The force of CLA 32 bis
The terms and conditions of employment of employees are not called into question when a new owner comes on the scene following a takeover. Thanks to CLA 32 bis (dated 7 June 1985) the buyer of the company automatically becomes the new employer of the employees in question. This means that they also have to respect the existing employment contracts. It should be stressed that CLA 32 bis was concluded in the National Labour Council and therefore applies to takeovers in any sector. The size of the acquisition or the size of the company or department does not matter.
What does CLA 32 bis mean in practice? The new owner has to pay employees exactly the same wage as before the takeover. They also have to respect their seniority, working times, work location and their status as labourer or employee. This also explains why no new formal employment contract needs to be concluded following a takeover. All terms and conditions of employment are simply transferred.
Possibilities for the buyer
Case law states that some ‘flexibility’ is expected from the transferred employees, given the specific context of a takeover. Certain changes to their function must be accepted, as long as this does not equate to a demotion. As regards the work location, the rule is that any changes cannot have too great an impact on the employee’s commute. The pain threshold following the takeover is an additional travel time of one hour in the morning and one hour in the evening.
Obligations for the employee
CLA 32 bis also contains obligations for employees, which are linked to the transferred activity. They are obliged to go along with the new employer. An employee who refuses to go along is in breach of contract and will have to pay compensation to the new owner for breach of contract. In practice, this principle sometimes causes problems for employees, who work simultaneously for several departments and only one of those departments is involved in the takeover. They only need to go along if more than 50% of their working time is spent working for the transferred department.