Tag archives: transfer of a business

What implications does a change in the ownership of a business have for employment?

In Quebec, many legal consequences must be considered when the alienation or concession of a business occurs, especially those that are related to labour relations. More specifically, what implications does a transfer as such have on the alienated or licenced business’ employees? In order to answer this question, it is of utmost importance to first determine whether the relevant situation occurs in a unionized environment or not.

Unionized employees

If the employees that work for the alienated business are unionized, section 45 of the Labour Code[1] is henceforth applicable and provides that the alienation or the operation – by … Continue Reading

What are the employment implications of the transfer of a business?

Principle and scope of application

French employment law, pursuant to European legislation, contains measures that are aimed at protecting employees in the context of a transfer of a business (TUPE provisions).

In this respect, French law provides that “if there is a change in the legal status of an employer such as a succession, sale, merger, change in structure of the business or a transformation into a company, all the contracts of employment existing on the day of the change will continue to exist between the new employer and the staff of the previous employer”.

In this context, … Continue Reading

What are the employment implications of the transfer of a business in Germany?

The employment implications of the transfer of a business are regulated by sec. 613a German Civil Code (Bürgerliches Gesetzbuch – BGB). A transfer of a business takes place where an economic entity is transferred by a legal transaction and the economic entity is continued by the new owner of the business.

In order to determine whether such continuation occurs the courts have set various criteria,depending on the nature of the business being transferred. For example, where the business creates most of its value from the operation of machinery (e.g. an automobile plant), the transfer of those machines is normally the … Continue Reading

What are the employment implications of the transfer of a business in the US?

When a buyer acquires the assets of another company, both the buyer and the seller must focus on federal and state laws in the United States which impact on employees who transition on the sale of the business.  For example, if a sufficient number of employees are affected, the federal Worker Adjustment and Retraining Act (“WARN”) may require the seller to provide 60 days’ notice to those individuals who might experience a job loss, to a union if they are represented, and to agencies of the state and locality in which they work.  Some states have comparable notice and compliance … Continue Reading

Transfers of employment – Fair Work Commission cannot be used for advisory opinions

The Fair Work Act 2009 (Cth) (the FW Act) provides that in a case of “transfer of employment”,  the enterprise agreement (the name given in Australia to collective labour agreements) that applied to an employee in his/her former employment will continue to apply, subject to any order to the contrary made by the Fair Work Commission (Commission).

A party can apply to the Commission for such an order when there is or is “likely to be” a transfer of employment.

Two recent decisions of the Commission suggest that where an application is brought, before the transaction resulting in the … Continue Reading

Transfer of business provisions in numerous modern awards to be amended to fix NES inconsistencies

A Full Bench of the Fair Work Commission has ruled that provisions dealing with the transfer of employment and service for annual leave purposes which are contained in 11 Australian modern awards must be amended because the provisions are inconsistent with the National Employment Standards (NES) contained in the Fair Work Act 2009.

The decision was handed down as part of the Full Bench’s review of modern award terms which are inconsistent with the NES, as part of the Commission’s 4 yearly modern award review process.

Generally, where there is a “transfer of business” between two companies (that … Continue Reading

More changes to UK law – the transfer of undertakings legislation.

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 come into force in the UK on 31 January 2014.  These 2014 Regulations amend TUPE (which implements the Acquired Rights Directive in the UK) and the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (relating to collective redundancy consultation).

The 2014 Regulations:

  • Amend TULRCA, to allow a transferee who proposes collective redundancies, to elect to consult or to start to consult transferring staff about the collective redundancies prior to the transfer.  The change means that any pre-transfer consultation will count towards the 30 or 45 day
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