MR J STEWART v THE MORAY COUNCIL [2006] UKEAT 0143_06_2004

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0143_06_2004

Case No Appeal No. UKEAT/0143/06/LA UKEAT/0144/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR J STEWARTAPPELLANT

THE MORAY COUNCILRESPONDENT

AND THE MORAY COUNCILAPPELLANT

MR J STEWARTRESPONDENT

Before

Mr Justice Elias

Date 20 April 2006

[1]APPEARANCES For The Moray Council MR BRIAN NAPIER QC of Counsel Instructed by: The Moray Council Council Offices High Street ELGIN IV30 1BX For Mr J Stewart IN PERSON SUMMARY This appeal raises questions about the proper construction of regulation 8 of the Information and Consultation of Employees Regulations 2004. In particular, the judgment considers how, in a situation where the employees consist of both trade unionists and non-unionists, the CAC should approach the questions whether a pre-existing agreement or agreements cover all the employees within the meaning of regulation 8(1)(b); whether they have the approval of the employees within the meaning of regulation 8(1) (c); and whether they provide the details required by regulation 8(1)(d). THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT): The context. The Information and Consultation of Employees Regulations 2004 impose obligations on employers of large workforces to put in place arrangements to ensure that employees are informed and consulted on a wide range of business, employment and restructuring issues. The Regulations are intended to give effect to European Directive 2002-13-EC which established a general framework for informing and consulting employees in the European Union. The Regulations came into force on 6 April 2005.

[2]The Regulations set out a complex structure for securing the rights conferred on the employees. The employer is not under an automatic duty to set up or reach an agreement on information and consultation arrangements. The employer may initiate a negotiating process even in the absence of any interest shown by the employees, but is only obliged to do so if there is a request by at least 10% of the employees in an undertaking (subject to a minimum of 15 employees and a maximum of 2500): reg.7. Once that request is made, the employer must undertake negotiations to seek to reach an agreement on information and consultation arrangements pursuant to reg. 14, unless he seeks to challenge the validity of the request under reg. 13 or to test support for the request under reg.8.

[3]The Regulations set out in terms how the employer is to conduct the negotiations to establish such an agreement (regs. 14 and 15), and they also identify the conditions which any such agreement must meet (reg.16). In the absence of an agreement successfully being negotiated, there is a default position, what is termed in the Regulations the "standard information and consultation provisions" (reg.18). This involves the employer informing or consulting elected employee information and consultation representatives (reg.20).

[4]However, the Government's intention was that these Regulations should permit a certain amount of flexibility in the way in which the arrangements were made, and to support agreements voluntarily established. To that end, it is provided in regulation 8 that where at the date of a request there are already agreements in place (termed "pre existing agreements") which meet certain minimum standards identified in the Regulations, then the employer is not automatically required to undertake negotiations to reach an information and consultation agreement merely at the request of 10% of the employees. That obligation arises only if 40% of the employees request that such negotiations should take place. In circumstances where the relevant pre-existing agreements are in place, the employer, if requested by employees constituting between 10% and 40% of the employees in the workforce, may – not must – hold a ballot in which the employees are given the opportunity to say whether they support the request for a negotiated agreement to me made. If in that ballot the request for a negotiated agreement is supported by at least 40% of the employees and by a majority of those voting, then the employer must take appropriate steps to seek to enter into the negotiated agreement. But if not, then he is entitled to continue to operate the pre-existing agreements and to give effect to the objectives of the Directive in that way.

[5]In this case a percentage of employees between 10 and 40% did make a request for a negotiated agreement and the Council wished to hold a ballot to determine whether or not there was sufficient support among the workforce to require it to seek to make a negotiated agreement. The pre-condition for that, as we have indicated, is that the pre-existing agreements have to meet certain requirements. The Council alleged that they did, but Mr Stewart submitted that they did not. The procedure for determining that conflict is for the employee to make a complaint to the Central Arbitration Committee "CAC" under reg.10. It is then for that Committee to determine the whether the relevant conditions have been satisfied or not. There is an appeal from the CAC on a point of law to the Employment Appeal Tribunal pursuant to section 21 of the Employment Tribunals Act 1996.

[6]In this case the CAC held that one of the relevant preconditions had not been satisfied; the Council has appealed against that conclusion. However, Mr Stewart submitted a cross-appeal in which he contended that the CAC had in fact found wrongly, as a matter of law, that two other pre-conditions had been satisfied when they had not. The Regulations.

