Tupe Consultation Agreement
Since 2014, there have been potential exemptions from consultation rules for micro-enterprises with fewer than 10 employees. If there is no information and consultation, the labour court may be the subject of a complaint. If successful, the court may award the compensation it deems fair and equitable, given the seriousness of the employer`s failure, within the limit of 13 weeks` pay per worker concerned. Misinformation and advice can lead to joint and several liability between outgoing and incoming employers, although the transfer contract may take into account the distribution of responsibility. Dismissed workers may be entitled to severance pay. Employers must also ensure that the time required to consult with workers` representatives is granted. The right to severance pay is not affected by the fact that a worker is not entitled to unjustified severance pay. The outgoing employer is required to provide the arriving employer with written information about the transferred workers, including identity, age, employment data, disciplinary and complaint documents, workers` rights and collective agreements, as well as all related rights and commitments that are transferred. This information should not be provided less than 28 days before the transfer, although the new employer will in practice endeavour to obtain this information much earlier.
If an independent union has been recognized by the outgoing employer for the transfer of workers, recognition is also passed on to the incoming employer. Since 2014, tariff conditions can be renegotiated after one year, provided that they are generally no less favourable to the employee. Tariff conditions can be renegotiated after one year, provided that the overall contract is no less favourable to the employee. In certain circumstances, contractual changes made by the new collective agreements agreed by the outgoing employer are not necessary as a result of a transfer. If changes or proposed changes were to be made after the transfer, these “measures” would have to be discussed with the representatives of the staff concerned. The new employer is required to provide the outgoing employer with information on the proposed measures to enable the outgoing employer to meet its information and consultation obligations. There is no timetable for consultation, but it must be “good” before the transfer, and the larger the transaction and the staff involved, the longer the schedule. DUPE regulations preserve the terms and conditions of employees when a company or part of it is transferred to a new employer. Any provision of an agreement (whether an employment contract or not) is not applicable to the extent that it would exclude or limit the rights granted by the regulations.