Employee (Information and Consultation) Regulations, 2006

L.N. 10 of 2006

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Employee (Information and Consultation) Regulations, 2006

IN exercise of the powers conferred by article 35 of the

Employment and Industrial Relations Act, the Minister of Education,

Youth and Employment has made the following regulations>–

(1) The title of these regulations is the Employee

(Information and Consultation) Regulations, 2006.

(2) These regulations establish a general framework setting

out minimum requirements for the right to information and consultation

of employees in undertakings thereby giving effect to the relevant

provisions of Directive 2002#14#EC of the European Parliament and of

the Council of the 11 th March, 2002.

(3) These regulations shall apply to undertakings

established in Malta and shall enter into force as follows>

(a) for undertakings employing 150 employees and over,

on the date of publication in the Gazette<

(b) for undertakings employing between 100 and 149

employees, on the 23 rd March, 2007< and

(c) for undertakings employing 50 employees and over, on

the 23 rd March, 2008.

(4) These regulations shall not apply to personnel employed

on vessels which fall under the provisions of the Merchant Shipping

Act.

(1) For the purpose of these regulations>

“the Act” means the Employment and Industrial Relations

Act<

“consultation” means the exchange of views and establishment

of dialogue between the employees’ representatives and the

employer<

“information” means transmission by the employer to the

employees’ representatives of data in order to enable them to

acquaint themselves with the subject matter and to examine it<

“Member States” means a member state of the European

Union, or of the European Economic Area<

“undertaking” means a public or private undertaking carrying

out an economic activity, whether or not operating for gain.

(2) Subject to the provisions of sub-regulation (1) of this

regulation, terms and expressions used in these regulations shall, unless

the context otherwise requires, have the meaning assigned to them in

the Act.

(1) The employer shall make the practical arrangements General duty to

inform, consult and

necessary at the appropriate level to allow his employees to effectively co-operate.

exercise the right to information and consultation in accordance with

these regulations through the standard information and consultation

provisions set out in regulation 4.

(2) When defining or implementing practical arrangements

for information and consultation, the employer and the employees’

representatives shall work in a spirit of cooperation and with due regard

for their reciprocal rights and obligations, taking into account the

interests both of the undertaking and of the employees.

(3) The provisions in sub-regulations (1) and (2) hereof are

without prejudice to any written agreement in force on 23 rd March, 2005

which, whilst respecting the minimum requirements set out in these

regulations, is more favourable to employees, provided that>

(a)

the agreement applies to the whole workforce<

(b) the agreement clearly sets out how the employer is to

give information to the employees or their representatives and to

seek their views on such information<

(c)

the agreement has been applied effectively.

(4) Nothing in these regulations shall prevent the employer

and employees from negotiating agreements on the practical

arrangements for informing and consulting employees, provided that

these respect the minimum requirements set out in these regulations.

(1) The employer must provide the information and

consultation representatives with information on –

(a) the recent and probable development of the undertaking’s

activities and economic situation<

(b) the situation, structure and probable development of

employment within the undertaking and on any anticipatory

measures envisaged, in particular, where there is a threat to

employment within the undertaking< and

(c) information and consultation on decisions likely to lead

to substantial changes in work organisation or in contractual

relations, including those covered by the provisions referred to in

regulation 10 sub-regulation (1) hereof.

(2) The information referred to in sub-regulation (1) hereof

must be given at such time, in such fashion and with such content as are

appropriate to enable, in particular, the information and consultation

representatives to conduct an adequate study and, where necessary, to

prepare for consultation.

(3) The employer must consult the information and

consultation representatives on the matters referred to in sub-regulation

(1) paragraphs (b) and (c).

(4) The employer must ensure that the consultation referred

to in sub-regulation (3) is conducted -

(a) in such a way as to ensure that the timing, method and

content of the consultation are appropriate<

(b) on the basis of the information supplied by the employer

to the information and consultation representatives and of any

opinion which those representatives express to the employer<

(c) in such a way as to enable the information and

consultation representatives to meet the employer at the relevant

level of management depending on the subject under discussion

and to obtain a reasoned response from the employer to any such

opinion< and

(d) in relation to matters falling within sub-regulation (1)

paragraph (c), with a view to reaching agreement on decisions

within the scope of the employer’s powers.

(1) The employer shall ensure that information and Appointment or

election of

consultation of employees shall be carried out>

information and

consultation

representatives.

(a) in the case of undertakings where there is one or more

recognized trade union covering all categories of employees, with

the representatives of the recognized trade union or unions<

(b) in the case of undertakings where the recognized trade

union or unions do not represent all categories of employees, with

the representatives of the recognized trade union or unions, together

with the elected or appointed representatives of the workers in the

unrepresented categories>

Provided that in the case of election or appointment of these

representatives, only employees within the unrepresented category

or categories shall be entitled to take part in a secret ballot to select

their representatives>

Provided further that, notwithstanding what is stated in sub-

regulation (2) paragraph (g), if the category or categories of

employees which were previously unrepresented by a recognized

trade union start being represented by a recognized trade union,

the term of office of any representative or representatives elected

or appointed on behalf of such category or categories shall be

automatically terminated on the date of the granting of recognition

of the respective category of employees to the trade union

concerned by the employer<

(c) in the case where there is no recognized trade union,

with the representatives of the employees elected or appointed by

means of a secret ballot from amongst all employees>

Provided that, notwithstanding what is stated in sub-regulation

(2) paragraph (g), if the category or categories of employees which

were previously unrepresented by a recognized trade union start

being represented by a recognized trade union, the term of office

of any representative or representatives elected or appointed on

behalf of such category or categories shall be automatically

terminated on the date of the granting of recognition of the

respective category of employees to the trade union concerned by

the employer.

