Dáil Éireann Debate, Thursday - 4 November 2010
271 Deputy Richard Bruton asked the Minister for Enterprise, Trade and Innovation if the terms of the transfer of undertakings have been fully respected in a case (details supplied); if the existing firms are protected beyond a six month period and if a new company who operates other sites or different terms and conditions is entitled to consolidate operations at the lower terms. [40910/10]
View answerThe current Irish law in the area of "transfer of undertakings" is the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 — Statutory Instrument (S.I.) No. 131 of 2003. The Regulations implement the mandatory (i.e. mandatory to transpose) provisions of EU Council Directive 2001/23/EC of 12 March 2001 which is aimed at safeguarding the rights of employees in the event of a transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer. Also, section 21 of the Employees (Provision of Information and Consultation) Act 2006 transposed a provision of the European Directive relating to the information to be provided by the original employer to the new employer.
The Regulations provide that all the rights and obligations of an employer arising from a contract of employment (including terms inserted by collective agreements) other than pension rights, existing on the date of a transfer, are transferred to the new employer on the transfer of the business or part thereof. Another provision of the Regulations is that both the outgoing and incoming employers are obliged to inform their respective employees' representatives of, inter alia, the date or proposed date of the transfer, the reasons for the transfer and the legal, social and economic implications of the transfer for the employees. Where there are no representatives, employers must arrange for the employees to choose representatives for this purpose.
In accordance with the Transfer of Undertaking Regulations, it would be a matter for a Rights Commissioner to determine in law if any particular case is in compliance with the transfer of undertakings legislation. Thus, the circumstances of each individual case would have to be considered by a Rights Commissioner, in the first instance, in the light of all previous case law, including European Court of Justice case law.
If an employee has a complaint relating to alleged contravention of the Regulations on Transfer of Undertakings, the employee may bring a case, in the first instance, to a Rights Commissioner and, on appeal, to the Employment Appeals Tribunal. Any such case should be taken within six months of the date on which an employee considers that there has been a contravention of the Transfer of Undertakings Regulations
