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Transfer of undertakings. Effects on employees’ rights.
European Union Commission Report
The European Union Commission Report regarding Council Directive
2001/23/CE of 12 March 2001 analyzes the Directive in light of the
experience gained, and in particular, the case law of the European Court of
Justice. (More information)
Employees’ health and safety. National reports on the practical application of the Community rules. Harmonisation of the frequency of their presentation
Directive
2007/30/CE of 20 June 2007 harmonises the frequency of the presentation of
reports on practical application that each Member State must submit to the
Commission on the application of the Community rules regarding safety and
health of the employees. (More
information)
Whistleblowing. Personal data protection. Enquiry put to the Spanish Data Protection Agency
Enquiry put
to the Spanish Data Protection Agency on whether or not the whistleblowing system, that it planned to implement in a
company, was in accordance with Organic Law 15/1999 of 13 December on
personal data protection. (More
information)
Transfer of
undertakings. Effects on employees’ rights. European Union Commission Report
European Union Commission Report regarding Council
Directive 2001/23/CE of 12 March 2001 (hereinafter, the “Directive”) on
Member States’ legislation on maintaining employees’ rights in the event of the
transfer of undertakings
The
European Union Commission report (hereinafter, the “Report”) analyses the
Directive in the light of the experience gained, and in particular, the case
law of the European Court of Justice. The Report also takes into account the responses
of the Member States and the social partners to the questionnaire that the
Commission sent them.
The Report
highlights that the Directive establishes the definition of an economic
entity (companies, workplaces or parts of companies or workplaces that form an
organised set of resources that allow the carrying out of an economic
activity) and the requirements to carry out a transfer of undertaking,
namely; (i) the change of employer and (ii) maintaining
the transferred entity’s identity.
The Report
also indicates that the scope of the territorial applicability of the Directive
depends on whether the company to be transferred is in a Member State or a member
of the European Economic Area.
The transferee
will subrogate to the rights and obligations that the transferor had with the
transferred employees, and the latter will be free of them unless the Member
States agree otherwise (such as Spain).
The collective
bargaining agreement applicable to the transferred economic entity will be that
which is in force at the moment of the transfer and the working conditions
must therefore remain the same until the expiration date thereof. The Member
States may limit the period during which the conditions must not be modified (Spain
does not provide any limitation).
The
Report states that the transfer of undertakings will not affect the rights of
employees regarding retirement benefits, incapacity or permanence of inter-professional
or professional complementary rules other than the mandatory social security rules
of the Member States, unless provided otherwise by the Member States, such as
Spain.
The Directive
prohibits dismissals where the only reason given is the transfer of
undertakings. However, it does not prohibit dismissals for economic,
technical or organisational reasons. Note that in Spain this protection does
not affect senior executives.
In the
event that the employee does not wish to continue working for the transferee,
the Member States may determine the outcome of such relationship. In Spain,
the employee is deemed liable for the termination of a contract.
The
employee representatives will maintain their status if the transferred entity
maintains its autonomy.
The
transferor and the transferee must report to the employee representatives on
a general basis. A consultation period is foreseen when measures concerning
employees are adopted. This obligation may be limited by the Member States.
Employees’ health
and safety. National reports on the practical application of the Community
rules. Harmonisation of the frequency of their presentation
Directive 2007/30/CE of the European
Parliament and the Council of 20 June 2007 which modifies Council Directive
89/391/CEE, its specific Directives and Council Directives 83/477/CEE,
91/383/CEE, 92/29/CEE and 94/33/CEE, with the aim of simplifying and
rationalising the reports on its practical application. Official Journal of
the European Union of 27 June 2007
Directive 2007/30/CE of the European Parliament and Council of 20 June
2007 (hereinafter,
the “Directive”) harmonises the frequency of the presentation of reports on
practical application that each Member State must submit to the Commission. Only
one report must be presented, which will contain a general chapter applicable
to all the health and safety directives and specific chapters for the different
aspects of every Directive.
The
report must be filed before the Commission every five years and when drafting
it an official questionnaire compiled by the Commission must be used.
Whistleblowing. Personal data protection. Enquiry put to the
Spanish Data Protection Agency
In this enquiry put to the Spanish Data
Protection Agency (hereinafter the “Agency”) a Company asked if the whistleblowing system that it planned to implement was in
accordance with Organic Law 15/1999 of 13 December on personal data protection.
The
Agency held that it is not necessary to obtain the consent of employees in
order to handle their personal data provided if they are fully aware that the
whistleblowing system exists. Likewise the whistleblowing system must relate only to labour aspects,
and must specify the actions that are the object of the accusation as well as
the laws, internal rules or codes of ethics to which the accusations refer.
Proportionality
must always be present in the whistleblowing system
and anonymous accusations must be avoided. Note that the accused cannot be
informed about any of the accuser’s details.
The
accused must be informed about (i) the recording of
all his details (ii) the responsible entity for the whistleblowing
system (iii) the facts for which he is accused (iv) the departments and
services within his company or the companies of the group that may receive
the report and (v) how to exercise his rights of access and correction.
The data held
must be deleted within two months following the end of the enquiry.
The
Agency must be notified about the handling of the data in order to record it
in the Data Protection General Registry.
The information
contained in this Newsletter is of a general nature and does not constitute
legal advice