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GAZETTE SUPPLEMENT
APRIL. 1984
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
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