In its judgment of 14 November 2016, the Court of Cassation drew attention to the prohibition against a transferee unilaterally modifying workers' rights in connection with a transfer of undertaking. This prohibition arises from article 7 of CLA 32bis, and remains applicable even when those rights are replaced by more favourable rights, without the individual written agreement of the workers concerned.
The conflict arises in the context of a conventional transfer of undertaking. Following the transfer, a worker is dismissed for serious reasons. The dismissed worker challenges this decision in court and, in this context, asserts that he has a right to a frequency bonus (for guarding duty), an annual wage increase and arrears of employer's premiums in a group insurance scheme. These three elements were part of his remuneration package while he was working for the transferor, but were replaced by other bonuses and advantages in the transferee's company. To support his claim, the dismissed worker invokes Collective Labour Agreement 32bis.
This Collective Labour Agreement deals with the safeguarding of employees' rights in the event of a change of employer after a conventional transfer of undertaking.
Article 7 of the CLA guarantees that the rights and obligations of the transferor under the existing employment agreement at the date of the conventional transfer of undertaking are, because of the transfer, transferred to the transferee. The dismissed worker claimed that he had a right to bonuses and wage arrears on this basis.
The decision of the Labour Court of Liège
The Labour Court held that the dismissed worker had failed to establish his claims. According to the Court, "the claimant cannot at the same time ask for the safeguarding of the old system and benefit from the new system" (free translation). The Court's reasoning is that one cannot have one's cake and eat it, by benefiting from new advantages provided by the transferee while keeping old advantages provided by the transferor.
The Court also found that the frequency bonus had been replaced by a higher daily bonus, that the remuneration increase had been replaced by a single bonus and a better wage package, and that the transferee's group insurance scheme was better than the transferor's.
The decision of the Court of Cassation
The Court of Cassation, in a very short judgment, annulled the appeal decision. According to the Court, article 7 CLA 32bis clearly states that the transferee cannot unilaterally modify wage conditions of the transferor without the individual written agreement of the worker concerned. The fact that the new wage system is more favourable is not relevant, according to the Court. Hence, it ruled that the worker is entitled to the frequency bonus and the wage increase that existed in the transferor's system.
An exception was, however, made in respect of the group insurance scheme: group insurance is excluded from the scope of CLA 32bis by its article 4, since group insurance is an entitlement to old-age benefits, including survivors' benefits, under supplementary schemes. Therefore, the transferee had the right to change the group insurance arrangements.
Consequences for legal practice
This judgment shows that employers must take extreme care regarding the safeguarding of employees' rights during a transfer of undertaking. Offering advantages that match or are even better than those which existed in the transferor's company is not enough. To avoid infringing article 7 of CLA 32bis, transferees will have to freeze the rights of workers unless there is individual written agreement from the workers concerned.