John Kelly

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John Kelly Manager Information Services
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NERAs Mission Statement
To achieve a national culture of employment
rights compliance
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NERAs Evolution
Born out of the Towards 2016 Partnership
Talks NERA was established on an interim basis
in 2007 Subsumed three former sections of
DETE -Labour Inspectorate -Information
Unit -Prosecution and enforcement section
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NERAs Resources

• Total Staff 141
• Management Team - including Legal accounting
• Inspection Services including 90 Inspectors
• Information Services
• Legal and Strategic Services
• Budget of 10.8 Million for 2008

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NERAs Locations

• HQ and regional offices
• Carlow
• Dublin
• Cork
• Sligo
• Shannon

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How Does NERA Work for you?
A resource for employers employees to achieve
compliance through -Information and
Education -Inspection -Prosecution -Enforcement
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Transfer of Undertakings
European Communities (Protection of Employees
on Transfer of Undertakings) Regulations
2003 (SI No. 131 of 2003)
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Transfer of Undertakings
Scope Applies to public or private undertakings
engaged in economic activities whether or not
operated for gain
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Transfer of Undertakings

• Definition of Transfer
• Transfer means the transfer of an economic
  entity which retains its identity
• Economic entity means an organised grouping of
  resources which has the objective of pursuing an
  economic activity whether or not that activity is
  for profit or whether it is central or ancillary
  to another economic or administrative entity.

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Transfer of Undertakings

• Who is covered?
• Persons
• Working under a contract of employment (incl.
  apprentices)
• Employed through an employment agency (party
  liable to pay wages is employer for purposes of
  Regulations)
• Office holders under/in service of State

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Transfer of Undertakings
Insolvency The Regulations shall not apply to
any transfer of an undertaking, business or part
of an undertaking or business where the transfer
is the subject of bankruptcy proceedings or
insolvency proceedings However if the sole or
main reason for bankruptcy or insolvency is the
evasion of an employer's legal obligations the
Regulations shall apply to a transfer effected by
that employer
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Transfer of Undertakings
Protection of Employment (1) (Rights) All the
rights and obligations of an employer under a
contract of employment (including terms inserted
by collective agreements) other than pension
rights existing on the date of transfer, are
transferred to the new employer on the transfer
of the business or part thereof.   The new
employer must continue to observe the terms and
conditions any collective agreement until it
expires or is replaced.  
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Transfer of Undertakings
Protection of Employment (2) (Dismissal/Terminatio
n) An employee may not be dismissed solely by
reason of the transfer. However, dismissals may
take place for economic, technical or
organisational reasons involving changes in the
work-force.   If an employment is
terminated because a transfer involves a
substantial deterioration in the working
conditions of the employee, the employer
concerned is regarded as having been responsible
for the termination.  
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Transfer of Undertakings
Protection of Employment (3) (Pensions) Employees
pension rights in relation to old age,
invalidity or survivors benefits under
supplementary company or inter-company pension
schemes do not transfer to the new employment,
however (a) if the scheme is an occupational
pension scheme within the meaning of the Pensions
Act, 1990, then the protections afforded by the
Pensions Act apply   (b) Does not come within
the remit of the Pensions Act, the new employer
must ensure that rights conferring immediate or
prospective entitlement to old age benefits,
including survivor's benefits, are protected.  
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Transfer of Undertakings

• Information and Consultation (1)
• The transferor and transferee concerned in a
  transfer shall inform theirrespective employees'
  representatives affected by the transfer of
• the date or proposed date of the transfer
• the reasons for the transfer
• the legal implications of the transfer for the
  employees and a summary of any relevant economic
  and social implications of the transfer for them
• any measures envisaged in relation to the
  employees. 

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Transfer of Undertakings
Information and Consultation (2) The original
employer must give this information to the
employees representatives, where reasonably
practicable, not later than 30 days before the
transfer and in any event, in good time before
the transfer occurs.   The new employer must give
the information to the employees
representatives, where reasonably practicable,
not later than 30 days before the transfer occurs
and in any event, in good time before the
employees are directly affected by the transfer
as regards their conditions of work and
employment.
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Transfer of Undertakings
Information and Consultation (3) If either
employer envisage measures in relation to their
employees, the employees representatives must be
consulted, where reasonably practicable, not
later than 30 days before the transfer occurs
and, in any event in good time before the
transfer about such measures, with a view to
reaching agreement.  
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Transfer of Undertakings
Information and Consultation (4) Where there are
no employee representatives, the employers must
arrange for the employees to choose (including by
means of an election) representatives for this
purpose or if there are still no employees
representatives in the undertaking through no
fault of the employees, the employees concerned
must be notified in writing, where reasonably
practicable, not later than 30 days before the
transfer and, in any event, in good time before
the transfer  
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Transfer of Undertakings

• Complaints to Rights Commissioner (1)
• (Process)
• An employee, trade union, staff association or
  excepted body on behalf of and with the
  employees consent, may present a complaint to a
  Rights Commissioner that an employer has
  contravened any provision of the Regulations
• Written notice of the complaint must be presented
  to the Rights Commissioner within 6 months of the
  date of the alleged contravention
• May be extended by a further 6 months if the
  Rights Commissioner is satisfied that the failure
  to present the complaint within the initial 6
  month period was due to exceptional
  circumstances.
•  

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Transfer of Undertakings

• Complaints to Rights Commissioner (2)
• (Process)
• Rights Commissioner will
• Copy notice of complaint to employer
• Give opportunity for parties to be heard and to
  present evidence
• Issue a written decision
•  

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Transfer of Undertakings

• Complaints to Rights Commissioner (3)
• (Decision)
• Rights Commissioners decision may
• Declare complaint was/not well founded
• Require the employer to comply with the
  Regulations and for that purpose to take a
  specific course of action, or
• Require the employer to pay to the employee
  compensation not exceeding
• 4 weeks remuneration in the case of a
  contravention of the information and consultation
  provisions of the Regulations  
• 2 years remuneration in the case of a
  contravention of any other provision.
•  

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Transfer of Undertakings

• Complaints to Rights Commissioner (4)
• (Appeal/Enforcement)
• Rights Commissioners decision may be appealed by
  either party within 6 weeks of receipt of
  decision to Employment Appeals Tribunal
• Parties or Minister may appeal the determination
  of the EAT to the High Court on a point of law
• Decisions of Rights Commissioners/Determinations
  of EAT can be enforced through NERA
•