[7]With that thumbnail summary in mind, we turn to consider the particular issues in this case. We first set out the relevant regulations: Reg. 2 provides a definition of a pre-existing agreement as follows:

"an agreement between an employer and his employees or their representatives which (a) is made prior to the making of an employee request; and (b) satisfies the conditions set out in regulation 8(1)(a) to (d), but does not include an agreement concluded in accordance with regulations 17 or 42 to 45 of the Transnational Information and Consultation of Employment Regulations 1999[4] of a negotiated agreement."

[8]Reg.7 so far as is material is as follows:

" Employees request to negotiate an agreement in respect of information and consultation (1) On receipt of a valid employee request, the employer shall , subject to paragraphs (8) and (9), initiate negotiations by taking the steps set out in regulation 14(1). (2) Subject to paragraph (3), an employee request is not a valid employee request unless it consists of - (a) a single request made by at least 10% of the employees in the undertaking; or (b) a number of separate requests made on the same or different days by employees which when taken together mean that at least 10% of the employees in that undertaking have made requests, provided that the requests are made within a period of six months. (3) Where the figure of 10% in paragraph (2) would result in less than 15 or more than 2,500 employees being required in order for a valid employee request to be made, that paragraph shall have effect as if, for the figure of 10%, there were substituted the figure of 15, or as the case may be, 2,500. (4)An Employee request in not a valid employee request unless the single request referred to in paragraph (2)(a) or each separate request referred to in paragraph (2)(b) – (a) is in writing; (b) is sent to – (i) the registered office, head office of principal place of business of the employer; or (ii) the CAC; and (c) specifies the names of the employees making it and the date on which it was sent. ….. (7) The date on which an employee request is made is – (a) where the request consists of a single request satisfying paragraph (2)(a) or of separate requests made on the same day satisfying paragraph (2)(b), the date on which the request is or request are sent to the employer by the employees of the date on which the CAC informs the employer and the employees in accordance with paragraph (5)(c) of how the employees have made the request; and (b) where the request consists of separate requests made on different days, the date on which – (i) the request which results in paragraph (2)(b) being satisfied is sent to the employer by the employees; or (ii) the CAC informs the employer and the employees in accordance with paragraph (5) (c) of how many employees have made the request where that request results in paragraph (2)(b) being satisfied."

[9]The relevant parts of reg.8 are:

" Pre-existing agreements: ballot for endorsement of employee request (1) Subject to regulation 9, this regulation applies where a valid employee request has been made under regulation 7 by fewer than 40% of employees employed in the undertaking on the date the request was made and where there exists one or more pre -existing agreements which (a) are in writing; (b) cover all the employees of the undertaking; (c) have been approved by the employees; and (d) set out how the employer is to give information to the employees or their representatives and seek their views on such information. (2) Where this regulation applies, the employer may, instead of initiating negotiations in accordance with regulation 7(1), hold a ballot to seek the endorsement of the employees of the undertaking for the employee request in accordance with paragraphs (3) and (4). (3) The employer must (a) inform the employees in writing within one month of the date of the employee request that he intends to hold a ballot under this regulation; and (b) arrange for the ballot to be held as soon as reasonably practicable thereafter, provided that the ballot does not take place before a period of21 days has passed since the employer informed the employees under sub-paragraph (a) ………….. ………….. (6) For the purposes of paragraph (5), the employees are to be regarded as having endorsed the employee request if (a) at least 40% of the employees employed in the undertaking; and (b) the majority of the employees who vote in the ballot, have voted in favour of endorsing the request."

[10]Regulation 9 deals with the decision where pre-existing agreements cover groups of undertakings.

[11]Regulation 10 provides for a complaint to the CAC. The material provisions are as follows:

"(1) Any employee in the undertaking referred to in regulation 8(1) or employee in one of the undertakings referred to in regulation 9(1), or representative of such employees, who believes that a requirement has not been satisfied that has to be satisfied in order to entitle either the employer, in accordance with regulation 8(2), to hold a ballot, or the employers, in accordance with regulation 9(2), to hold a combined ballot may, within 21 days of the employer informing the employees of the relevant undertaking under regulation 8(3)(a), present a complaint to the CAC. ……….. (3) Where the CAC finds a complaint under paragraph (1) or (2) well- founded it sha1l- (a) in the case of a finding on a complaint under paragraph (1) that any requirement set out in sub-paragraphs (a) to (d) of regulation 8(1) was not satisfied in relation to the undertaking referred to in regulation 8(1) or 9(1)(a), make an order requiring the employer to whom regulation 8(1) or 9(1)(a) relates to initiate negotiations in accordance with regulation 7(1)….."

