Seán Sherlock (Cork East, Labour)
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This issue arises from the proposed takeover of GlaxoSmithKline, GSK, in Cork by Thermo Fischer Scientific. It has given rise to concerns on the part of the workers and their representatives, specifically SIPTU which represents the majority of the affected workers. They relate to the interpretation or perceived lack of adherence to the regulations in respect of the transfer of undertakings regulations of 2003. The trade union SIPTU has written to the Minister for Business, Enterprise and Innovation, Deputy Humphreys, but I understand the matter is now in the bailiwick of the Minister for Employment Affairs and Social Protection, Deputy Regina Doherty.

I will quote from a letter I received in respect of concerns that were raised with the Minister, Deputy Humphreys. It refers to:

...GSK management's announcement that they have failed to consult fully with the union and merely put in place a communications strategy to inform our members of both employers' unilateral decisions to change existing terms and conditions of employment. The type of unilateral changes communicated by both employers to workers have far reaching economic impact on our members for example the ceasing of the Defined Benefit Pension Scheme, fundamental changes to the Bonus scheme, non-transfer of annual leave entitlements, ceasing of the revenue approved share purchase scheme.

They are just some of the issues that have arisen. The workers in GSK were informed by their employers on 16 May last that the plant, which employs over 400 people, was to be sold to Thermo Fischer Scientific "under transfer of undertaking for the purposes of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003...". In plain English, one entity has been taken over by another. There were pre-existing and longstanding agreements collectively arrived at and it is feared that they will now be pushed aside. These relate to holidays, sick pay and other changes the employees will have to incur, particularly with regard to their pension entitlements or a previously negotiated pension arrangement.

Any entity, regardless of what it is, must be compliant with the law. I am raising this with the Government to ensure that the workers in GSK and Thermo Fischer Scientific are protected in law and that a process is put in place forthwith through the machinery of the State, be it the Labour Court or through a conciliation process, whereby the Government is watchful of what is happening and ensure it is aware of the situation so there will be a proper dialogue between the two sides to ensure no worker's rights are undermined in any way.

Finian McGrath (Dublin Bay North, Independent)
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I thank Deputy Sherlock for raising this important issue. I am replying on behalf of the Minister for Employment Affairs and Social Protection, Deputy Regina Doherty.

As I understand it, Thermo Fisher Scientific has agreed to buy a manufacturing plant in Cork from GlaxoSmithKline, GSK. The sale sees the transfer of ownership of the site, including all facilities as well as business operations and approximately 400 employees, to Thermo Fischer Scientific. GSK employs approximately 1,700 people in Cork, Dungarvan, Dublin and Sligo. Last year it announced plans to close its Sligo plant by 2021, with the loss of 165 jobs. I am told that due to strategic changes in the GSK portfolio, the Cork site had been significantly under utilised and it became clear that it was no longer a competitive fit within GSK manufacturing network. As well as providing certainty for the workers, it is said that the sale will leave the site well positioned for future growth and development.

In terms of my responsibility as Minister for Employment Affairs and Social Protection, what is relevant here is the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The regulations implement a 2001 EU Directive aimed at safeguarding the rights of employees in the event of a transfer of an undertaking, business or part of a business, to another employer as a result of a legal transfer or merger.

The regulations set out a number of obligations on both the transferor and the transferee in relation to consultation and the provision of information to employees. This must take place at least 30 days in advance of the actual transfer.

The main provisions of the regulations are as follows: all the rights and obligations of an employer under a contract of employment, including terms inserted by collective agreements other than pension rights, are transferred to the new employer on the transfer of the business or part thereof; the new employer must also continue to observe the terms and conditions of any collective agreement until they expire or are replaced; and an employee may not be dismissed by reason of the transfer alone. However, dismissals may take place for economic, technical or organisational reasons involving changes in the workforce. The regulations do not apply where the outgoing employer is subject to proceedings whereby he may be adjudicated bankrupt or wound up for reasons of insolvency, by order of the High Court. The position of the employees’ representatives is protected across a transfer. Both the outgoing and incoming employers are obliged to inform their respective employees’ representatives of the reasons for the transfer and the legal, social and economic implications of the transfer. Where there are no representatives, the employers must arrange for the employees to choose representatives for this purpose. I currently have no reason to believe that the companies involved will not comply with the legislation.

Seán Sherlock (Cork East, Labour)
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I welcome the fact that the Minister clearly and unambiguously stated the law. A Minister who sits at Cabinet has stated, on the record of this House, the law of the land in respect of this issue. I hope that any parties bearing witness to this exchange are mindful of this. However, he also stated, "I currently have no reason to believe that the companies involved will not comply with the legislation." I have no way of knowing that and I am sure the Minister of State has no way of knowing it because he is taking this matter on behalf of the Minister, Deputy Regina Doherty. I am hopeful that, by virtue of the fact that we have raised this issue, some process can be entered into whereby the Minister of State's colleagues in Cabinet will take heed of the main provisions of the regulations, as he has clearly set them out. As a Minister of State who sits at Cabinet has set out the regulations on the record of the House, I am pretty sure the parties involved will take heed of them.

Finian McGrath (Dublin Bay North, Independent)
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Under the regulations, a transfer is defined as the transfer of an economic entity which retains its identity. The question of whether a transfer is a transfer within the meaning of the regulations is a matter to be determined by the adjudicating officer in the Workplace Relations Commission, WRC, or, on appeal, at the Labour Court based on the circumstances of that particular case. Complaints relating to an alleged contravention of the 2003 regulations can be brought in the first instance to an adjudicating officer of the WRC and, on appeal, to the Labour Court. These bodies are guided by national and European Court of Justice case law. Any such case should be taken within six months of the date on which an employee considers there has been a contravention of the regulations. An application to the WRC can be made by the employee or a representative, including a trade union representative. A decision of the adjudicating officer may declare that the complaint is or is not well founded, as the case may be. It may require the employer to comply with the regulations and to take a specific course of action for that purpose or it may require the employer to pay to the employee compensation of such an amount as is just and equitable in the circumstances, up to a maximum of two years' remuneration or four weeks' remuneration in the case of a contravention of the information and consultation provisions of the regulations.

As I said, I currently have no reason to believe that the companies involved will not comply with the regulations but a statutory adjudications framework is in place to provide remedies if necessary. I will bring the issues the Deputy has raised back to the Minister, Deputy Regina Doherty.