Envisaging a corporate restructuring and transferring employees according to CBA No. 32bis?
Understanding the prior information and consultation obligations is vital for safeguarding the rights of employees in the framework of corporate (intra-group) restructurings.
- Verify if and when information and consultation formalities should be respected in case of corporate restructurings.
- Be aware that intra-group restructurings could also trigger information and consultation formalities.
- In Belgium, employee representative bodies and individual employees do not have a veto right with regard to the envisaged corporate (intra-group) restructuring.
Key takeaways
It should be assessed on a case-by-case basis whether a corporate (intra-group) restructuring will trigger the application of Collective Bargaining Agreement No. 32bis (CBA No. 32bis), which outlines specific prior information and consultation obligations for employers in the framework of a corporate (intra-group) restructuring.
Non-compliance with this legislation could trigger criminal or administrative sanctions, social unrest, negative publicity in the press, etc.
CBA No. 32bis aims to protect employees' rights in case of a change of employer resulting from the transfer of (part of) an undertaking. This Collective Bargaining Agreement ensures that employee representative bodies and/or individual employees are informed and/or consulted in a timely and thorough manner.
In this context, it is essential to understand that corporate restructurings, in the broadest sense – including intra-group restructurings – could trigger CBA No. 32bis.
The key elements with respect to these information and consultation obligations of CBA No. 32bis are:
Which corporate restructurings could trigger information and consultation obligations?
The information and consultation obligations must be complied with in the event of a transfer of (part of) an undertaking, including intra-group transfers, involving a change of the legal employer.
Various corporate transactions, such as mergers, demergers, contributions in kind, etc., could trigger these obligations.
Who should be informed and consulted?
Both the transferor and the acquirer must inform and consult the employee representatives in the works council. If no works council is established within the company, the trade union delegation must be informed and consulted, or in its absence, the committee for prevention and protection at work.
If no employee representative bodies are present within the company, the individual employees must (only) be informed directly.
About what should be informed and consulted?
The information obligation requires the employer to provide detailed information in order to enable the employee representatives or the individual employees to gain insight into the state of the company and the implications of the envisaged corporate (intra-group) restructuring.
The consultation obligation aims to foster a dialogue between the employer and the employee representatives, allowing them to ask questions and raise concerns.
In Belgium, employee representatives and individual employees do not have a veto right with regard to envisaged corporate (intra-group) restructurings.
In the context of a transfer of employees under CBA No. 32bis, the following information and/or consultation obligations could apply:
| Information obligation | Consultation obligation | |
In case a works council, trade union delegation or committee for prevention and protection at work is established |
|
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In case no employee representative bodies, nor a trade union representation is establised. |
|
|
When should the employee representative bodies or the employees be informed and/or consulted?
In case employee representative bodies are present within the company, the employee representatives must be informed and consulted in a timely manner (before signing) and in any case before any decision is made public.
In case no employee representative bodies are present within the company, the affected employees should be individually informed before the actual transfer date.
Action Points
- Ensure to map the prior information and consultation obligations while preparing the envisaged corporate (intra-group) restructuring.
- Adhere to the timeline for information and consultation obligations by creating a detailed step plan.
- Prepare the necessary information documents in advance, ensuring they are drafted in the correct language.
