New obligations for employers on transfer of undertaking
On 17 December 2024, the National Labour Council added a new article 15/2 to cba no. 32bis. With this amendment, the social partners wish to inform and consult the concerned employee(s) representatives in a more qualitative and efficient way.
A. New obligations
a. Information obligation
i. Principle
During the procedure of a transfer of undertaking, the employer/transferor must now, at the request of the employee(s) representatives concerned, communicate the content of the information and consultation to the new employer. This is without prejudice to the fact that the new employer will also inform its own staff (through the relevant employee representative bodies) about the transfer of undertaking.
ii. Content
The information and consultation include, on the one hand, the information communicated to the works council, trade union delegation or committee following a transfer of undertaking. This information concerns the factors that originate and justify the transfer of undertaking and its social, financial and economic consequences. On the other hand, it is also about the content of the consultation with the same employee representative bodies regarding, among other things, the means to be used to avoid redundancies and mutations.
In the absence of any employee representative bodies, it is solely about the information communicated to the employees concerned in accordance with article 15bis (now article 15/1) of cba no. 32bis.
b. Invitation obligation
In addition, the employer/transferor will also have to invite the new employer to introduce itself to the employees concerned.
B. Timing of new obligations
The new employer must first be identified as the legal or natural person that will take over the role of employer for the employees concerned by the transfer. The employee(s) representatives can therefore only submit a request once the identity of that new employer has been definitively established.
As soon as the request is made by the employee(s) representatives, the employer/transferor must communicate the content of the information (and consultation) in a timely manner. For this purpose, it is irrelevant whether the new employer responds positively to the invitation request to introduce itself.
The communication of the information must be timely, meaning during the information (and consultation) of the employee(s) representatives, and before the transfer of undertaking takes place.
The invitation of the transferee/new employer must also be timely and in any case before the transfer of undertaking.
C. Entry into force
The new information obligation comes into force on 1 February 2025.
D. Action for employers
Employers will have to consider during an information and consultation procedure that employee representatives may make such a request, with the consequence that they will have to communicate the content of the information and consultation to the transferee/new employer in a timely manner and thus before the transfer of the undertaking and also invite them to introduce themselves.