(2) In the case of a ballot referred to in sub-regulation (1)

paragraphs (b) and (c) for the election of representatives of employees

in categories not represented by a recognized trade union>

(a) the employer shall make such arrangements as are

reasonably practicable to ensure that the ballot is fair< and shall

supply the Director with the procedure to be followed at least one

month before the projected date of the ballot<

(b) all employees employed by the undertaking on the date

of the ballot who are entitled to vote in the ballot are allowed to do

so<

(c) the ballot must be conducted so as to secure that –

(i) so far as is reasonably practicable, those voting do

so in secret< and

(ii) the votes given at the ballot are accurately counted<

(d) any employee who is not in his probationary period on

the date of the holding of the ballot shall be entitled to stand as a

candidate in such a ballot<

(e) in the event that at the end of the period allowed for the

submission of nominations to stand as candidates in such a ballot

only one employee who is entitled to do so stands as a candidate,

such employee shall be considered to be automatically elected and

shall be appointed as an information and consultation representative

from the date of the end of the period set by the employer for the

submission of such nominations<

(f) in the event that no employee in a category submits a

nomination for candidature to take part in a ballot when called to

do so by the employer, the employer shall have the duty to inform

the employees in that category, at three month intervals from the

initial call, of their right to have a representative to be informed

and consulted and to invite them to submit nominations for

candidates to take part in such a ballot within two weeks from the

date of such communication> if nominations are submitted, the

necessary arrangements shall be made to hold such a ballot within

one month from the closing date for nominations<

(g) the number of representatives so appointed or elected

shall be of not more than one representative per unrepresented

category and shall hold office for a period of three years from

their date of election or appointment<

(h) the employer shall take the necessary measures to hold

another ballot in the event of the resignation of an elected or

appointed representative or on the expiry of a representative’s term

of office.

(3) Following the election or appointment of the information

and consultation representatives, the employer shall>

(a) inform the employees in writing of the identity of the

information and consultation representatives< and

(b) hold a first information and consultation meeting within

two months from their date of election or appointment<

(c) hold a minimum of at least one meeting within six

months after the date of each preceding meeting.

(4) The employer shall take all the necessary measures to

ensure, as far as is reasonably practicable, that the first meeting with

the information and consultation representatives shall be held>

(a) in the case of an undertaking which meets the relevant

threshold specified in regulation 1 sub-regulation (3) on the date

of entry into force of these regulations, within nine months from

the relevant date of entry into force of these regulations<

(b) in the case of an undertaking which meets the relevant

threshold specified in regulation 1 sub-regulation (3) after the date

of entry into force of these regulations, within nine months from

the date when the undertaking meets the relevant threshold.

(1) A complaint may be presented to the Director on any

matter related to the

matter related to the appointment or election of the information and

consultation representatives or the holding of the ballot within 21 days

of the date when the alleged infraction occurred and where the Director

finds the complaint well-founded he shall make any order which in his

opinion addresses the situation, including requiring the employer to

arrange for the election or appointment of information and consultation

representatives referred to in regulation 5 again within such period as

that order shall specify as appropriate and any such order shall be final.

(2) The decision of the Director on any matter related to -

(a) the holding of a ballot required to be held under these

regulations< and

(b) the representation of employees in a category or

categories of employees not represented by a recognized trade

union, as referred to in regulation 5 (1) paragraphs (b) and (c),shall

be complied with within any timeframe which may be so specified

by the Director and any such decision shall be final.

(1) A person to whom the employer, pursuant to his

obligations under these regulations, entrusts any information or

document on terms requiring it to be held in confidence shall not disclose

that information or document except in accordance with those terms.

(2) In this regulation a person referred to in sub-regulation

(1) to whom information or a document is entrusted is referred to as a

“recipient”.

(3) The obligation to comply with sub-regulation (1) is a

duty owed to the employer and a breach of the duty is actionable

accordingly.

(4) A recipient whom the employer has entrusted with any

information or document on terms requiring it to be held in confidence

may refer the dispute to the Industrial Tribunal for a declaration as to

whether it was reasonable for the employer to require the recipient to

hold the information or document in confidence.

(5) If the Industrial Tribunal considers that the disclosure

of the information or the document by the recipient would not, or would

not be likely to, prejudice or cause serious harm to the undertaking, it

shall make a declaration that it was not reasonable for the employer to

require the recipient to hold the information or document in confidence.

