Transfers Of Undertakings Research Articles

To hire or not to hire: the ambivalent impact of social rehire clauses on the Transfer of Undertakings Directive

Most EU countries are experiencing an increased use of Collective Labour Agreement clauses – Social Rehire Clauses – that oblige incoming service providers, while taking over a service, to employ all or part of outgoing providers’ personnel or at least give these workers priority future hiring. In the established case law of the Court of Justice, rehiring personnel is considered a crucial element, which may trigger the application of Council Directive 2001/23 on transfers of undertakings. This article defends the need to keep Social Rehire Clauses outside the material scope of the Directive, in order to respect social partners’ collective autonomy and prevent opportunistic behaviours, while promoting a fair competition between employers. Constitutionally justified under Article 3(3) TEU, and Articles 9, 147 and 151(1) TFEU, the protection of employment pursued by Social Rehire Clauses should be interpreted as legitimate limitation to the economic freedoms enshrined in the Treaties and the Charter of Fundamental Rights.

Novedades jurisprudenciales en materia de transmisión de empresa: la labor del TJUE y del TS en los últimos dos año

Una institución que ha originado una notable atención en los últimos años es la de la transmisión de empresa. En efecto, aún tratándose de un tema “tradicional” en el Derecho del Trabajo, asistimos a una especie de “interés renovado” por el mismo que seguramente derive de los pronunciamientos judiciales dictados en la materia y que han aportado nuevas perspectivas de análisis, tanto desde una óptica general, como desde otra más específica. El objeto de este trabajo se dirige a dar cuenta de las principales “novedades jurisprudenciales” habidas en este terreno

Case C-416/16. Transfers of undertakings

Case C-416/16. Transfers of undertakings

Studies in Convergence? Post-Crisis Effects on Corporate Rescue and the Influence of Social Policy: The EU and the USA

The financial crisis and the sovereign debt crisis that it precipitated in a number of peripheral EU Member States heralded massive changes in insolvency, corporate rescue and employment protection policies. The US and the EU both suffered greatly in the wake of the crisis, but their recoveries have occurred along very different tracks. The US has managed to regain much of its position in terms of relative growth and the UK has outpaced the recoveries of those European countries that are members of the European Monetary Union. The purpose of this treatise is to explore the context of the 2007-2008 financial crisis in the US and in the EU, its impact on legal reform in corporate rescue and restructuring and those aspects of social policy implicated within insolvency systems (notably collective redundancy and transfers of undertakings), whether or not the corporate rescue and employee protection systems can be seen to be converging, in view of the different socio-economic, political and cultural aspects of the US and the EU, such convergence might be beneficial or, indeed, possible.

Studies in Convergence? Post‐Crisis Effects on Corporate Rescue and the Influence of Social Policy: The EU and the USA

AbstractThe financial crisis and the sovereign debt crisis that it precipitated in a number of peripheral EU Member States heralded massive changes in insolvency, corporate rescue and employment protection policies. The US and the EU both suffered greatly in the wake of the crisis, but their recoveries have occurred along very different tracks. The US has managed to regain much of its position in terms of relative growth and the UK has outpaced the recoveries of those European countries that are members of the European Monetary Union. The purpose of this treatise is to explore the context of the 2007–2008 financial crisis in the US and in the EU and its impact on legal reform in corporate rescue and restructuring as well as those aspects of social policy implicated within insolvency systems (notably collective redundancy and transfers of undertakings). It will also consider whether or not the corporate rescue and employee protection systems can be seen to be converging, and whether, in view of the different socio‐economic, political and cultural aspects of the US and the EU, such convergence might be beneficial. Copyright © 2015 INSOL International and John Wiley & Sons, Ltd.

Business Freedoms and Employment Rights in the European Union

AbstractIn this article, I explore the substance and operation of Article 16 of the European Union’s Charter of Fundamental Rights, which recognises ‘the freedom to conduct a business’, in order to determine the extent to which the constitutionalisation of commercial interests as fundamental rights could pose a threat to the Union’s worker-protectiveacquis. Having surveyed three important Directives which regulate employees’ rights in transfers of undertakings, collective redundancies, and the organisation of working time, I argue that future challenges based on Article 16 CFR are unlikely to succeed: even in situations where the Directives limit employers’ economic freedoms, such interference is justified and proportionate.

