EMPLOYEE (INFORMATION AND CONSULTATION) REGULATIONS

SUBSIDIARY LEGISLATION 452.96

EMPLOYEE (INFORMATION AND

CONSULTATION) REGULATIONS

13th January, 2006;

23rd March, 2007;

23rd March, 2008

LEGAL NOTICE 10 of 2006, as amended by Legal Notice 427 of 2007,

and 284 of 2017.

(1) The title of these regulations is the Employee

(Information and Consultation) Regulations.

(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 11th 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 23rd March, 2007; and

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

the 23rd March, 2008.

(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;

"inform ation" means transm ission 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 subregulation (1), 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

necessary at the appropriate level to allow his employees to

effectively exercise the right to information and consultation in

accordance with these regulations through the standard information

*13th January, 2006.

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 subregulations (1) and (2) are without

prejudice to any written agreement in force on 23rd 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(1).

(2) The information referred to in subregulation (1) must be

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

a p p r o p r i a t e t o e n a b l e , i n p a r t i c u l a r, t h e i n f o r m a t i o n a n d

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)(b) and (c).

(4) The employer must ensure that the consultation referred to

in subregulation (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 subregulation

(1)(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

consultation of employees shall be carried out

(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

subregulation (2)(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)(g), if the category or categories of

employees whichwere 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

EMPLOYEE (INFORMATION AND CONSULTATION)

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)(b)

a n d ( c) for the electi on of representatives o f 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(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(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 appointment or election of the information and

consultation representatives or the holding of the ballot within

twenty-one 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)(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 subregulation (1)

to whom information or a document is entrusted is referred to as a

"recipient".

(3) The obligation to comply with subregulation (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 subregulation (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 subregulation (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

d o c u m e n t is s u c h th a t , a c c o r d i n g t o o b je cti v e cr it er i a , th e

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

subregulation (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 subregulation

(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 subregulation (1)(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

subregulation (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

subregulations (1) and (3), this shall constitute an unfair dismissal.

(5)

It is immaterial for the purpose of subregulation (3)(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; and

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

(Protection of Employment) Regulations.

(2) These regulations shall be without prejudice to provisions

a d o p t ed i n ac c o r d a n c e w i t h t h e Eu r o p e a n Wo r k s C o u n c i l s

Regulations.

(3) These regulations shall be without prejudice to other rights

to information, consultation and participation under any other law.

(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 under these regulations shall be guilty of an offence and

shall, on conviction, be liable -

(a) to a fine (multa) of not less than twenty-three euro and

twenty-nine cents (23.29) and not more than one

hundred and sixteen euro and forty-seven cents

(116.47) for every employee of the undertaking in

relation to a failure by the employer to

(i)

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 one thousand and one hundred and sixty-four

euro and sixty-nine cents (1,164.69) and not more than

eleven thousand and six hundred and forty-six euro

and eighty-seven cents (11,646.87).