# TUPE- Company take overs Employees rights re Terms & condition



## Employee

Hi

I work for a financial company that are getting taken over

There are different terms and conditions for each company

Where can I find out about employment law or what I would be legally entitled to

Also we dont have a union as most 'foreign' financial companies dont

Is there any I could contact or are they worth it ?

Cheers

Employee


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## Statler

*Re: Company take overs Employees rights re Terms & condi*

Might be something useful in these links:

[broken link removed]


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## judge

*Re: Company take overs Employees rights re Terms & condi*

we have the same kind of situation in our place. company taken over a few months ago. what i can say is that your t's&c's are protected in the move. We had an employee forum and most of these issue were teased out. The protection comes under somthing called tupee (not sure of spelling). Had a quick look on oasis.irlgiv.ie but cant see anything. Hope this helps.


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## Guest

*Company take overs Employees rights re Terms & condition*

The DETE employment rights website alludes to the relevant legislation and the rights enshrined therein:

www.entemp.ie/employment/....htm#trans

If in doubt about your statutory employment rights in situations such as this it's worth contacting DETE for clarification. They are very helpful.


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## ajapale

*Transfer of Undertakings - Protection of Employees ToUPE*

<> is correct -  the DETE is the best place to go.

Transfer of Undertakings - Protection of Employees is some times abbreviated to ToU-PE. I've cut and pasted some relevant paragraphs here.



> Transfer of Undertakings - Protection of Employees
> (European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003)
> 
> What is a Transfer of Undertakings?
> Transfer means the transfer of an economic entity, which retains its identity Economic Entity means an organised grouping of resources, which has the objective of pursuing an economic activity, whether or not that activity is for profit or whether it is central and ancillary to another economic or administrative entity.
> 
> What Rights does an employee involved in a transfer have?
> Transfer of Contractual Rights/Obligations
> The Regulations provide that the rights and obligations of the original employer ( "the transferor" )  arising from an employment contract existing at the date of a transfer shall, by reason of such transfer, be transferred to the new employer ( "the transferee" ) . Furthermore, the transferee must continue to observe the terms and conditions agreed in any collective agreement on the same terms as were applicable to the transferor under that agreement until the date of termination or expiry of the agreement or the entry into force of another collective agreement.
> 
> What must an employer do?
> Information and Consultation:
> Both the original and new employers are obliged to inform their respective employees' representatives of the date of the transfer, the reasons for the transfer and the legal, social and economic implications of the transfer. This must be done, where reasonably practicable, not later than 30 days before the transfer date, and in any event in good time before the transfer is carried out (or in the case of the transferee, in good time before the employees are directly affected by the transfer regarding conditions of employment). Details of any measures envisaged in relation to the employees must be discussed with the employees' representatives "with a view to reaching an agreement". Where there are no representatives, the employers must arrange for the employees to choose representatives for this purpose.



ajapale


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## Employee

*Transfer of Undertakings - Protection of Employees ToUPE*

Thanks

Can they give and take ?

i.e one company has free bus travel the other does not. Also one has non-cont pension the other does not

Can they say you can keep free travel but you have to pay for your pension ?

In the end should there be any economical loss to the employee ?


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## penang

*Transfer of rights*

Watch the pension situation.  I was tuped last year and there is no provision for any pension transfer under these provisions.

P


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## ajapale

*Re: Transfer of rights*

Employee,

You, or your representatives (unions) can always negotiate a mutually satisfactory outcome with the new owners. This is often the case. You give up some terms and conditions in return for others. Be sure that you dont exchange for T&C's that are manditory (or about to become manditory) anyway. Ive known this to happen.

