12 Oct 2021

Two amendments to the TUPE regulation determine when the conditions laid down in collective agreements can be changed in a transfer situation. If the transferred enterprise retains an identity different from the rest of the activity of the new employer, the new employer shall be deemed to recognize an independent trade union in respect of the transferred workers to the extent that it was recognized by the previous employer. If the company does not maintain its own identity, the union recognition so far is extinguished and it is up to the union and the employer to renegotiate the recognition. However, if the new employer participates in collective bargaining after the transfer, the agreed amendments are binding on the new employer, in accordance with the provisions of the collective agreement. One year after the transfer, new employers can renegotiate the terms of a collective agreement – as long as the overall change is no less favourable for the workers concerned. The new rules take into account recent case law on the transmission of certain collective agreements to a new employer. This letter describes the purpose of the TUPE rules, which are covered by the rules, the position of employer and worker in the event of transfer, dismissal and union recognition. In the United Kingdom, section 6 of the Transfer of Enterprises (Protection of Employment) Regulations 2006 is adopted in the United Kingdom. It states that any trade union recognized by the recognized trade union in respect of such workers is considered to be recognized by the transferor, provided that the transferred workers have an identity distinct from the rest of the worker`s enterprise. However, Rule 6(2)(b) adds that `any recognition agreement may be amended or repealed accordingly`. Autonomy must therefore be preserved for recognition under the Directive, while preserving one`s own identity under UK regulations. The question of autonomy has been examined by the Court of Justice of the European Communities. Collective agreements are usually negotiated between an employer and a union on issues such as remuneration, working time and conditions.

The new employer remains bound by the collective agreement in effect at the time of the transfer, but not by the amendments negotiated and agreed to by the outgoing employer after the date of the transfer if the new employer is not involved in the process. Collective agreements ensure that agreed changes in wages and benefits are directly effective for the workers represented in these negotiations. When workers move to a new employer under the TUPE, is the new employer bound by amendments to a conventional contract negotiated by the former employer after its transfer? Lawyer Pulina Whitaker is studying the impact of recent changes to TUPE. For employers, it is important to be sensitive to the transfer of collective agreements. They need to look not only at the legal implications of regulatory changes, but also at thinking about labour relations. Whether TUPE has the effect of tying new employers to changes agreed by the former employer under a collective agreement after the transfer has been the subject of much debate and litigation. Finally, on 18 July 2013, in the case of Alemo-Herron v Parkwood Leisure Ltd, the Court of Justice of the European Communities held that TUPE had a `static` effect rather than a `dynamic` effect. The amendments to the TUPE regulations were implemented on 31 January 2014 to take account of Alemo-Herron`s decision. .