European Restructuring Monitor (ERM)
Eurofound's ERM database on restructuring-related legal regulations provides information on regulations in the Member States of the European Union and Norway which are explicitly or implicitly linked to anticipating and managing change.
Articles 20 and 23 of CBA-Act (5 December 1968); Article 6 of CBA 32bis; Article 1 of CBA 6; Law 1996, Art. 69-76 . Koninklijk besluit waarbij algemeen verbindend wordt verklaard de collectieve arbeidsovereenkomst nr. 32/7 van 23 april 2019, gesloten in de Nationale Arbeidsraad, tot wijziging van de collectieve arbeidsovereenkomst nr. 32bis van 7 juni 1985 betreffende het behoud van de rechten van de werknemers bij wijziging van werkgever ingevolge de overgang van ondernemingen krachtens overeenkomst en tot regeling van de rechten van de werknemers die overgenomen worden bij overname van activa na faillissement (1)
Under the Belgian law, a transfer of undertaking applies to a transfer of 'an economic entity which will keep its identity after the transfer' (a 'going concern'). The act provides for the transfer of employment contracts without change if the economic entity continues to exist. However, as is stated in collective agreement 32bis, the transferee does retain the right to make reasonable changes to an employment contract but may not include conditions which are to the detriment of the transferred employees without agreement.
Specific criteria determining whether an undertaking will retain its identity following a transfer include:
The criteria mentioned above are investigated in order to evaluate to what extent they play a role in forming the identity of the company. If - considering these criteria - the company identity is deemed to remain intact after the transfer, the employment contracts can be transferred as well, without change.
Outsourced and contracted activities do not necessarily fall within the scope of the CBA no. 32bis and whether or not this is the case depends on the amount of the workforce transferred and on whether other 'identity' factors (managers, the way the business is organised, etc.) are affected as well.
Employment benefits are fixed and cannot be changed during the course of a transfer, however an explicit exception is made in regards to extra-legal benefit schemes (including invalidity) such as occupational company pension schemes.
All employees (all people attached by way of a labour/learning agreement, as well as people who deliver work performances and are under the supervision of the transferor without a labour agreement) are protected by the transfer, including self-employed persons who are in substance employees. Moreover, the Belgian courts apply the rule of a 'suspect period' whereby employees dismissed prior or after, but in close proximity to, the transfer may also claim against the transferee or transferor as appropriate. Employees who are being dismissed in response to the transfer and are able to prove the transfer is at the base of their dismissal are protected as well.
In general, it is up to the transferee and transferor to negotiate occupational pension agreements, except when they arise from a collective bargaining agreement. The transferee is also not obliged to take over employees' pension rights relating to periods of service performed before the transfer, although the transferee is (in general) obliged to provide some compensation. Vested rights, however, will be maintained in accordance with the transferor's occupational contract.
Collective agreements are covered by article 20 of the CBA act of 1968. This act states that in a case of business transfer 'the transferee must respect the CBAs by which the former employer was bound until these CBAs cease to have effect'. This is also subject to the level at which the CBA occurs (departmental, sectoral, etc.).
If the transferee and the transferred employees reside in different technical operating units (TOU), then a union delegation remains as it was prior to the transfer until the date when the contract would have normally ended. If the transferred employees become part of the transferee's technical operating unit, the works council for the transferee will function for both companies, unless otherwise agreed, until the following social elections.
The CA of 23 April 2019 introduced some changes to the measure: To open entitlement to this bridging allowance, it is required that the takeover of the assets and takeover of the staff be done within well-defined deadlines. The deadline for taking over the assets was shortened from 6 months to 2 months. However, as part of the negotiations on the takeover, this period can be extended twice more by 2 months. In addition, the deadline for taking over the staff is changed from 6 months to 4 months from the date of taking over the assets.
An area of legal uncertainty is the fate of a sector level CBA which has been concluded at the level of a branch of industry and is applicable to companies belonging to that branch. This situation can imply that the transferee must simultaneously adhere to the sector level CBA of two different branches of industry until the CBAs of the transferor cease to have effect. However, even if the transferee does not have to comply with the CBAs of the branch of industry to which the transferor belongs, individual normative provisions will be incorporated in the individual employment contract of the transferred employees in accordance with article 23 of the CBA Act of 5 December 1968.
Eurofound (2016), Belgium: Employment protection in relation to business transfers, Restructuring legislation database, Dublin, https://apps.eurofound.europa.eu/legislationdb/employment-protection-in-relation-to-business-transfers/belgium
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