      A notice under paragraph (3) may be given either by delivering it to the person to whom it relates or by sending it by post in a prepaid registered letter addressed to such person at the address at which he or she ordinarily resides.

 (5)      A person to whom a notice under paragraph (3) has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000.

14.        (1)      If an employer fails to carry out in accordance with its terms a decision of a rights commissioner or a determination of the Tribunal under Regulation 10 or 11 within 6 weeks from the date on which the decision or determination is communicated to the parties, the Circuit Court shall, on application to it in that behalf by -

(a)     the employee concerned,

(b)     with the consent of the employee, any trade union of which the employee is a member, or

(c)     the Minister, if the Minister considers it appropriate to make the application having regard to all the circumstances,

without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the decision or the determination in accordance with its terms.

 (2)      The reference in paragraph (1) to a decision of a rights commissioner or to a determination of the Tribunal is a reference to such a decision or determination in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought, or if such an appeal has been brought it has been abandoned and the references to the date on which the decision or the determination is communicated to the parties shall, in a case where such an appeal is abandoned, be construed as a reference to the date of such abandonment.

 (3)      The Circuit Court may, in an order under this Regulation, if in all the circumstances it considers it appropriate to do so, where the order relates to the payment of compensation, direct the employer concerned to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Courts Act 1981 (No. 11 of 1981) in respect of the whole or any part of the period beginning 6 weeks after the date on which the decision of the rights commissioner or the determination of the Tribunal is communicated to the parties and ending on the date of the order.

 (4)      An application under this Regulation to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, trade or business.

Revocations.

15.        The following are revoked:

 (a)     the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations 1980 ( S.I. No. 306 of 1980 ); and

 (b)    the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) (Amendment) Regulations 2000 ( S.I. No. 487 of 2000 ).

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GIVEN under my Official Seal,

11th day of April 2003

MARY HARNEY T.D.,

Minister for Enterprise, Trade and Employment

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

These Regulations protect the rights of employees arising from an employment contract in the event of a transfer of a business or part of a business, in which they are employed, which entails a change of employer. Complaints that an employer has contravened these Regulations may, generally, be referred in the first instance to a rights commissioner and on appeal, to the Employment Appeals Tribunal.

1 OJ No. L. 82 p 16 22.03.2001