For the purposes of the Information and Consultation of Employees Regulations 2004 what constitutes a pre-existing agreement?
A pre-existing agreement must have been agreed prior to a valid employee request to negotiate an information and consultation agreement in respect of reg.7 of the Information and Consultation of Employees Regulations 2004 (SI 2004/3426). It must be in writing; cover all the employees in the undertaking; have been approved by the employees; and set out how the employer is to give information to the employees or their representatives and seek their views on the information.
The Regulations do not impose any requirements regarding the method, frequency, timing or subject matter of pre-existing information and consultation arrangements; neither do they provide detail on how employee approval of an agreement can be demonstrated. The government guidance suggests that approval could be demonstrated by a simple ballot of the workforce, a majority of the workforce expressing support by signatures or the agreement of employee representatives who represent a majority of the workforce.
The guidance also suggests that a European Works Council agreement will not be a valid pre-existing agreement as its focus will be on transnational issues.