[12]The regulation setting out the way in which the employer must, following a valid request, make arrangements to negotiate information and consultation agreements is Regulation 14. " Negotiations to reach an agreement 14. -(1) In order to initiate negotiations to reach an agreement under these Regulations the employer must as soon as reasonably practicable - (a) make arrangements, satisfying the requirements of paragraph (2), for the employees of the undertaking to elect or appoint negotiating representatives; and thereafter (b) inform the employees in writing of the identity of the negotiating representatives; and (c) invite the negotiating representatives to enter into negotiations to reach a negotiated agreement.

(2) The requirements for the election or appointment of negotiating representatives under paragraph (l)(a) are that - (a) the election or appointment of the representatives must be arranged in such a way that, following their election or appointment, all employees of the undertaking are represented by one or more representatives; and (b) all employees of the undertaking must be entitled to take part in the election or appointment of the representatives and, where there is an election, all employees of the undertaking on the day on which the votes may be cast in the ballot, or if the votes may be cast on more than one day, on the first day of those days, must be given an entitlement to vote in the ballot."

[13]Reg. 16, so far as is material, is as follows:

"Negotiated agreements 16. (1) A negotiated agreement must cover all employees of the undertaking and may consist either of a single agreement or of different parts (each being approved in accordance with paragraph (4)) which, taken together, cover all the employees of the undertaking. The single agreement or each part must (a) set out the circumstances in which the employer must inform and consult the employees to which it relates; (b) be in writing; (c) be dated; (d) be approved in accordance with paragraphs (3) to (5); (e) be signed by or on behalf of the employer; and (f) either: (i) provide for the appointment or election of information and consultation representatives, whom the employer must provide the infom1ation and whom the employer must consult in the circumstances referred to in sub paragraph (a); or (ii) provide that the employer must provide information directly to the employees to which it relates and consult those employees directly in the circumstances referred to in sub-paragraph (a). (2) Where a negotiated agreement consist of different parts they may provide differently in relation to the matters referred to in paragraph (l)(a) and (f). (3) A negotiated agreement consisting of a single agreement shall be treated as being-approved for the purpose of paragraph (l)(d) if (a) it has been signed by all the negotiating representatives; or (b) it has been signed by a majority of negotiating representatives and either (i) approved in writing by at least 50% of employees employed in the undertaking, or (ii) approved by a ballot of those employees, the arrangements for which satisfied the requirements set out in paragraph (5), in which at least 50% of the employees voting, voted in favour of approval. (4) A part shall be treated as being approved for the purpose of paragraph (l)(d) if the part (a) has been signed by all the negotiating representatives involved in negotiating the part; or (b) has been signed by a majority of those negotiating representatives and either (i) approved in writing by at least 50% of employees (employed in the undertaking) to which the part relates, or (ii) approved by a ballot of those employees, the arrangements for which satisfied the requirements set out in paragraph (5), in which at least 50% of the employees voting, voted in (5) The ballots referred to in paragraphs (3) and (4) must satisfy the following requirements (a) the employer must make such arrangements as are reasonably practicable to ensure that the ballot is fair; (b) all employees of the undertaking or, as is the case may be, to whom the part of the agreement relates, on the day on which the votes may be cast in the ballot, or if the votes may be cast on more than one day, on the first day of those days, must be given an entitlement to vote in the ballot; and (c) the ballot must be conducted so as to secure that (i) so far as is reasonably practicable, those voting do so in secret; and (ii) the votes given in the ballot are accurately counted. (6) Where the employer holds a ballot under this regulation he must, as soon as reasonably practicable after the date of the ballot, inform the employees entitled to vote of the result."

