Brussels, 02/11/2010 (Agence Europe) - With a ruling on 21 October on Case C-242/09, the Court considers that, when a company employs staff of a company bought up to carry out the same work in the same location, then it does not have the right to impose a lower salary or less favourable working conditions on the staff.
In this case, John Roest, employed in the catering services of the Heineken Nederlandse Beher BV (HNB) by the company of the same group, Heineken Nederland BV, had his income reduced by more than half when the group's activities were bought up by an outside company, Albron Catering BV. The latter had in fact only taken over the business while the staff had been “rented out”, without contract, to Albron by a limited liability company formed for this purpose by Heineken. Those concerned would have been fully entitled to enter the service of Albron but only by signing a new employment contract providing for far less favourable salary conditions.
When Roest and the FNB trade union referred the matter to the Gerechtshof te Amsterdam, that court judged that this transfer of activity between Heineken Nederland and Albron, on 1 March 2005, was a transfer of enterprise in accordance with Directive 2001/23 (maintaining workers' rights in the event of company transfer) and that the workers employed by HNB assigned to Heineken Nederland had entered Albron with full rights as of that date. They should, therefore, benefit from the same working conditions and salary as those they were entitled to before the transfer.
The Court of Justice of the EU, in response to the Amsterdam Court of Appeal, confirmed this judgement. It considered that, in the event of a transfer within the meaning of Council Directive 2001/23/EC on the approximation of the laws of member states relating to the safeguarding of employees' rights in the event of transfers of undertakings of an undertaking belonging to a group to an undertaking outside that group, it is possible to regard as a “transferor” the group company to which the employees were assigned on a permanent basis without however being linked to the latter by a contract of employment, even though there is within that group an undertaking with which the employees concerned were linked by an employment contract. The Court therefore recognised the transfer to Albron (as “transferor”) of the rights and obligations (mainly relating to salary) of workers transferred. This ruling could become case-law and give rise to a fair number of appeals in similar cases. (F.G./transl.jl)