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COUNTRY OVERVIEW

Employees are represented on the boards of some publicly-owned companies in Ireland – but have no right to board-level representation in the private sector. Both unions and employers were consulted on how the directive was to be implemented in Ireland – but there was no wider public debate.

For further information on the SE legislation, such as the choice of SNB members, click on the more button.

There is no statutory requirement for board level representation in the private sector. However, some parts of the public sector are covered by legislation which gives employee representatives a right to seats on the board, although privatisation means that the number of companies with employees at board level has fallen. Where employees are represented, they normally have one third of the seats.

Unions, employers’ associations and the enterprise agencies in Ireland (which give support to companies and business) were all consulted on the draft text implementing the directive and submitted a number of detailed comments. However, there was no wider public debate on the issue.

Form of transposition

Directive was implemented through legislation in December 2006, more than two years after the October 2004 deadline.

The directive on employee involvement in European companies was implemented in Ireland by a statutory instrument (legislation laid before the Irish parliament) dated 14 December 2006 and published in the official journal on 19 December 2006. The title of the legislation is European Communities (European Public Limited-Liability Company) (Employee Involvement) Regulations 2006, SI No. 623 of 2006. Ireland was the last of the EU members to transpose the directive, other than Romania, which only joined the EU on 1 January 2007.

Changes adapting Irish company law to take account of the Regulation on European companies were made through two separate statutory instruments laid before the Irish parliament in January 2007.

Special negotiating body (SNB)

Selection of national members

Irish members of the SNB are elected by the employees.

Irish SNB members are elected or appointed by the employees of the participating companies (Regulation 5). Where there is an election, the Irish legislation states that it is the responsibility of the management of the participating companies (“competent organs” in the wording of the legislation) to “arrange for the conducting of those elections”. There are also more detailed provisions which cover issues such as who is able to nominate, who can stand, who can vote and the appointment of a “returning officer” (the individual organising the election, who is obliged to conduct it fairly) (Regulations 6 and 7).

However, it is also possible for SNB members to be “appointed” by the employees. The legislation is less precise as to how this should be done, stating only that appointed means that there is no election and that the “basis on which that appointment is made may … be such as is agreed by them [the employees] with the participating companies” (Regulation 2).

Where there is an election, candidate must be nominated either by a union or an “excepted body” which the employer already “recognises” – negotiates with – or at least two employees. (An “excepted body” is defined in Irish law as an organisation, whose members are all employed by the same employer, which negotiates on their behalf but does not have union status.) To stand as a candidate, an employee must have been employed for at least a year; trade union officials and officials of “excepted bodies” may also stand (see section on external trade union representatives) (Regulation 6).

External trade union representatives

External union representatives in Ireland can be appointed to the SNB.

The Irish legislation states clearly that trade union officials or officials of “an excepted body” can be members of the SNB “whether or not he or she is an employee” (An “excepted body” is defined in Irish law as an organisation, whose members are all employed by the same employer, which negotiates on their behalf but does not have union status.) (Regulation 6)

Financing of experts

Funding not limited to a single expert.

The Irish legislation on funding does not limit funding to a single expert. It simply states that the SNB may “engage experts of its choice to assist with its work” (Regulation 10) and the “reasonable expenses relating to the functioning of the special negotiating body … shall be borne by the participating companies” (Regulation 12)

Standard rules under the fallback procedure

Allocation of national seats on SE representative body

There is nothing in the legislation dealing specifically with SE representative body members from Ireland. Overall they are to be chosen by employee representatives or, if there are none, by the employees themselves, and the mechanism for doing so is decided on by the SNB.

The legislation does not include any rules setting out how Irish members of the SE representative body, known simply as the representative body in the text, should be chosen under the fallback procedure. The regulations deal only with the overall composition of the representative body, stating that it should be made up of employees of the SE – in contrast to the SNB, external trade union or other officials cannot be members – and that it should be “elected or appointed by the employees’ representatives or, in the absence thereof, by the entire body of employees. The way that the members of the representative body are to be elected or appointed is to be “agreed by the special negotiating body” (Schedule 1, Part 1).

Budget of representative body

The company should bear the reasonable costs of the representative body, and there are no limits on the number of experts.

The company is obliged to cover the “reasonable costs” of the representative body to enable its members “to perform their duties in an appropriate manner”. There is no specific mention of the costs of experts in the legislation but the text states that “the representative body or the select committee may be assisted by experts of its choice”, which clearly indicates that their reasonable costs would be covered (Schedule 1, Part 2).

National procedure for the allocation of board seats

Irish employee representatives at board level are chosen by the Irish representative body members from amongst themselves.

The legislation leaves the choice of Irish board-level employee representatives in the hands of the Irish members of the representative body. However, they can only choose from among themselves (Schedule 1, Part 3).

Misuse of procedures and structural change

Misuse of procedures

Employees or their representatives can take a suspected misuse of procedures to the Irish Labour Court, although they must try to resolve the problem in some other way beforehand.

The Irish legislation deals with the possibility that “the SE is being or will be misused for the purpose of depriving employees of their rights to employee involvement or of withholding those rights” by allowing employees or their representatives – or both – to make a complaint if they consider that this has happened. The complaint goes to the Labour Court in Ireland, which has powers to investigate the case and make first a recommendation to the parties, and if that is not accepted, a decision – a “determination” in the words of the legislation – on the action to be taken. It is possible to appeal against this determination in the High Court.

However, before a dispute can be taken to the Labour Court, those making the complaint must first use the company’s internal dispute resolution procedure, if there is one, and then attempt to resolve the problem through the Labour Relations Commission, an official conciliation body. Only when the Labour Relations Commission states that it is unable to do any more to resolve the dispute can it go to the Labour Court (Regulation 20).

Structural change

There is no requirement in the Irish legislation to renegotiate the agreement if there has been structural change, although if it can be shown that the change represents a misuse of the procedures a complaint can be made to the court.

There is nothing in the legislation that specifically requires the agreement to be renegotiated if there are structural changes after the SE has been set up. However, if the employees or their representatives can show that such changes represent a misuse of procedures, they can take their case to the Labour Court (see section on misuse of procedures).

Position of trade unions and employers

Both unions and employers were consulted on the legislation implementing the directive and made detailed technical comments. The unions expressed their satisfaction with the fact that the legislation had been introduced in Ireland, the employers appear to be more cautious.

The government consulted with both unions and the employers on the legislation implementing the directive with both sides submitting detailed comments. The final outcome appears to have satisfied the unions. The Irish union confederation ICTU stated that it had “secured improvements to the legislation” which it described as “giving rise to new rights” and providing “opportunities for Irish trade unions”. The Irish employers’ association IBEC is generally very wary of extended powers for employee representatives, preferring direct communication with the workforce.

L. Fulton (2008) Anchoring the European Company in National Law - Country Overviews (online publication, prepared for worker-participation.eu)

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