Brussels, 07/09/2011 (Agence Europe) -European law can prevent “transferred workers” from suffering a “substantial reduction in salary” by reason only of the transfer, even if these workers are employed by a public authority of a member state which is taken over by another public authority.
This is the gist of the ruling returned by the Court of Justice of the EU on Tuesday 6 September in Case C-108/10 in answer to questions from the Tribunale ordinario di Venezia. This court had been approached over the case of Ms Scattolon, whose 19 years of service built up as a member of the administrative, technical and auxiliary (ATA) staff in the services of the municipality of Scorzè (Italy) were not taken into account when calculating her pay after she was transferred to the services of the State ATA staff, where she was placed into a salary bracket corresponding to 9 years of service.
The Italian court asked the Court of Justice: - whether EU legislation on the maintenance of workers' rights in the event of the transfer of an undertaking applies to the takeover, by a public authority of a member state, of staff employed by another public authority; - if the answer to the previous question is yes, whether, when calculating the salary of transferred workers, the transferee must take those workers' lengths of service with the transferor into account.
In its ruling, the Court first of all found that the takeover by a public authority of a member state or staff employed by another public authority constitutes a “transfer of an undertaking” as per Directive 77/187/CEE (maintaining workers' rights in the event of the transfer of an undertaking), where that staff “consists of a structured group of employees who are protected as workers by virtue of the domestic law of that member state”.
As for the calculation of the salary of transferred workers, the Court considered that while it is permissible for the new employer (in this case, the Ministry of Education, Universities and Research) to apply, from the date of transfer, the working conditions laid down by the collective agreement in force with that company - including those concerning remuneration - the arrangements chosen for salary integration of the transferred workers must be in conformity with the aim of EU legislation on protection of the rights of transferred workers, in other words that of “preventing those workers from being placed in a less favourable position than before, solely as a result of the transfer”.
In this case, the Court emphasises, “where the transfer leads to the immediate application to the transferred workers of the collective agreement in force with the transferor, and where the conditions for remuneration are linked in particular to length of service”, the directive prevents transferred workers from suffering a substantial reduction in their pay “by reason of the fact that their length of service with the transferor, equivalent to that completed by workers in the service of the transferee, is not taken into account when determining their starting salary position with the latter”. It is for the national court to examine whether, at the time of the transfer at issue, there was such a loss of salary. (F.G./transl.fl)