Termination of Collective Agreements in Business Tranfers: With Particular Focus on Identity and Circumvention

Simone Andersen & Linette Elnef

Student thesis: Master thesis

Abstract

n a business transfer, the issue of whether or not to terminate the collective agreement may arise. Whenever a group of employees or even an entire company is part of a business transfer, the employees are protected by their collective agreement until such an agreement is terminated by the new employer. If the employer decides to opt out of the agreement, an alternative collective agreement must be available to the employees. When the collective agreement is terminated, the employees remains protected until collective agreement's original expiry, after which employees are transferred to a new agreement. The law regulating this is Virksomhedsoverdragelseslovens § 4 a, which is the primary focus in this master thesis. The purpose of this master thesis is to examine the role of identity between companies and determine if and when such identity occurs. In doing so, the thesis will examine if the changing market is changing case-law with it. The master thesis examines the possibility of disclaiming a collective agreement in a business transfer. The master thesis will investigate the importance of identity between companies and how it affects the legal possibilities of terminating the agreement. In doing so, the master thesis will investigate the case-law in an effort to assess if and when identity is present between companies, and based on analysis of previous verdicts by Arbejdsretten, it will investigate how the courts rule on the subject. Furthermore, the master thesis will focus on the economic perspectives of the problem, including consequences and the opportunities that may arise from the possibility of termination. The master thesis will focus primarily on three verdicts; the SAS-verdict, the KMD-verdict and the HORESTA-verdict. The legal part of the master thesis will focus on how the law is using case-law, while the economic part will show how these laws affect the market and what consequences they may have. Lastly, the interdisciplinary part of the master thesis will focus on whether or not the law is optimal in relation to today’s market. In the master thesis it is concluded from analysis that the court rules more extensively than the law dictates and the economics analysis finds that the reason for this may be societal consideration, as without such help from the courts, large companies may indeed fail to survive. The master thesis has addressed and clarified a number of issues regarding the termination of a collective agreement in a business transfer, cf. Virksomhedsoverdragelseslovens §4 a.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2018
Number of pages116
SupervisorsPeer Schaumburg-Müller & Henrik Lando