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The European Cooperative Society (Involvement of Employees) Regulations 2006

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PART 3ELECTION OR APPOINTMENT OF UK MEMBERS OF THE SPECIAL NEGOTIATING BODY

Ballot arrangements

12.  (1)  Subject to regulation 14, the UK members of the special negotiating body shall be elected by balloting the UK employees.

(2) The participating individuals and the participating legal entities that employ UK employees (“the relevant employers”) must arrange for the holding of a ballot or ballots of those employees in accordance with the requirements of paragraph (3), and having regard to the fact that the methods of election should seek to promote gender balance.

(3) The requirements referred to in paragraph (2) are—

(a)in relation to the election of ordinary members under regulation 10(2), that—

(i)if the number of members which UK employees are entitled to elect to the special negotiating body is equal to the number of relevant employers, there shall be separate ballots of the UK employees of each relevant employer;

(ii)if the number of members which the UK employees are entitled to elect to the special negotiating body is greater than the number of relevant employers, there shall be separate ballots of the UK employees of each relevant employer and the relevant employers shall ensure, as far as practicable, that at least one member representing the UK employees of each such relevant employer is elected to the special negotiating body and that the number of members representing the UK employees of that employer is proportionate to the number of employees of that employer;

(iii)if the number of members which the UK employees are entitled to elect to the special negotiating body is smaller than the number of relevant employers—

(aa)the number of ballots held shall be equivalent to the number of members to be elected;

(bb)a separate ballot shall be held in respect of each of the relevant employers with the higher or highest number of employees; and

(cc)it shall be ensured that any employees of a relevant employer in respect of which a ballot does not have to be held are entitled to vote in a ballot held in respect of one of the other relevant employers; and

(iv)if there are any UK employees employed by a concerned subsidiary or at a concerned establishment of non-UK participating legal entities, or non-UK participating individuals, the relevant employers shall ensure that those employees are entitled to vote in a ballot held pursuant to this regulation;

(b)that in relation to the ballot of additional members under regulation 10(3), that a separate ballot is held in respect of the employees of each relevant employer entitled to elect an additional member.

(c)that in a ballot in respect of the employees of a particular relevant employer, all UK employees employed by that employer or by such employer’s concerned subsidiaries or at its concerned establishments are entitled to vote;

(d)that in a ballot in respect of the employees of a particular relevant employer, any person who is immediately before the latest time at which a person may become a candidate—

(i)a UK employee employed by that employer or by any of such employer’s concerned subsidiaries or at any of its concerned establishments; or

(ii)if the relevant employer so permits, a representative of a trade union who is not an employee of that employer or any of such employer’s concerned subsidiaries,

is entitled to stand as a candidate for election as a member of the special negotiating body in that ballot;

(e)that the relevant employers appoint an independent ballot supervisor to supervise the conduct of the ballot of UK employees except that, where there is to be more than one ballot, the relevant employers may appoint more than one independent ballot supervisor, each of whom is to supervise such of the separate ballots as the relevant employers may determine, provided that each separate ballot is supervised by a supervisor;

(f)that after the relevant employers have formulated proposals as to the arrangements for the ballot of UK employees and before they have published the final arrangements under sub-paragraph (g) they must, so far as reasonably practicable, consult with the UK employees' representatives on the proposed arrangements for the ballot of UK employees; and

(g)that the relevant employers must publish the final arrangements for the ballot of UK employees in such manner as to bring them to the attention of, so far as reasonably practicable, all UK employees and the UK employees' representatives.

(4) Any UK employee or UK employees' representative who believes that the arrangements for the ballot of the UK employees do not comply with the requirements of paragraph (3) may, within a period of 21 days beginning on the date on which the final arrangements were published under sub-paragraph (g), present a complaint to the CAC.

(5) Where the CAC finds the complaint well-founded it shall make a declaration to that effect and may make an order requiring the relevant employers to modify the arrangements they have made for the ballot of UK employees or to satisfy the requirements in sub-paragraph (f) or (g) of paragraph (3).

