TUPE newsletter series PART 3 - Rights and obligations of employees in case of a transfer of (part of) an undertaking
11 Jul 2023
In a series of TUPE newsletters, we’re examining the various particularities of the transfer of undertaking legislation as laid down in the TUPE-directive and its Belgian transposition; collective bargaining agreement (CBA) No. 32bis.
Our first newsletter explored the scope of the TUPE-Directive and CBA No. 32bis. Subsequently, in our second newsletter, we focused on the information and consultation obligations imposed by Belgian legislation, emphasising the importance of these procedural obligations and transparency during the transfer process. Building further on these first two newsletters, this third and final issue of our series delves deeper into the specific rights and obligations for employees in the context of a transfer of undertaking under CBA No. 32bis.
Automatic transfer of all employees involved
The aim of CBA No. 32bis is to safeguard the rights of the affected employees in the event of a change of employer resulting from a transfer of (part of) an undertaking. One of the fundamental aspects of a transfer of undertaking in application of CBA No. 32bis, is therefore the automatic transfer of the employees involved from the transferor to the transferee. In other words, the transferee inherits all the rights and obligations arising from the existing employment agreements on the date of the transfer, ensuring continuity of employment for the affected employees.
‘Cherry picking’ is thus not allowed, meaning that neither the transferor nor the transferee can pick and choose which employees (not) to transfer. The other side of this automatic mechanism is that the affected employees can’t refuse to transfer either.
Nature of the rights and obligations that are being transferred
Based on CBA No. 32bis, all terms and conditions of employment – save those that constitute supplementary social security schemes – are automatically and legally transferred from the transferor to the transferee by the mere fact of the transfer. This firstly means that the individual employment agreements are transferred to the transferee, including all rights and obligations arising from these agreements (e.g. remuneration and benefits, accumulated seniority, position etc.). In addition, rights derived from collective instruments existing at the moment of transfer (e.g. work regulations, company-level CBAs and sectoral CBAs) will also transfer. In light of this, the terms and conditions of the employment agreements and the employees’ remuneration package should be precisely mapped prior to the transfer in order to ensure a smooth transfer process.
Also note in this respect that the transferor and the transferee are held jointly and severally liable for the debts existing on the date of the transfer (e.g. unpaid wages), except for debts arising from supplementary social security schemes.
It’s important to point out that – after the transfer – the transferee can, moreover, not just unilaterally change the employment conditions (e.g. the salary or place of work) to the detriment of the employees. Indeed, any significant change to an essential element of the employment could in this respect constitute an implicit dismissal by the employer, giving rise to an indemnity in lieu of notice. The transferee of course remains free to negotiate with the transferred employees and (if necessary) to conclude a new agreement or new terms of employment.
Protection against dismissal
If CBA No. 32bis applies, a specific protection against dismissal will be triggered. More specifically, it’s forbidden – for both the transferor and the transferee – to dismiss an employee solely because of the transfer. The affected employees may nevertheless be dismissed for serious cause or for reasons of an economic, technical or organisational nature that result in changes to employment.
Although CBA No. 32bis doesn’t provide for a specific sanction if the prohibition for dismissal isn’t respected, the employee concerned might be able to claim additional compensation in case of non compliance.
The Belgian transfer of undertaking legislation, as enshrined in CBA No. 32bis, provides for a robust protection-mechanism for employees during a qualifying business transformation. The legislation in particular aims to safeguard the rights and obligations of employees, ensuring their job security and preserving their working conditions.A thoughtful and considerate HR approach in case of a business transfer is therefore indispensable and will not only mitigate potential legal risks but also foster a positive workforce culture and pave the way for long-term success.
If you have any questions on the HR impact of CBA No. 32bis, feel free to get in touch with any of our specialists. We’d love to hear from you!
