The Gazette 1984

APRIL. 1984

GAZETTE SUPPLEMENT

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 conviction 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 under the Regulations. English Regulations 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 satisfactory information about the bid, relying on the provisions 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 information 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 Undersecretary, 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 way of 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 Employment Appeals Tribunal on the question of what is or is not a transfer of 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 of 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 provisions 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 works concerned in the contract. This was a new contract and not an uncompleted portion of an existing contract. The company in receivership was not a party to the contract between the Council and the respondents, nor did any consideration pass from the respondents to the company in receivership in respect of any money matter other than the purchase of an earth moving machine from the receiver and the purchase of some other earth moving machines from the Finance Company, which hired the machines originally to the company in receivership. The claimants claimed that they had continuity of service in respect of their employment with the company in receivership and the respondent company. The Tribunal held that the work the subject matter of the contract between Public Works Limited and the County Council did constitute a "business" as defined in Section 2 of the Redundancy Payments Act, 1967. They held further that the company in receivership did not transfer any portion of its business to the respondent and that the respondent 3