The ECJ stressed that, in this context, ARD seeks not only to protect workers, but also to ensure a fair balance between its interests and those of the worker. In particular, the buyer must be able to make the adjustments and modifications necessary for the continuation of its activities. The ECJ concluded that the German legislation met this requirement, given that the purchaser had the right “to adapt by consensus or unilaterally the working conditions existing at the time of the transfer”. Whether TUPE has the effect of tying new employers to changes agreed by the former employer under a collective agreement after the transfer has been the subject of much debate and litigation. The Court of Justice of the European Communities finally ruled on the 18th In the case of Alemo-Herron v Parkwood Leisure Ltd, the TUPE has a `static` effect rather than a `dynamic` effect. Conditions that are not covered by a collective agreement are governed by the usual provisions of the TUPE. The next ECJ case, Alemo-Herron, was that employees working for a local authority had employment contracts that indicated that their terms were in line with collective agreements negotiated from time to time by the National Joint Council of Municipal Services. During a transfer of TUPE, the staff employed by the local authority was transferred to a private company that did not participate in collective bargaining. The ECJ ruled that the terms of the collective agreements negotiated after the date of the transfer are not applicable to the buyer who had not had the opportunity to participate in the negotiations. The ECJ considered that the interests of the transferred workers had to be weighed against the interests of the worker and concluded that a dynamic interpretation would push the balance in favour of the workers too far.
Dynamic application is contrary to the worker`s fundamental right to freedom of enterprise, as he does not have sufficient contractual freedom (since he does not have the possibility of being involved in collective bargaining). Detailed information on all recent TUPE reforms, including those relating to collective agreements, is available in the 2014 TUPE amendments [165kb] amendments to TUPE. It remains to be seen what the consequences (if any) will be on the UK`s position under the TUPE, the relevant provisions of which were specifically amended in 2014, in line with the “static” approach set out in Alemo-Herron. . . .