The Court of Justice of the European Union and Transfers of Undertakings

The Acquired Rights Directive has been the subject of much litigation before national courts and the Court of Justice of the European Union since it was adopted in 1977. Its underlying purpose has been to safeguard employees' rights in cases of transfers of undertakings. The CJEU's decision in Case C-426/11 Alemo-Herron v Parkwood Leisure Ltd, Judgment of 18 July 2013, however, marks a significant shift in the CJEU's approach to the Directive from one which seeks to protect employment rights in the case of a transfer to one which requires a balance to be struck between the interests of the transferee and the employee. In doing so, the judgment has the potential to have serious ramifications for British and European labour law.

Freedom of Contract as a General Principle of EU Law? Transfers of Undertakings and the Protection of Employer Rights in EU Labour Law

Freedom of Contract as a General Principle of EU Law? Transfers of Undertakings and the Protection of Employer Rights in EU Labour Law

Employee Rights on Transfer of Undertakings: Italian Legislation and EC Law

Abstract: The authors examine the conformity with Community law of the recent regulatory changes introduced to the Italian legal system regarding the safeguarding of employees' rights during transfers of undertakings. The investigation takes place on the assumption that the principle of primacy of Community law applies, which first and foremost means that it must be verified whether the domestic legislation in question complies with the interpretation given to the relative provisions of Community law. According to the authors' opinion, domestic law could be judged as non‐conforming to the interpretation that has been given by the Court of Justice, so that the question may be brought before the Court of Justice ex Article 226 EC or by recourse to the preliminary ruling procedure under Article 234 EC, which reveal cases of incorrect implementation of the Directive.

The Legal Position of Employees’ in Cross-Border Transfers of Undertakings in the EU: A Question of Jurisdiction and Choice of Law

Abstract: The EC Transfer of Undertakings Directive (2001/23/EC) aims to protect the position of employees in the case of a transfer of undertaking. This paper discusses the way in which the Directive is to be applied to cross-border transfers of undertakings. The analysis indicates that, in principle, the Directive is applicable to such transfers. Since the Directive must be implemented under national law, this involves different national rules for transfers of undertakings, even if they are harmonised to some extent. As a result, one key issue concerns which country?s law is to apply and which country?s courts have jurisdiction to hear disputes arising from cross-border transfers.

Light acquired on acquired rigths: Examining developments in employment rights on transfers of undertakings

Light acquired on acquired rigths: Examining developments in employment rights on transfers of undertakings

Transfers of Undertakings and the Protection of Employment: The UK Courts and the European Court of Justice 1981?2004

Transfers of Undertakings and the Protection of Employment: The UK Courts and the European Court of Justice 1981?2004

For better and for worse: transfer of undertakings and the reshaping of employment relations

During the 1980s, the number of transfers of undertakings has doubled every three years at EU level, accounting for 40 per cent of the global number of business transfers. Yet limited research has been carried out to investigate how terms and conditions of employment and other work-related experience may have changed for the workers who have been transferred from the transferor employer to the transferee employer. Although relevant legislation (TUPE Regulations) is in place with the objective of protecting these workers' employment rights, the effectiveness of the regulations has proved less than convincing. The intention of this paper is to explore, through an in-depth case-study approach, the wider issues concerning employment relations and experience of work in the context of transfers of undertakings. This paper argues that TUPE provides only limited protection for the rights of the transferred workers with the transferee. When a transfer of an undertaking takes place, the employment relationship between the transferee and the transferred workers will be different even if the explicitly defined contractual terms and conditions remain unchanged.

Insolvency and employment protection: the mixed effects of the Acquired Rights Directive

The statutory protection provided by European Community law to employees during transfers of undertakings and other restructurings has been criticised on the grounds that it undermines insolvency procedures and interferes with the ‘rescue’ process. We present an analysis which suggests that granting employees rights of this kind may be an efficient means of recognising their firm-specific human capital. Case-study evidence is then presented to show that while in some situations employment rights may obstruct reorganisations, in others they allow employee interests to be factored into the bargaining process in such a way as to enhance the survival chances of enterprises undergoing restructuring. The law functions best when effective mechanisms of employee representation are in place and when the conditions under which employees’ acquired rights can be waived in the interests of preserving employment are clearly specified.