(6) If a declaration is made under sub-regulation (5), the

information or document shall not at any time thereafter be regarded as

having been entrusted to the recipient who made the application under

paragraph (4), or to any other recipient, on terms requiring it to be held

in confidence.

(7) The employer is not required to disclose any information

or document to a recipient when the nature of the information or

document is such that, according to objective criteria, the disclosure of

the information or document would seriously harm the functioning of,

or would be prejudicial to the undertaking.

(8) Where there is a dispute between the employer and a

recipient as to whether the nature of the information or document which

the employer has failed to provide is such as is described in sub-

regulation (7), the employer or a recipient may apply to the Industrial

Tribunal for a declaration as to whether the information or document is

of such a nature.

(9) If the Industrial Tribunal makes a declaration that the

disclosure of the information or document in question would not,

according to objective criteria, seriously harm the functioning of, or be

prejudicial to the employer, the Industrial Tribunal shall order the

employer to disclose the information or document, and the order shall

specify>

(a)

the information or document to be disclosed<

(b) the recipient or recipients to whom the information or

document is to be disclosed<

(c) any terms on which the information or document is to

be disclosed< and

(d) the date before which the information or document is to

be disclosed.

(1) An employee who is an information and consultation

representative, shall enjoy the same protection and guarantees provided

for employees’ representative in the Act in the exercise of his functions.

(2) The protection and guarantees referred to in sub-

regulation (1) shall apply in particular to attendance at meetings and to

the entitlement to be permitted to such employee by his employer to

take reasonable time off with pay during his working hours in order to

perform his functions as such a representative.

(1) An information and consultation representative or a

candidate in an election in which any person elected will, on being

elected, be such a representative shall have the right not to suffer any

detriment, including dismissal by any act or deliberate failure to act by

the employer, if the reason (or, if more than one, the principal reason)

for this is that -

(a) the employee performed any functions or activities as

such a representative or candidate<

Provided that this shall not apply if the employee disclosed

any information or document in breach of the duty in regulation 7<

(b) the employee or a person acting on his behalf made a

request to exercise an entitlement conferred on the employee by

regulation 8 or proposed to do so<

(2) The reason in sub-regulation (1) paragraph (a) does not

apply where the reason (or principal reason) for the subjection to

detriment, including dismissal, is that in the performance, or purported

performance, of the employee’s functions or activities, he has disclosed

any information or document in breach of the duty in regulation 7.

(3) Any employee, whether or not he is an employee to

whom sub-regulation (1) applies, shall have the right not to suffer any

detriment including dismissal by any act or deliberate failure to act by

the employer, if the reason (or, if more than one, the principal reason)

for this is one or more of the reasons is that the employee -

(a) took, or proposed to take, any proceedings before the

Industrial Tribunal to enforce a right or secure an entitlement

conferred on him by these regulations<

(b) exercised, or proposed to exercise, any entitlement to

apply or complain to the Director or the Industrial Tribunal

conferred by these regulations<

(c) stood as a candidate in an election in which any person

elected would, on being elected, be an information and consultation

representative<

(d) influenced or sought to influence by lawful means the

way in which votes were to be cast by other employees in a ballot

arranged under these regulations<

(e)

voted in such a ballot<

(f) expressed doubts, as to whether such a ballot had been

properly conducted< or

(g) proposed to do, failed to do, or proposed to decline to

do, any of the things mentioned in paragraphs (d) to (g).

(4) In the case of a dismissal for such reasons as referred to in

sub-regulations (1) and (3), this shall constitute an unfair dismissal.

(5) It is immaterial for the purpose of sub-regulation (3)

paragraph (a) –

(a)

whether or not the employee has the right< or

(b) whether or not the right has been infringed< but for that

paragraph to apply, the claim to the right and, if applicable, the

claim that it has been infringed must be made in good faith.

(6) An employee may present a complaint to the Industrial

Tribunal that he has been subjected to a detriment in contravention of

this regulation.

(1) These regulations shall be without prejudice to the

specific information and consultation procedures set out in>

(a) regulations 4 to 8 of the Collective Redundancies

(Protection of Employment) Regulations, 2002< and

(b) regulations 6 and 8 of Transfer of Business, (Protection

of Employment) Regulations, 2002.

(2) These regulations shall be without prejudice to

provisions adopted in accordance with the European Works Councils

Regulations, 2004.

(3) These regulations shall be without prejudice to other

rights to information, consultation and participation under any other

(4) Implementation of these Regulations shall not be

sufficient grounds for any regression in relation to the situation which

already prevails on the date of entry into force of these Regulations and

in relation to the general level of protection of workers in the areas to

which it applies.

Any person who fails to comply with any obligation imposed Enforcement.

under these regulations shall be guilty of an offence and shall, on

conviction, be liable>-

(a) to a fine (multa) of not less than ten liri and not more

than fifty liri for every employee of the undertaking in relation to

a failure by the employer to>

(i) to set up an information and consultation procedure

in accordance with regulation 11<

(ii) to omit to do anything which he is under an

obligation to do under these regulations< and

(b) in relation to any other offence, a fine (multa) of not

less than five hundred liri and not more than five thousand liri.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press