And yes, penang, be especially carefull with pension entitlements. Do you have a pension scheme? and if you what type is it (Defined Benefit) or (Defined Contribution)?

ajapale


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## Tall Chapy

*Re: Transfer of rights*

All that you were entitled to under your former employer you are entitled to under your new employer.There are some minor exceptions.The pension situation has changed (late last year ?)and they now must provide you with a pension.I do not know if they have to continue a Defined Benefit Pension.Ask this through your employee representative. A rep must be elected if you have no union.
My advice would be to ask every question through your nominated representative and ensure that the question is answer fully and with no waffle. There is not much precedent made in Ireland in relation Transfer of Undertakings. A lot of english precedent, but some of this contadicts itself. Here are a few links.


www.entemp.ie/employment/....htm#trans
[broken link removed]
[broken link removed]

Are you in a union, if you are not and you find yourself in dispute with your new company, you have six months to bring your case to the rights commisioner(assuming you cannot resolve your difference) and I would advise contacting a solicitor to represent you in the labour court. From my experience, the labour court leans more towards the company and intergration, rather than the letter of the law.

Any question just ask and I'll give you my tuppence worth.

Ajapale,
Under the transfer of undertakings, no terms should be reduced or exchanged for others.(Credit Suisse First Boston -v- Lister. UK) Though in practical terms this does happen.


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## Employee

*Rights*

We do not loose anything. Employees are not at a loss
However the company has access to surveys that they participte in but they wont let us see them. 
Is there anywhere these can be accessed particularly in relation to the funds industry ?
We dont have a union and they said they are not legally entitled to recognise one and they would want to know why a employee would wish to join?


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## Tall Chapy

*Re: Rights*

Will you have to sign a new contract when you join, if so have you seen it yet. I do not know much about the Finance sector. The only area maybe where there could be conflict is the payment of bonuses.
As for the surveys, I assume that they relate to other Transfers and how people felt. Your best bet is to trawl the internet for info.If these surveys are something else can you expand on the them.
They are not legally bound to recognise a union, just like they cannot prevent you from joining a union. The more people that join the union the hard it is for them not to recognise them.


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## ajapale

*Re: Rights*

Hi TC,

You are correct:


> Under the transfer of undertakings, no terms should be reduced or exchanged for others.



In practical terms after a period of time (usually a year or so), as integration with the main company progresses, management will negotiate and seek to change certain arrangements. For example closure and amalgamation of branches, changing shift work arrangements etc. 

In my experience this is the stage at which the horse trading commences.

ajapale


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## Marie

*Rights*

ajapale is absolutely right!  I work in an NHS hospital which "merged" with two other hospitals and social services three years ago.  At the outset all were assured our existing contracts of employment would be honoured and there would be no loss of security or benefit.  HOWEVER a number of aspects of the service have been "orphaned" (I understand this technique is widely used in Japanese businesses......your unit or department is simply "bypassed", everyone gets bored and gets jobs elsewhere!) whilst others have been massively invested.  Some services and posts which had "ring-fenced" monies have had this protection removed.  A large number of posts have not been filled when current post-holders left.

From my own experience of the high anxiety in the organisation since the merger/takeover whatever you want to call it, it is vitally important to monitor everything, question (through union reps or through an elected representative in the role of spokesperson) all new implementations.  New brooms sweep away a lot of the supporting perquesites and connections.  I do wish you well with it.


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## Tall Chapy

*Re: Rights*

I agree with both Ajapale and Marie.
The one year thing is more a UK rule, this came about after a court case and is used as a rule in the UK.
Here in Ireland there is very little precedent and if there was it is extremely hard to find it, unlike the UK.
Because there is no precedent, it is widely open to interpretation. Basically the company will try everything in a gradual manner, it is like death by a thousand cuts, until someone challenges them, DO NOT DEPEND ON YOUR UNION to intervene. One day you will turn around and say this looks nothing like the place I started. Now I fully understand that things have to changes and progress, but this can happen the day the 'honeymoon period' is over. Your new employer will possibly not want to rock the boat too much in the early days as he tries to bed his feet in, but when he does....as Ajapale says the horse trading starts and some is not horse trading, it is a case this is the new situation, so live with it !!

