New information and consultation obligation for a transfer of undertaking

The employer and employee organisations in the National Labour Council have added a new chapter to the well-known CBA 32bis on the safeguarding of employees’ rights in the event of a transfer of undertaking. From now on, the employee representatives, or in the absence of a representative body, the employees themselves, can request that the transferor (i.e. the ‘old’ employer) communicates to the transferee (i.e. the ‘new’ employer) the content of the information (and consultation) documentation during the information (and consultation) process, and invites the transferee to introduce itself to the employees’ (representatives). These new rules will enter into force on 1 February 2025.

Introduction

If a restructuring or corporate transaction qualifies as a so-called ‘transfer of undertaking’, then the transferor and the transferee have the obligation to inform and consult with their respective works council, or, in its absence, with the trade union delegation, or, in the absence of a trade union delegation, with the committee for prevention and protection at work. In the absence of any representative bodies, the employees must be informed (not consulted) directly.

There is a ‘transfer of undertaking’ within the meaning of the Acquired Rights Directive (‘ARD’) and its Belgian implementing legislation, the CBA n° 32bis, where there is a transfer of an ‘economic entity’, meaning an organised grouping of resources that has the objective of pursuing an economic activity, that retains its identity post-transfer. This will, for instance, be the case with an ‘asset deal’, but not with a ‘share deal’.

The CBA n° 32bis has recently been amended to add new obligations for the transferor during the information (and consultation) process.

What’s new?

In the event of a transfer of undertaking, the employee representatives in the works council, the trade union delegation or the committee for prevention and protection at work can now also request that the transferor (i.e. the ‘old’ employer):

• communicates to the transferee (i.e. the ‘new’ employer) the content of the information (and consultation) documentation, and
• invites the transferee to introduce itself to the employees’ representatives.

In the absence of any representative body, the transferor must share such information with the transferee and invite the latter to introduce itself at the request of the employees concerned by the transfer.

The employees or their representatives can only make a request to inform and invite the transferee if the identity of the transferee, who will acquire the capacity of the employer of the employees to be transferred, is known and certain.

Once the request has been made by the employees’ (representatives), the content of the information (and consultation) documentation must be provided to the transferee in all cases, and thus whether or not the transferee has responded positively to the transferor’s invitation to introduce itself to the employees’ (representatives).

The transferor’s informing and inviting of the transferee must take place in a timely manner, i.e. during the information (and consultation) procedure and before the actual transfer of the employees takes place.

Which transactions are in-scope?

The new rules apply to all transactions falling under the scope of Chapter II of the CBA n° 32bis, i.e. in the case of any change of employer following a transfer of undertaking based on an agreement, and so exclude any bankruptcy procedures that fall under the scope of Chapter III of the CBA n° 32bis.

When will the new rules enter into force?

The new rules will enter into force on 1 February 2025.

ALTIUS’ employment team is available to assist and guide employers through any restructuring, including providing practical advice and assistance with the information and consultation process. If you would like further information regarding this topic, then please contact Philippe De Wulf (Philippe.DeWulf@altius.com) or Emma Van Caenegem (Emma.VanCaenegem@altius.com).

Written by

• Esther Soetens

  Counsel