Business succession and the collective agreement in the absence of a replacement
Article 44 of the Workers’ Statute is, without a doubt, one of the provisions that have given rise to the most interpretations. This article regulates the rights and duties, of both the Company and the employees, in cases of business succession, that is, plainly speaking, in cases where one company takes on the workforce of another pursuant to a legal obligation.
One of the aspects that have been interpreted the most and that, strictly speaking, seemed the clearest, is that relating to the legislative framework applicable to the workers that joined the new company.
In this regard, article 44 establishes that “(…) the labor relationships of the workers affected by the succession shall continue to be governed by the collective labor agreement that was applicable at the time of the transfer at the business, workplace or independent production unit transferred. It shall remain applicable until the date of expiration of the original collective labor agreement or until such other new collective labor agreement as may be applicable to the economic entity transferred comes into force.”
That regulation is a true reflection of what is established in the EU Directive 2001/23/CE of March 12, 2001, which in turn was already established in Directive 77/187.
However, the clarity of the provision transcribed above has been blurred by subsequent interpretations made by our courts, and by the EU Court of Justice itself, and it can no longer be stated on no uncertain terms that once the original collective agreement has expired, the collective agreement of the transferee entity will apply to the employees transferred.
In this regard, the ECJ judgment of September 11, 2014 is certainly illuminating. According to that judgment, the conditions of the employees shall be maintained even if the collective agreement is maintained in the absence of a replacement, that is, where its initial validity has expired, it will continue to apply until a new one is published.
Therefore, further to the recent interpretation being made by the Supreme Court on the maintenance of collective agreements in the absence of a replacement, it may be concluded that even where the agreement regulating the employment relationships of the employees affected by the succession comes to an end, if that agreement is maintained in the absence of a replacement, it will continue applying to them, rather than the agreement applicable at the transferee, unless another new collective agreement that applies at the transferee takes effect.
Having stated the foregoing, the ECJ’s interpretation is the one already being made by our Supreme Court, as seen from its judgment of March 12, 2012.
Garrigues Labor and Employment Law Department