[14]The standard information and consultation provisions, which only operate in the absence of a successful agreement being negotiated within the relevant timescale, are set out in regulation 18. Suffice it to say that it requires the employer to ensure that information and consultation representatives are elected by ballot unless insufficient people are willing to stand. (see schedule 2). The CAC decision

[15]The CAC set out the context in which this issue arose. Mr Stewart is an employee of the Moray Council (The Council). It was accepted that over 500 employees requested the Council to initiate negotiations to reach an agreement under the Regulations, which number is between 10 and 40% of the Council's employees. The Council notified Mr Stewart that it intended to hold a ballot in accordance with regulation 8 (2). It submitted that there were three pre-existing agreements for the purposes of the Regulations. These were: the Framework Local Regulation and Procedure Agreement; the Moray Council Officer Trade Union Group Agreement; and a Protocol for Consultation with Trade Unions. The Framework Agreement was for teachers and the Office Trade Union Group Agreement was for all other staff including Chief Officers. The Protocol related to the latter agreement, applying to all consultations with non-teaching staff representatives.

[16]The Council submitted that these agreements, taken together, satisfied the provisions of regulation 8 (1). Each was in writing; taken together they covered all the employers of the undertaking in the sense that each employee was within one of the groups of workers in respect of whom the agreement was made; they had been agreed by the relevant Trade Unions which represented a majority of the workforce; and they provided for the procedure for giving information to employees or their representatives and to seek their views on such information.

[17]Mr Stewart contended that these agreements were quite inadequate to meet the requirements of regulation 8. He conceded that they were in writing but submitted that they failed to comply with the other requirements. His principal argument was that these three agreements were simply agreements with the relevant Trade Unions; they provided for consultation with the Trade Union representatives and there was no procedure for ensuring that the interests of non-unionists would be taken into consideration. It was, he submitted, misleading to say that the agreements covered all the employees of the undertaking. The Union officials did not act so as to represent the interest of any non-union employees; their concern was with their Trade Union members. Moreover, he submitted that under the Officer Trade Union Group constitution, full time officers who are not employees could attend meetings whereas employees who were not union members could not.

[18]Nor had these agreements been approved by the employees. The non-members had had no opportunity to approve or reject these agreements at all. These agreements were negotiated without any reference to non-members or their interests whatsoever. There had been no separate endorsement by the employees as a whole.

[19]The CAC considered these submissions. They found for the Council on the specific matters relied upon by Mr Stewart but they concluded nonetheless that the agreements failed to comply with the fourth condition set out in Regulation 8, in that one of them, namely the Framework Agreement relating to teachers, did not set out how the employer was to give information to the employees or their representative and seek their views on that information. The conclusions of the panel on these issues were as follows:

"19. The first question for the Panel is whether the agreements "cover all employees in the undertaking."