Recent Developments in the Law Relating to Transfers of Undertakings

Recent Developments in the Law Relating to Transfers of Undertakings

Fairness at Work: A Critical Analysis of the Employment Relations Act 1999 and Its Treatment of Collective Rights

Introduction: the case for the pressures on New Labour - no going back, a flexible and efficient labour market, appeasing the employer and trade union lobby the solution presented by - its dimensions - who are the partners?, the centrality of individual choice, the voluntary aspect of partnership, partnership as a non-confliction relations, rights and responsibilities the application of these principles in the Employment Relations Act 1999. Individual rights to freedom of association: introduction the right to be accompanied in disciplinary and grievance hearings - the content of the right, support for trade unions?, improving workplace relations? protection from blacklisting - weaknesses of the blacklisting provisions, strengthening freedom of association? protection for trade union members against discrimination - the Wilson/Palmer litigation, acts versus omissions, incentives to contract out of collective bargaining protection for workers in the recognition process rights of striking employees to protection from unfair dismissal - participation in industrial action after the Tory years, circumscribed New Labour protection, implications for partnership conclusion. Trade union autonomy: introduction independence of trade unions under international and domestic law democratic procedures within trade unions - historical background, international labour standards, the refusal to return to self-regulation scrutiny of trade union governance - CRTUM, CPAUIA and the Certification Officer, the rationale for reform conclusion. Trade union recognition and derecognition: introduction historical and political context - mistakes of the past - the historical legacy, the joint statement of the TUC and CBI - the political trade-off the content of Schedule A1 - procedures for achieving trade union recognition and derecognition, the consequences for collective bargaining, enforcement of the collective agreement relating to terms and conditions of employment, the institutional actors in the statutory recognition procedure conclusion - the implications of Schedule A1. Industrial action: introduction the failure to introduce a positive right to strike trade union responsibility for protection from dismissal the scope of statutory immunity for trade unions - the lawful aims of industrial action, changes to balloting and notification requirements conclusion. A revised role for trade unions - information, consultation, representation and partnership: introduction information and consultation of recognised trade unions - training, transfers of undertakings and collective redundancies, European Works Councils trade unions to accompany individuals the partnership fund conclusion. Conclusion: new labour's - the role envisaged for trade unions. (Part Contents).

New Transfer Regulations

The Transfers of Undertakings (Protection of Employment) Regulations 1981 transposed the Acquired Rights Directive into UK law. The Regulations have been amended four times and have been the subject of much litigation. As a result of amendments to the Directive they are to be amended yet again. The latest changes attempt to introduce certainty of application and widen their impact. The Government's stated aim in reforming the Regulations is to ensure that they operate as effectively as possible for all those whose interests depend upon them. This article considers the proposed changes in the light of the litigation and considers whether they are likely to be effective.

New Transfer Regulations

The Transfers of Undertakings (Protection of Employment) Regulations 1981 transposed the Acquired Rights Directive into UK law. The Regulations have been amended four times and have been the subject of much litigation. As a result of amendments to the Directive they are to be amended yet again. The latest changes attempt to introduce certainty of application and widen their impact. The Government's stated aim in reforming the Regulations is to ensure that they operate as effectively as possible for all those whose interests depend upon them. This article considers the proposed changes in the light of the litigation and considers whether they are likely to be effective.

Italian Courts, the ECJ and Transfers of Undertakings: A Multi‐Speed Dialogue?

The paper seeks to analyse certain paradigmatic cases of dialogue—or, indeed, non‐dialogue—between national judges and the ECJ, though within the (still possibly emblematic) limits of a focus on the law on the transfer of undertakings. The analysis is less concerned with portraying the detailed impact of the ECJ’s decisions on the domestic legal order, and is focused more upon the ‘modality’ of the dialogue to date carried out between Italian and European judges. The logic, which guides this dialogue (or, the lack of its evolution), furnishes us with a better understanding of the production, circulation and impact of ECJ jurisprudence. This dialogue seems to be characterised, by non‐uniform, or multi‐speed, developments. On the one hand, Article 177 references have been concentrated around the theme of undertakings in critical difficulties or subject to a creditors’ arrangement procedure. In this area, the Italian courts have engaged in explicit dialogue with the ECJ and have made the greatest effort to read—not without some technical‐juridical struggle—the national norm in the light of the provisions of the Acquired Rights Directive and its interpretation by the ECJ. By contrast, however, with regard to other specific issues (in particular, those concerning subcontracting) it is apparent that not only were the Italian courts (and the Corte di Cassazione in particular) loathe to enter into direct dialogue with the ECJ, but also that the ECJ’s jurisprudence, built up through dialogue with other national courts, was not even consulted in an effort to guarantee an interpretation of national norms, in conformity with Community law.

Transfers of undertakings a new meaning?

Defining the meaning of a transfer of an undertaking in the context of outsourcing has led to much litigation. After years of discussion the Acquired Rights Directive, which has been the source of much confusion and misunderstanding, has been amended. Unfortunately, the new Directive does little more than follow the approach of the European Court of Justice and has done little to make matters more certain. This article examines the change of definition and argues that they are inadequate.