(6) An order under paragraph (5) shall specify the modifications to the arrangements which the relevant employers are required to make and the requirements they must satisfy.

(7) A person is an independent ballot supervisor for the purposes of paragraph (3)(e) if the relevant employers reasonably believe that he will carry out any functions conferred on him in relation to the ballot competently and have no reasonable grounds for believing that his independence in relation to the ballot might reasonably be called into question.

Conduct of the ballot

13.  (1)  The relevant employers must—

(a)ensure that a ballot supervisor appointed under regulation 12(3)(e) carries out his functions under this regulation and that there is no interference with his carrying out of those functions from the relevant employers; and

(b)comply with all reasonable requests made by a ballot supervisor for the purposes of, or in connection with, the carrying out of those functions.

(2) A ballot supervisor’s appointment shall require that he—

(a)supervises the conduct of the ballot, or the separate ballots he is being appointed to supervise, in accordance with the arrangements for the ballot of UK employees published by the relevant employers under regulation 12(3)(g) or, where appropriate, in accordance with the arrangements as required to be modified by an order made as a result of a complaint presented under regulation 12(4);

(b)does not conduct the ballot or any of the separate ballots before the relevant employers have satisfied the requirement specified in regulation 12(3)(g) and—

(i)where no complaint has been presented under regulation 12(4), before the expiry of a period of 21 days beginning on the date on which the relevant employers published their arrangements under regulation 12(3)(g); or

(ii)where a complaint has been presented under regulation 12(4), before the complaint has been determined and, where appropriate, the arrangements have been modified as required by an order made as a result of that complaint;

(c)conducts the ballot, or each separate ballot, so as to secure that—

(i)so far as reasonably practicable, those entitled to vote are given the opportunity to vote;

(ii)so far as reasonably practicable, those entitled to stand as candidates are given the opportunity to stand;

(iii)so far as reasonably practicable, those voting are able to do so in secret; and

(iv)the votes given in the ballot are fairly and accurately counted.

(3) As soon as reasonably practicable after the holding of the ballot, the ballot supervisor must publish the results of the ballot in such manner as to make them available to the relevant employers and, so far as reasonably practicable, the UK employees entitled to vote in the ballot and the persons who stood as candidates.

(4) A ballot supervisor shall publish a report (“an ineffective ballot report”) where he considers (whether on the basis of representations made to him by another person or otherwise) that—

(a)any of the requirements referred to in paragraph (2) was not satisfied with the result that the outcome of the ballot would have been different; or

(b)there was an interference with the carrying out of his functions or a failure by the relevant employers to comply with all reasonable requests made by him with the result that he was unable to form a proper judgement as to whether each of the requirements referred to in paragraph (2) was satisfied in the ballot.

(5) Where a ballot supervisor publishes an ineffective ballot report the report must be published within a period of one month commencing on the date on which the ballot supervisor publishes the results of the ballot under paragraph (3).

(6) A ballot supervisor shall publish an ineffective ballot report in such manner as to make it available to the relevant employers and, so far as reasonably practicable, the UK employees entitled to vote in the ballot and the persons who stood as candidates in the ballot.

(7) Where a ballot supervisor publishes an ineffective ballot report then—

(a)if there has been a single ballot or an ineffective ballot report has been published in respect of every separate ballot, the outcome of the ballot or ballots shall have no effect and the relevant employers shall again be under the obligation in regulation 12(2).

(b)If there have been separate ballots and sub-paragraph (a) does not apply—

(i)the relevant employers shall arrange for the separate ballot or ballots in respect of which an ineffective ballot report was published to be re-held in accordance with regulation 12 and this regulation; and

(ii)no such ballot shall have effect until it has been re-held and no ineffective ballot report has been published in respect of it within the period specified in paragraph 5.

(8) All costs relating to the holding of a ballot, including payments made to a ballot supervisor for supervising the conduct of the ballot, shall be borne by the relevant employers (whether or not an ineffective ballot report has been published).