The agreements in question are listed in paragraph 5 above. The Framework Local Recognition and Procedure Agreement explicitly states, in paragraph 4 of the agreement, that its purpose is to determine collectively the conditions of service of "teaching staff, music instructors, educational advisers and educational psychologists." The Moray Council Officer Trade Union Group Constitution states, at paragraph 2, that within its scope are matters affecting "chief officers, administrative, professional, technical, and clerical employees, manual workers and all craft operatives" and the Protocol for Consultation with Trade Unions states that it applies to "all consultation with non-teaching trade union representatives at both departmental and corporate level." The Panel is accordingly satisfied that all employees of the Council do fall within the auspices of the agreements. However, it was a fundamental part of Mr Stewart's submission that the agreements could not be said to cover those employees who were not members of one of the recognised unions. The Panel's view is that the agreements relate to negotiation and consultation for employees of the Council without differentiating between union members and non-members and that they do therefore cover all employees. . 20. The second issue for the Panel is whether the agreements "have been approved by the employees." The Council's position is that all the agreements have been approved by trade union representatives and, in the case of the Framework Agreement, that is beyond doubt as the agreement itself has been signed by the Council and Teachers' Side representatives. The other agreements are undated and unsigned but the Panel is satisfied that they have been approved by the trade unions. The Council provided evidence at the hearing, in the form of a letter dated 16 June 1999 and the minutes of a Trade Union/Officer meeting on 6 December 1999, that the Constitution of the Officer Trade Union Group had been agreed. The Protocol has also been clearly agreed with the trade unions and the fact that Acas had been involved in the Protocol's development underlined the point that all parties had agreed it. …. 21. The next question for the Panel is whether "approval" by trade union representatives constitutes approval by the employees as the Regulations require. The Panel accepts Mr Stewart's argument that employees cannot indicate retrospective approval by entering into a contract of employment with the Council; being covered by a collective agreement is merely one consequence of entering into a contract of employment. However, the situation at Moray Council is that all employees are covered by one or more of the agreements and trade union representatives are appointed or elected to represent groups of staff. Additionally, at the present time the majority - of employees are trade union members and the Panel was given no evidence that that position was any different at the time the agreements were entered into. Whether or not individual employees choose to join a trade union does not alter the fact that, firstly, trade union representatives represent all employees and, secondly, a majority of the workforce belongs to one of the recognised unions. For those reasons, the Panel's view is that the agreements have been "approved by the employees." 22. The third issue for the Panel is whether the agreements "set out how the employer is to give information to the employees or their representatives and seek their views on such information." The Constitution clearly states that the method on informing and consulting will be through meetings of the Group and includes statements that the Group's purpose includes "Establishing a forum for exchange and distribution of accurate, meaningful information..." and to provide a vehicle for "Open and honest discussion..." The Protocol is a comprehensive document which includes very detailed information on the way consultation will be effected within the Council and it clearly states that it applies to "...all consultation with non-teaching trade union representatives at both departmental and corporate level." The Panel has noted that there is a specific provision in the Consultation Checklist which requires managers to make arrangements to consult with employees who are not union members and this further underlines the point that, under the Constitution and Protocol documents, consultation takes place with all non-teaching employees as the Council presented in its evidence. 23. The Framework Agreement for teachers is a traditional collective bargaining agreement and it is clear to the Panel, from minutes of meetings, that in addition to negotiation the Local Negotiating Committee does act as a forum in which information is disclosed and consultation takes place. However, the Panel is not persuaded that the Agreement fulfils the requirement that it should "...set out how the employer is to give information to the employees or their representatives and seek their views on such information" as the Regulations stipulate. Paragraph 20 of the Agreement states that the Joint Negotiating Committee "...will be a forum for discussion and/or consultation on a range of matters not subject to national bargaining" but the Panel regards that as an insufficiently detailed description of the way the Council should inform and consult teaching staff. It is in stark contrast to the very detailed provisions of the Officer Trade Union Group Constitution and the Protocol; the latter includes a comprehensive "Consultation Checklist" which specifies the way in which managers should prepare for, conduct and conclude a consultation process. The Panel's conclusion is therefore that the Framework Agreement does not fulfill the requirement of regulation 8(1Xd)."

[20]The decision was that the conditions for the operation of Regulation 8 were not met and that therefore the Council had to initiate negotiations pursuant to Regulation 7. The grounds of appeal.

[21]Mr Napier QC submits that the CAC wrongly construed Regulation 8 when considering whether it set out how the employer was to give information to the employees or their representatives and to seek their views on such information in accordance with Regulation 8(1)(d). First, he suggested, albeit with no great degree of enthusiasm, that the Teacher's Agreement did indeed do enough to comply with Regulation 8(1)(d). The relevant paragraph of the Agreement (para 20) is set out in para 23 of the CAC decision, reproduced above. He says that the reference to the Joint Negotiation committee is enough to secure compliance with the provision. We reject that submission. We have no doubt at all that the CAC were correct to say that this is far too lacking in detail to comply with the requirements of 8(1)(d); indeed, in our view that paragraph does not engage with those detailed requirements in any way.

[22]But Mr Napier runs a separate and distinct argument. He submits that in any event it was not necessary for this particular agreement to comply with that provision. He says that where there is more than one pre-existing agreement it is not necessary that each should comply with each condition: it is enough that the agreement or agreements regulating the majority of the employees do so; or alternatively, that there is substantial compliance with the requirements taken as a whole.

[23]He supports his submission by reference to two matters in particular. First, he points to the distinction between Regulation 8 and Regulation 16. The latter deals with negotiated agreements and provides in terms that in order to constitute a negotiated agreement the single agreement "or each part" must meet the specific requirements. By contrast Regulation 8 does not include those or any such similar words. On the contrary he submits that the language suggests that where there is more than one agreement, one should look at the overall effect taking all the agreements together. He submits that the inference from the different treatment of Regulation 8 and Regulation 16 must be that it is not a requirement in the former that each agreement should strictly satisfy each of the conditions. He adds that it is not surprising that Regulations 8 and 16 should lay down different standards in this regard. Regulation 8 has a more limited function than Regulation 16; it merely allows the employer to test employee support for a request for an information and consultation agreement. It is not in those circumstances necessary to require the same detailed compliance with the provisions as is necessary where a voluntary agreement has been entered into which excludes the default option of the standard information and consultation provisions.

