New Obligations during the Information and Consultation Process in the Event of a Transfer of Undertaking

Context

Under Belgian employment law, whenever a transfer of undertaking occurs, specific information and consultation obligations arise, requiring employers to inform and consult employee representatives (i.e., Works Council or Trade Union Delegation or Committee for Prevention and Protection at Work) or to inform employees directly when no representation is in place.

The introduction of Collective Labor Agreement 32/8 of 17 December 2024 (CLA 32/8) brings changes to CLA 32bis, addressing a previous gap in Belgian labor law concerning the transferee’s involvement in social dialogue during a transfer of undertaking. These updates follow a recommendation issued by Belgium’s National Labor Council on 19 December 2023. The amendments enhance the involvement of the transferee (the new employer) in the information and consultation process, regardless of whether employee representation exists within the company. Below, we outline the new requirements.

Key Changes

At the request of the employee representatives or individual employees involved in the transfer:

• the transferor must communicate the content of the information and consultation to the transferee.

            o When employee representation exists, the communicated content includes the information provided to the employee representatives under CLA 9, CLA 5 or the Act of 4 August 1996, such as:

                    - The economic, financial, or technical factors that lead to and justify the transfer and about the economic, financial, and social consequences.

                    - The transfer and the social consequences ensuing from the transfer, including the impact on the employment of personnel, the organization of the work and the general employment policy.

            o When no employee representation is in place, the information to be provided aligns with the new Article 15/1 of CLA 32bis including:

                    - the date or intended date of the transfer.

                    - the reasons for the transfer.

                    - the legal, economic, and social consequences of the transfer.

                    - The measures envisaged in respect to the employees.

The information must be provided to the transferee timely, during the information and consultation process with the employee representation or individual employees, and prior to the transfer.

• the transferor must invite the transferee to introduce themselves to the employees or their representatives during the information and consultation process. This invitation must be issued in a timely manner, during the information and consultation process, and in any case before the transfer.

Entry into Force

The new obligations introduced by CLA 32/8 will come into effect on 1 February 2025, and will apply immediately to ongoing information and consultation procedures related to transfers of undertaking.

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Our Employment & Benefits Practice is closely monitoring these developments. If you have questions or wish to discuss this topic in further, please contact our team.