Appointment of UK members by a consultative committee

14.  (1)  This regulation applies where—

(a)regulation 12(3)(a)(i) or (ii) or (b) would require a ballot to be held; and

(b)there exists in relation to the participating individual or the participating legal entity whose employees would otherwise need to be balloted under regulation 12, a consultative committee.

(2) (a) Where this regulation applies, the election provided for in regulation 12 shall not take place but the consultative committee shall be entitled to appoint the UK member or members of the special negotiating body who would otherwise be elected pursuant to regulation 12, where appropriate having regard to the fact that the method used should seek to promote gender balance.

(b)The consultative committee is entitled to appoint as a member of the special negotiating body:

(i)one of their number; or

(ii)if the participating individual or the participating legal entity in respect of which the consultative committee exists so permits, a trade union representative who is not an employee of that participating individual or that participating legal entity.

(3) In this regulation, “a consultative committee” means a body of persons—

(a)whose normal functions include or comprise the carrying out of an information and consultation function;

(b)which is able to carry out its information and consultation function without interference from the participating individual or the participating legal entity;

(c)which, in carrying out its information and consultation function, represents all the employees of the participating individual or the participating legal entity; and

(d)which consists wholly of persons who are employees of the participating individual or the participating legal entity or such participating legal entity’s concerned subsidiaries.

(4) In paragraph (3) “information and consultation function” means the function of—

(a)receiving, on behalf of all the employees of the participating individual or the participating legal entity, information which may significantly affect the interests of the employees of that participating individual or participating legal entity, but excluding information which is relevant only to a specific aspect of the interests of the employees, such as health and safety, collective redundancies or pension schemes; and

(b)being consulted by the participating individual or the participating legal entity on the information referred to in sub-paragraph (a) above.

(5) The consultative committee must publish the names of the persons whom it has appointed to be members of the special negotiating body in such a manner as to bring them to the attention of the participating individual or the participating legal entity and, so far as reasonably practicable, the employees and the employees' representatives of that participating individual or participating legal entity and such participating entity’s concerned subsidiaries.

(6) Where the participating individual, the participating legal entity, an employee or an employees' representative believes that—

(a)the consultative committee does not satisfy the requirements in paragraph (3) above; or

(b)any of the persons appointed by the consultative committee is not entitled to be appointed,

he, or as the case may be, it, may, within a period of 21 days beginning on the date on which the consultative committee published under paragraph (5) the names of the persons appointed, present a complaint to the CAC.

(7) Where the CAC finds the complaint well-founded it shall make a declaration to that effect.

(8) Where the CAC has made a declaration under paragraph (7)—

(a)no appointment made by the consultative committee shall have effect; and

(b)the members of the special negotiating body shall be elected by a ballot of the employees in accordance with regulation 12.

(9) Where the consultative committee appoints any person to be a member of the special negotiating body, that appointment shall have effect—

(a)where no complaint has been presented under paragraph (6), after the expiry of a period of 21 days beginning on the date on which the consultative committee published under paragraph (5) the names of the persons nominated; or

(b)where a complaint has been presented under paragraph (6), as from the day on which the complaint has been determined without a declaration under paragraph (7) being made.

Representation of employees

15.  (1)  Subject to paragraphs (2) and (3) below, a member elected in a ballot in accordance with regulation 10(2), shall be treated as representing the employees for the time being of the participating individual or of the participating legal entity, and of any concerned subsidiary or concerned establishment, whose employees were entitled to vote in the ballot in which he was elected.

(2) If an additional member is elected in accordance with regulation 10(3) and (4), he, and not any member elected in accordance with regulation 10(2), shall be treated as representing the employees for the time being of the participating individual or the participating legal entity, and of any concerned subsidiary or concerned establishment, whose employees were entitled to vote in the ballot in which he was elected.

(3) When a member of the special negotiating body is appointed by a consultative committee in accordance with regulation 14, the employees whom the consultative committee represents and the UK employees of any concerned subsidiary shall be treated as being represented by the member so appointed.

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