[24]Second, Mr Napier also points out that the CAC itself in its decision did not require that, in relation to each agreement, the agreement should be approved by the employees covered by that agreement. It did not look at the matter by reference to each agreement to determine whether, for example, the statistics on union membership supported the view that a majority of the employees in respect of each agreement had approved it. Rather it looked at the matter across the board, focusing upon the aggregate statistics of those who were union members when the agreements were reached and those who were not. He contends that this is the right approach and that the CAC ought to have adopted a similar analysis when looking at Regulation 8(1)(d).

[25]Mr Stewart, who appeared in person, supported the reasoning of the CAC on this point.

[26]In our judgment the CAC did not err in law. It is true that Regulation 8(1) is not as clearly formulated as it might be. For example, if one says that each of the requirements of Regulation 8(1) must be met by each agreement then, on a literal interpretation, in the case of multiple agreements each would have to cover all the employees. Plainly that cannot be right. The point of multiple agreements is that cumulatively they cover all employees but different agreements will cover different groups of employees.

[27]However, whilst recognising that no construction is wholly without difficulty, in our opinion it is tolerably clear that whereas Regulation 8(1)(b) has to be met by the agreements read together, each of the other requirements has to be met by each individual agreement. It is not good enough for merely one of the agreements to do so even if it covers the majority of the employees or a substantial proportion of them. In our judgment this is supported by the following considerations. First, regulation 8 refers to "each of the agreements" where there is more than one pre existing agreement; they are not treated as merely parts of one overall pre-existing agreement. Regulation 2 then in turn defines a pre-existing agreement as one where each of the conditions of regulation 8(1)(a) to (d) are satisfied. It follows, in our view, that each must satisfy each of those conditions (subject to the point we have made about paragraph (b)).

[28]Second, there is no justification in the language of the regulation itself to suggest that it is sufficient for the conditions to be met only by agreements covering the majority of the employees or a substantial proportion of them. It is not a legitimate reading of this Regulation to read in any such limitation, and the definition of a pre-existing agreement in regulation 2 tells against it.

[29]Third, the purpose of the provision seems to us to be consistent with it being construed so as to enable the employer to test whether or not the employees support the request for an information and consultation arrangement only when all the employees are subject to agreements which meet the conditions. After all, the effect of the ballot may be to defeat the right to have the statutory procedures at all and to leave the voluntary pre-existing arrangements in place. In those circumstances one might expect that if the existing arrangements are to be given priority, the minimum standards set down in regulation 8 (whatever they might require) should at least apply to all employees.

[30]It follows that the appeal itself fails. The CAC were right to find that Regulation 8(1)(d) was not satisfied with respect to one of the pre-existing agreements.

[31]The logic of the analysis is that the CAC should also have satisfied itself that the employees covered by each agreement had given their approval for that particular agreement rather than simply looking at the matter in the aggregate. That is not a specific ground of appeal but in our view it is what the law requires. The cross appeal.

[32]There are two elements to the cross appeal. First it is said that the CAC erred in finding that the agreements taken together covered all the employees. Mr Stewart accepts that they purport to cater for all categories of employee, in the sense that the Framework Agreement applies to teachers and the Officer Trade Union Group agreement and the Protocol apply to non teaching staff. But he submits that the union representatives are not acting on behalf of non-unionists. In substance they are merely looking after the interests of their trade union members. The interests of the non-unionists are not covered at all.

[33]Mr Napier emphasises that language of the regulation requires that all employees should be "covered by" the agreement or, in the case of more than one pre-existing agreement, the agreements. He submits that this does not mean that all employees must necessarily have their own chosen representatives representing them or be in a position to influence the outcome of any consultations. It merely requires that the agreements be intended to regulate the position of all the employees, in the sense that the information and consultation arrangements will not provide that any category of employees is outwith their scope. Whether or not the employees are union members is irrelevant.

[34]We agree with that submission. In our judgment it would be perfectly appropriate to describe employees as being covered by the terms of a collective agreement if that agreement is intended to regulate their terms and conditions, whether or not they are union members. Similarly, we think that they are covered by an information and consultation agreement if they fall within the category or categories of employees intended to be regulated by that agreement. As the CAC pointed out, the agreements themselves do not seek to distinguish between the position of union members and non-members. It is true that the trade unionists may, if only indirectly, have a greater influence upon the outcome of any consultations by virtue of their direct access to union representatives; but that does not mean that non-unionists are not equally covered by the agreements. Accordingly, this aspect of the cross appeal fails.

