The collective bargaining agreement (‘collectieve arbeidsovereenkomst’) “CAO 32bis” which has been safeguarding employees’ rights since 1985 in the event of a change of employer as a result of a transfer of business following an agreement (‘asset deal’), has been amended by a decision of December 17th, 2024. This amendment, which results in a new article 15/2 in the “CAO 32bis” will take effect as of February 1st, 2025.
Current Key Obligations under CAO 32bis
When a business is transferred through a contractual agreement (i.e. a transfer of an economic entity that retains its identity – ‘asset deal’), employees connect to that business automatically transfer to the purchaser, retaining their existing employment terms and conditions. Both the seller and the purchaser are required to inform and consult the employee representatives (works council or trade union delegation) in advance. If there are no employee representatives, the employees involved in the transfer must be informed directly. The seller and the purchaser are jointly and severally liable for the payment of debts existing at the time of the transfer (e.g., wage arrears, bonuses) that arise from the employment contracts in force at that time, except for debts related to supplementary social security schemes.
New information requirements as of February 1st, 2025
As of February 1st, 2025, additional information obligations willy apply. Employees (or their representatives) affected by such transaction can request that the seller (1) shares with the new employer (i.e. the purchaser) specific information concerning what was communicated to the employees regarding the anticipated transaction and (2) invites the purchaser to introduce himself to the employees (or their representatives) before the transaction takes place.
Once the request has been made by the employees (or their representatives), the content of the information and consultation must be shared with the purchaser in all cases, regardless of whether the purchaser has responded positively to the seller’s invitation.
The information referred to may include i.a. the transaction date, the legal, economic and social consequences of the transaction, and any measures considered concerning the employees (or their representatives).
Goal
The National Labour Council (‘Nationale Arbeidsraad’) aims to establish an effective and high-quality process for informing and consulting employees (and their representatives) while balancing business interests with workers’ rights. This new information requirement for the purchaser allows the concerns of the employees (or their representatives) to be discussed and, if possible, resolved proactively. Transparent communication is key.
Conclusion
All purchasers intending to enter into an asset deal will need to address and incorporate these new information obligations in their transaction process.
The Nuans M&A team remains readily available to provide you with proactive guidance and tailored advice at all times.
