The rights of workers in the event of transfers of undertakings : European Law and its application.

Abstract

This thesis examines employees rights under Council Directives 2001/23/EC of the 12 March 2001, on the approximation of the laws of the Member States on the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses. This Directive replaced Council Directive 77/187/EEC of 14 February 1977, as amended by Council Directive 98/50/EC of 29 June 1998. The rights to which particular reference has been made are those of employees to remain in employment with the new employer in case of transfers, the right to retain employee representatives, as well as the right to information and consultation. A link has been drawn between the rights of employees, and the respective obligations of employers, under the Directives on transfer of undertakings, and the rights of information and consultation under the proposal on the establishment of a general framework for informing and consulting employees. The thesis provides a very detailed examination of the case law of the European Court of Justice on the transfer of undertakings, which case law prompted the 1998 amendments to Council Directive 77/187/EEC. The thesis also briefly examines English Law on the transfer of undertakings, and in particular, the way in which the Directive was incorporated into English Law by means of the Transfer of Undertakings (Protection of Employment) Regulations 1981. The thesis also gives a brief outline of the current position of workers under Maltese Law in the event of the transfer of the undertaking in which they are employed. Suggestions for the amendment of Conditions of Employment (Regulation) Act 1952 in order to bring this law into line with Council Directive 2001/23/EC were also made. However, it is important to note that at the time of writing, no information regarding the form that the amendments to Maltese employment legislation would take, was available to the public. One should also be aware that, owing to restrictions of space, this thesis does not explore the possibility of applying the Directive to cases where the undertakings to be transferred are in a position of insolvency - matter which is left up to the Member States to decide. It is currently unknown what position the Maltese legislator intends to adopt in this regard.