[35]The second aspect is directed at the CAC's conclusion that the agreements were approved by the employees. The reasoning of the CAC was that the agreements had been approved by the union representatives, the majority of employees were members of recognised unions, and therefore the requisite approval had been given. We accept that approval of the employees means approval of the majority but, for reasons we have already given, we do not accept that in a case where there are a number of agreements, the question of approval can be considered in the aggregate. It seems to us that the necessary approval is only obtained if each of the agreements is approved by the employees covered by that agreement. Had this been crucial to the outcome of this appeal, we would have remitted the case to the CAC to determine whether that was indeed the position or not. We are not able to say on the evidence before us whether it is or not.

[36]But there is a further potential problem. Was the CAC entitled to find the requisite approval in the fact that the majority consists of trade union members? Mr Stewart says not; he correctly says that the non unionists have not had the opportunity to pass any comment on the agreements ostensibly regulating their position, nor have they participated in the appointment or election of the union representatives who are consulted pursuant to them. He contends that all the employees should have been entitled to express their support or otherwise for the existing arrangements. Mr Napier submits that this is irrelevant. It is not necessary in all cases that each employee should expressly have had the opportunity to approve the agreement; it is enough that it is in fact supported by a majority of the relevant employees. He observes that the Regulations provide that it is for the CAC to determine whether that majority approval exists. It is not necessary that each employee should have had the right to express an opinion on the matter, whether in a ballot or some other way. The CAC must consider all the evidence before it and determine whether there is the requisite support for the agreement. If there is a proper evidential basis for the CAC's conclusion, the EAT cannot interfere. It is only if the CAC errs in law that the EAT has power to intervene.

[37]We have found this the most difficult issue in the case, but we prefer the argument of Mr Napier. It is in our view relevant that regulation 8 does not prescribe any particular way in which employee approval needs to be demonstrated. This is in contrast to regulation 16 which specifically provides for circumstances where the employees must approve a negotiated agreement, and stipulates that any such approval must be manifest either by support shown in a ballot, or by approval in writing of a majority of the employees. Had the draftsman intended that there should be a similar positive and specific demonstration of support to establish the requisite approval under regulation 8, we think that he would have said so. This is particularly so since in practice collective agreements negotiated with trade unions will not, in the ordinary way, be subject to express approval in a ballot, and the draftsman must be taken to know that.

[38]Of course, there must be evidence from which the CAC can, using their wide industrial relations experience, properly infer that the majority of the employees covered by a particular agreement have approved that agreement. Obviously whether there is such evidence will depend on the particular circumstances, but in our view it will usually be legitimate to infer approval if, at the time the agreement was made, the majority of the employees covered by the agreement were members of the union or unions which are parties to that agreement. (The CAC rightly focused on the position when the agreements were made; they did not have union membership statistics for that time but assumed that they were not materially different to the statistics showing membership at the time of the application.) However, it will not always be legitimate to draw such an inference even where the trade unionists are in a majority if, for example, there is evidence that there was a degree of opposition to the agreement at the time from employees within the trade union itself. The CAC is a highly experienced body and it will be for it to decide, in the light of all the evidence, whether it is proper to infer the requisite support or not. If, therefore, union members constitute a majority of the employees covered by the agreement, then generally the approval of the employees will be established. Whatever the opinion of the non-unionists, the support of the trade unionists will carry the day. If, by contrast, union membership were in a minority, then it would not be appropriate to infer the necessary approval and it would be necessary for the employer to be able to establish the relevant approval in some other way, such as by seeking formal approval in a ballot of the relevant employees. This would have to be done prior to the request being made.

[39]We would therefore reject this part of the cross appeal also. Conclusion .

[40]We dismiss both the appeal and the cross appeal. Save for one point, we agree with the approach of the CAC. In our judgment it erred when it analysed the question of employee approval by considering the agreements in the aggregate. We think that it ought to have focused on each agreement separately and asked whether the employees covered by a particular agreement had approved that agreement. In the event nothing turns on this, given that we have dismissed the appeal.

[41]The consequence of the appeal failing is that the Council has to initiate negotiations to reach an information and consultation agreement pursuant to regulation 7.