The Gazette 1983

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GAZETTE JULY/AUGUST 198
relief to prevent the transfer being effected until the
transferor and transferee have complied with this
regulation.
The Regulation further requires that this information
shall be given by the transferor in good time before the
transfer is carried out and by the transferee "in good time"
and, in any event, before the employees are directly
affected by the transfer. There is further requirement that
if the transferor or transferee "envisage measures in
relation to the employees" they shall consult in good time
on such measures with a view to seeking the
event of there not being employee representatives, it is a
requirement of the Regulation that a statement in writing
containing the required information be given to individual
employees and that notices containing these particulars be
displayed prominently at positions in the work-place
of employees, where they can be read conveniently by the
employees.
Regulation 8 empowers an Officer of the Minister,
where he is of the opinion that a transaction constitutes a
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 convic-
tion 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 satis-
factory information about the bid, relying on the pro-
visions 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 informa-
tion 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 Under Secretary, 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 wa> if 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 Employ-
ment Appeals Tribunal on the question of what is or is not
a 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
or 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 pro-
visions 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
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