In Alemo-Herron and Others v Parkwood Leisure Limited, the question was whether the terms of a collective agreement negotiated through a central bargaining forum had bound a transferring employer (i.e. the new private contractor) to workers who joined the tupe when it had not had the opportunity to participate in negotiations on the terms of the collective agreement. The UK courts did not agree on which of the two interpretations of the Acquired Rights Directive should be preferred. The two approaches were as follows: the Court found that new employers should be free to manage their activities and effectively assert their interests in a contractual procedure. As a result, the new employer was not bound by collective agreement wage decisions made by the former employer after the transfer date in negotiations in which the new employer had not participated. The amended rules give new employers the certainty that they will not be affected by decisions on the conditions of sale of their employees that will be taken after the transfer, unless they themselves have participated in these decisions. Both new and old employers need to obtain relevant information on collective bargaining prior to TUPE transfers and ensure that information and consultation obligations are met. The working and employment conditions of police officers are not set by normal collective agreements. The most important conditions for police officers are determined at the national level by the determination of the Minister of the Interior, usually after national negotiations and consultations. However, some aspects require local agreements at the police level. National commercial conditions can also be supplemented at troop level by local agreements. 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”. 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.