The labour court tries to resolve the matter out of court,this may seem perfectly logical, but you could be agreeing to something, that is against the transfer of undertakings and you will be unaware of it. 

This is my own tuppence worth, not all are the same.But just keep on your toes. You will be made feel like you still have your former employers name tattooed on your forehead, you will all so be introduced as a former employee of company *X* and the thing that is detested most , is when you say those fatal words, 





> the way we used to do it...


 Whether you idea is the best idea in the world, saves money, time..etc..Your new employer will perceive you as being still stuck in *your old ways*. After awhile 





> the way we used to do it...


 gets altered to 





> can I suggest an alternative


. An other side effect of the transfer is that your formers employers name is like a dirty words and is looked upon with great disdain. 
Marie's description of High Anxiety is very apt. The easiest way to distinguish a good Transferee from a bad one is... good communication between them and yourself. Does/did your new employer 'embrace' you when you all came on board or did he keep you at arms length. Being left in the dark and being told nothing and everything being left open to rumour and speculation leads to mistrust and High Anxiety. 

The other way to look upon this is that it is great opportunity to develop within a new company...


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## ajapale

Im making this post a key post. Any comments?

ajapale


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## dimo

Be very very careful with this.

The regulation sometimes sounds more secure than it can be in practice,
I can't get into my own case really but,

I was involved in a similar situation. I found my union was useless in the end as they were the main union of the incoming company which wasn't ideal but thats just my situation there will be many issues to address. There hasn't been enough cases to draw examples from as regards these applied rights in Ireland.

I would get a good employment solicitor involved along with picking the brains of unions if you wish.
Each case isn't the same it can't be, but from what I've seen you need to be on top of things. Find out everything about the transfer you are intitled to this from HR and if redundancy is mentioned as it may be you will again need to be on the ball. You might take this option if there's legal arguements going on for ever and you want to move on.

Once you sign the rp50 form for example you cannot report any perceived mishandling of the transfer as you have opted for the rp50 form redundancy .
Again my main message to you would be , check everything and trust no one. I am speaking for experience so look after yourself.
Hope things work out the way you want.


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## ajapale

Moderation bump


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## eimsRV

*Re: Transfer of rights*

Some of the links above are out of date, I've updated some:

Entemp
Citizens Information
[broken link removed]
[broken link removed]


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## Deas

TUPE law continually evolves so is only as good as case law in reality.  Your company should have a solicitor on the books looking into this I suspect.  In terms of pensions, they are not protected under TUPE legislation so if you have a better pension you might need to negotiate separately on this.


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## Mopsy

Are redundancies protected under TUPE?


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## Mpsox

Mopsy said:


> Are redundancies protected under TUPE?


 
Not quite sure what you mean by this. Are you asking if previous terms given for redundancy are protected after the takeover? If so, no, they are not


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## shafted

Hi,is the negotiating on the pension something that can be done and if so do you know of any formula that can be used to show the potential loss of a defined benefit verses defined contribution pension.


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## mar23

Hi 

I have a couple of questions - hope someone can help

our company was "tupe"d in april - in our previous contract which we transferred on we had 26 days annual leave and six weeks sick leave on  full pay per annum. no annual increments. 

the new company have said we can remain on existing contracts with existing terms

or

transfer to their contracts whereby a salary scale with annual increments apply. their holiday entitlements are 20 days per annum, increasing by 1 day per year of service up to max 26 days per annum. 4 weeks sick leave.

they are saying that we would start at 20 days annual leave per annum - however as we have 10 years service - does this not transfer, thereby entitled to 26 days annual leave?

many thanks

mar


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## Complainer

mar23 said:


> they are saying that we would start at 20 days annual leave per annum - however as we have 10 years service - does this not transfer, thereby entitled to 26 days annual leave?


They are giving the choice of staying on your old contracts, so I don't think they are obliged to give you anything specific on the other path. It is going to be a matter of negotiation. Maybe you could meet them half-way?


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