ICE Regulations: enforcement, protections and confidential information
Enforcement mechanisms in the ICE Regulations.
You and your employees are subject to a number of rights and responsibilities under the Information and Consultation of Employees (ICE) Regulations. The Industrial Court is responsible for ensuring that most of these are adhered to.
Enforcement of negotiated agreements and the fall-back provisions
You can be penalised if there is no negotiated agreement by the end of the required six-month negotiating period, and no ballot has been arranged to elect information and consultation (I&C) representatives.
If you fail to abide by the terms of a negotiated I&C agreement or the fall-back provisions, your employees or their representatives can raise a complaint with the Industrial Court. If the Industrial Court upholds the complaint they may issue a compliance notice that will set out the steps you must take in order to meet your obligations and the date by which you must take them.
If the Industrial Court does find that you have not adhered to the terms of a negotiated agreement or the fall-back provisions, then your employees or their representatives may be able to apply to the High Court to request that they make you pay a penalty of up to 拢75,000. The level of the penalty is based on the severity and impact of the failure.
Enforcement of pre-existing agreements (PEAs)
PEAs are only enforceable by measures that are included in the PEA itself. The Industrial Court has no authority to hear complaints that a party has not adhered to the terms of a PEA.
Confidential information
If you have a negotiated agreement or you are subject to the fall-back provisions, then you should try to share as much information as possible with your employees or their representatives. However, you can justifiably restrict or withhold certain information on the grounds that if it came out, it could harm your business.
If you withhold a piece of information that your employees believe they should be allowed to see, they can appeal to the Industrial Court which will judge whether you are right to withhold it.
Rights and protections for representatives and employees
Your employees who act as representatives either during negotiations or as part of an I&C agreement have the right to take reasonable paid time off to fulfil their duties. You cannot dismiss or subject to detriment any of your employees as a result of their involvement in I&C activity unless they are found to be passing on confidential information. If you do not respect your employees' rights, they may be able to take you to an industrial tribunal.