The Gazette 1983

GAZETTE

JULY/AUGUST

198

visions of the regulations. The companies were informed that the ASTMS would, if necessary, apply for an injunction to have the take-over blocked if such informa- tion was not forthcoming. ASTMS suspected that Burmah intended to sell off large portions of Croda's business which would, of course, affect their members and they maintained that under the new regulations they had the right to know what Burmah's plans were. The Sunday Times described the regulations as "an obscure new employment law". As it turned out, the take- over bid did not go ahead and nothing more was heard of the ASTMS threat. Considerable controversy surrounded the enactment of the regulations in the U.K., as it appears that few politicians appreciated the extent and effect of the regulations. The Conservative party were apparently against the enactment of the regulations, but Parliament was powerless as they were required by E.E.C. law to enforce the Directive. The regulations were passed by Parliament at a midnight session with only six Tory backbenchers at the Commons debate. Answering a question in Parliament subsequent to the enactment of the regulations, the Employment Under Secretary, David Waddington, stated that he did not expect the law to have a significant effect on business take-overs, because most transfers in the U.K. are by wa> if share transactions. Irish EAT Cases As stated previously, existing employment protection legislation in certain situations guarantees continuity of employment in the event of a transfer of a business. There have, to date, been a number of cases before the Employ- ment Appeals Tribunal on the question of what is or is not a business and these presumably will be of considerable assistance, should the interpretation of the Acquired Rights Regulations be at issue. In the case of Cunningham v. Tracey Enterprises (Dundrum) Ltd. , Case no. 133/80, the claimant was employed by Company A in a yard off the Naas Road. Company A moved their business out of the yard and permission was given to Company B to move into the yard temporarily. The claimant did not move with Company A, but stayed in the yard and worked with Company B until they moved out of the yard some months later. The claimant was offered a job with Company B in County Wicklow but declined the offer. The claimant claimed a redundancy payment from Company B. The Tribunal held that as Company B did not take-over any goodwill or purchase any assets of Company A and as the businesses were totally different, the only connection being the use of the yard temporarily with no assignment or conveyance of title or interest, together with the use of certain machinery left behind by Company A, there was no transfer of a business as defined by the various pro- visions of the Redundancy Payments Acts, being Section 20 of the 1967 Act, as amended by Section 5 of the 1971 Act and paragraph 6 of Schedule 3 of the 1967 Act, as amended by the Schedule to the 1971 Act. In O'Shea, O'Sullivan & Cotter v. Mclnerney Civil Engineering Limited, Case nos. 627, 629 and 639/1980, the claimants were employed by Public Works Limited in the carrying out of a contract with Cork County Council at Bantry. A receiver was appointed to manage the affairs of the company and it could not fulfil its obligations under the contract with the County Council. The Council then negotiated with the respondents for completion of the 131

relief to prevent the transfer being effected until the transferor and transferee have complied with this regulation. The Regulation further requires that this information shall be given by the transferor in good time before the transfer is carried out and by the transferee "in good time" and, in any event, before the employees are directly affected by the transfer. There is further requirement that if the transferor or transferee "envisage measures in relation to the employees" they shall consult in good time on such measures with a view to seeking agreement.In the event of there not being employee representatives, it is a requirement of the Regulation that a statement in writing containing the required information be given to individual employees and that notices containing these particulars be displayed prominently at positions in the work-place of employees, where they can be read conveniently by the employees. Regulation 8 empowers an Officer of the Minister, where he is of the opinion that a transaction constitutes a transfer, to request such information as he may reasonably require and to inspect such books and documents as he specifies. The parties to the transfer are obliged to furnish such information and to make available for inspection any books or documents as may be required and to permit the officer to inspect, copy and take extracts from such books and documents. The Regulations further empower the Minister's officer, at all reasonable times, to enter any place where there are kept books or documents to which a request by him relates. The Minister's officer is empowered to act under this regulation by way of a certificate issued by the Minister, such certificate to be produced on request to any person affected. Regulation 9 provides that a person who contravenes any provisions of the regulations, other than regulation 8, shall be guilty of an offence and liable on summary convic- tion to a fine not exceeding £500. A person who contravenes regulation 8 shall be liable on summary conviction to a fine not exceeding £300. Proceedings for any offence under the Regulations may be instituted within 12 months from the date of the offence. Regulation 10 provides that where an offence is committed by a body corporate or a person purporting to act on behalf of a body corporate or an un-incorporated body or person and the offence is proved to have been committed with the consent or approval of, or to have been facilitated by any neglect on the part of any person who is a director, member of the committee of management or other controlling authority of the body concerned, or the manager, secretary or other officer of the body at the time the offence was committed, shall also be deemed to have committed the offence and may be proceeded against As can be seen from the foregoing, the Regulations are going to cause problems in their interpretation. In the U.K., the enabling legislation for the implementation of the Acquired Rights Directive is the Transfer of Under- takings (Protection of Employment) Regulations 1981, which came into force on 1st February 1981. The Sunday Times of 31st January 1982 reported on a possible take- over by Burmah Oil of Croda International. Clive Jenkins, of the ASTMS, on hearing of the potential take-over, contacted the chairmen of both companies seeking satis- factory information about the bid, relying on the pro- under the Regulations. English Regulations