Made | 4th April 2007 | ||
Laid before Parliament | 11th April 2007 | ||
Coming into force in accordance with article 1(2) |
Modifications of paragraph 43 of the Schedule
2.
Paragraph 43 of the Schedule is modified as follows—
(b) In sub-paragraph (4)—
(c) In sub-paragraph (5)—
(d) In sub-paragraph (6)(a)—
(e) In sub-paragraph (6)(b) for "at the end of", substitute "immediately before the end of",
(f) In sub-paragraph (7) for "any rights or liabilities", substitute "any rights, powers, duties or liabilities",
(g) In sub-paragraph (8) for "any rights or liabilities", substitute "any rights, powers, duties or liabilities",
(h) In sub-paragraph (9) for "any rights or liabilities", substitute "any rights, powers, duties or liabilities".
Staff transfer list
3.
—(1) The Secretary of State must, before the end of the initial period, produce a staff transfer list that names relevant employees for the purposes of paragraph 43(2) of the Schedule.
(2) The Secretary of State may amend a staff transfer list.
(3) A staff transfer list must be signed by or on behalf of the Secretary of State, dated and deposited at the Wales Office, Discovery House, Cardiff Bay, Cardiff, CF99 1NA.
(4) A staff transfer list deposited in accordance with paragraph (3) must be made available for inspection at such times and on such conditions as the Secretary of State considers appropriate.
Effect of transfer of contract of employment
4.
—(1) All rights, liabilities, powers and duties of the Assembly under or in connection with any contract of employment—
shall, subject to articles 7 and 9, transfer to the Assembly Commission at the end of the initial period.
(2) Paragraph (1) applies in relation to the contract of employment of any relevant employee who would, immediately before the end of the initial period, have been employed by the Assembly if he had not been dismissed in the circumstances described in article 12(1).
(3) For the purposes of paragraph (1), the rights and liabilities, powers and duties of the Assembly under or in connection with any contract of employment to which paragraph (1) applies include any rights, liabilities, powers and duties under an agreement whereby the Assembly agrees to lend or advance monies to, or reimburse expenses incurred by, a listed relevant employee, or to lend or advance monies to a third party on behalf of such an employee.
5.
Any transferred contract shall have effect, subject to article 8 after the transfer as if originally made between the Assembly Commission and the listed relevant employee.
6.
Subject to article 8, the terms and conditions of a listed relevant employee's employment with the Assembly Commission shall be (taken as a whole) no less favourable to him than the terms and conditions on which he is employed by the Assembly immediately before his contract of employment is transferred under article 4.
7.
Article 4 shall not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of and sentenced for any offence.
Effect of variation of contract of employment
8.
—(1) In respect of a contract of employment that is, or will be, transferred by article 4 , any purported variation of the contract shall be void if the sole or principal reason for the variation is—
(2) Paragraph (1) shall not prevent the Assembly and a listed relevant employee whose contract of employment will be transferred by article 4 from agreeing a variation of that contract if the sole or principal reason for the variation is—
(3) Paragraph (1) shall not prevent the Assembly Commission and a listed relevant employee whose contract of employment is transferred by article 4 from agreeing a variation of that contract if the sole or principal reason for the variation is—
Effect of objection to transfer of contract of employment
9.
—(1) Article 4 does not operate if a listed relevant employee informs the Assembly or the Assembly Commission that he objects to becoming employed by the Assembly Commission.
(2) In a case falling within paragraph (1) and subject to articles 10 and 11, the listed relevant employee's contract of employment is terminated immediately before the end of the initial period and the listed relevant employee is not, by virtue of that termination, to be treated for any purpose as having been dismissed.
Effect of substantial detrimental change to contract of employment
10.
—(1) Where the transfer of a contract of employment of a listed relevant employee involves or would involve a substantial change in working conditions to the material detriment of the listed relevant employee, he may treat his contract of employment as having been terminated, and he shall be treated for any purpose as having been dismissed by the Assembly or the Assembly Commission (as the case may be).
(2) No damages shall be payable by the Assembly or the Assembly Commission (as the case may be) as a result of a dismissal falling within paragraph (1) in respect of any failure by the Assembly or the Assembly Commission to pay wages to the listed relevant employee in respect of a notice period which that employee has failed to work.
Effect on certain other employment rights
11.
Articles 4, 9 and 10 are without prejudice to any right of a listed relevant employee arising apart from this Order to terminate his contract of employment without notice in acceptance of a repudiatory breach of contract by the Assembly or the Assembly Commission (as the case may be).
Dismissal because of transfer of contract of employment
12.
—(1) Where any employee of the Assembly or the Assembly Commission is dismissed by the Assembly or by the Assembly Commission (as the case may be), he shall be treated for the purpose of Part X of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal is—
(2) This paragraph applies where the sole or principal reason for the dismissal is a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workforce of either the Assembly or the Assembly Commission (as the case may be) before or after the transfer of his contract of employment under article 4 .
(3) Where paragraph (2) applies—
(4) The provisions of this article apply irrespective of whether the employee in question is a listed relevant employee.
(5) Paragraph (1) shall not apply in relation to a dismissal of an employee if the application of section 94 of the 1996 Act to the dismissal of the employee is excluded by or under any provision of the 1996 Act, the 1996 Tribunals Act or the 1992 Act.
Pensions
13.
—(1) Articles 4 and 14 shall not apply—
(2) For the purposes of paragraphs (1) and (3), any provision of an occupational pension scheme which does not relate to benefits for old age, invalidity or survivors shall not be treated as being part of the scheme.
(3) A listed relevant employee whose contract of employment is transferred under article 4 shall not be entitled to bring a claim against the Assembly for—
arising out of a loss or reduction in his rights under an occupational pension scheme in consequence of the transfer, save insofar as the alleged breach of contract or dismissal (as the case may be) occurred prior to the date on which the Transfer of Undertakings (Protection of Employment) Regulations 2006[8] took effect.
Effect of transfer of contract of employment on collective agreements
14.
Where at the time of the transfer of a transferred contract there exists a collective agreement made by or on behalf of the Assembly with a trade union recognised by the Assembly in respect of any listed relevant employee whose contract of employment is preserved by article 4, then—
Effect of transfer of contract of employment on trade union recognition
15.
—(1) This article applies where after the transfer of the contracts of employment of the group of listed relevant employees whose contracts of employment are transferred under article 4, that group maintains an identity distinct from the remainder of the Assembly Commission's undertaking.
(2) Where before those contracts of employment are so transferred an independent trade union is recognised to any extent by the Assembly in respect of any listed relevant employee whose contract of employment transfers under article 4, then, after the transfer—
Restriction on contracting out
16.
Section 203 of the 1996 Act (restrictions on contracting out) shall apply in relation to this Order as if its provisions were contained in that Act, save for that section shall not apply in so far as this Order provides for an agreement (whether a contract of employment or not) to exclude or limit the operation of any provision of this Order.
Nick Ainger
Parliamentary Under Secretary of State Wales Office
4th April 2007
[2] The expression "the 2007 election" is defined in section 161(1) of the Government of Wales Act 2006 as the ordinary election under section 3 of the Government of Wales Act 1998. In accordance with section 3 of the 1998 Act the election is due to take place on 3rd May 2007.back
[8] S.I. 2006/246, to which there are amendments not relevant to this Order.back