Jobs in a succession of companies
A frequent question that every worker asks himself in a succession of companies is what happens to his job position and what are the rights. We will try to explain it clearly in this article.
What is a business succession and what rights do I have?
Throughout a worker’s working life, a multitude of situations occur that generate a situation of uncertainty in him.
One of the most common cases occurs when we have knowledge or rumors that the company we work for is going to be sold, merged, absorbed, etc., that is, a situation in which the businessman who had been paying us our payroll is going to change.
Well, if this is the situation in which you find yourself, very possibly we are facing a succession of companies typical of art. 44 of Workers Statute, to which they associate a series of rights.
However, we first need to be aware of what business succession really is and when we find ourselves facing it.
What is a business succession?
A business succession occurs when:
there is a change of ownership of a company, a work center or an autonomous production unit, and that additionally, the transmission affects an economic entity that maintains its identity, understood as a group of means organized in order to carry out an essential or accessory economic activity.
This is the legal definition given by the Workers’ Statute for company succession, although it is sometimes not clear whether we are really dealing with one of these cases or not.
For these situations there are certain elements that can be considered decisive in the eyes of the courts to verify the existence of the succession, such as, among others:
- The fact that there is a coincidence of activities between both companies.
- Transfer of assets between companies.
- If the registered office or business address coincides.
- In the case of companies, if there is a coincidence between the people who form part of their shareholders or their administrative bodies.
- If the acquiring company assumes the status of employer with respect to all or some of the workers of the previous company.
What is clear is that you always have to be able to differentiate two distinct elements:
- a subjective element in which there is a transferor (former employer), a transferee (new employer) and a worker;
- an objective element, understood as the company or the autonomous productive unit that is transferred.
There are times when we find ourselves in situations that are very similar to a business succession but that really are not.
As an example would be the cases of conventional subrogations (by collective agreement), succession of staff in administrative concessions, change of hands of the share capital of a company, changes in the legal form of the company, or reorganization of powers in the field of public administrations.
Finally, in the event of the death of the employer and transfer to the heirs of the shares, we would not find ourselves before a succession of companies.
What rights do I have as a worker before a company succession?
The main idea is that regardless of the legal transaction that has generated the succession of the company, the subsistence of the labor contracts that unite the workers with the company is guaranteed.< /p>
Therefore, despite the change produced, the employment relationship will not be terminated, in the same way that workers will be able to maintain all the rights inherent to the relationship established with their previous employer; and this happens because what is achieved with the succession of companies is that the assignee is subrogated in the position of the assignor and therefore the workers pass to depend on him. Therefore, he will maintain all the labor and Social Security rights and obligations of the previous employer.
Within the pre-existing commitments, the new employer will also be subrogated in the same way to the commitments related to pensions and in general to any of the obligations related to social protection that may have been underwritten by the previous employer.
Regarding the applicable collective agreement, the new employer will have the obligation to respect the conditions of the workers established in the collective agreement that had come to them being applied on a regular basis, until the expiration date of the same or until the entry into force of another new collective agreement that is applicable to the transferred economic entity.
Another of the key points in the succession is the joint and several liability established in article 44, and that is that the assignor and assignee will jointly and severally respond for three years of labor obligations< /strong>born prior to transmission and who had not been met.
Now, in the event that the succession had been declared illegal, they would also be liable for the obligations arising after the transmission.
In the same way, it should be mentioned that the succession will not extinguish by itself the mandate of the legal representatives of the workers.
Can I as an employee refuse to be transferred to a new employer as part of a company succession?
It may be the case that the worker refuses to be subrogated to the new employer, which will usually be considered as a voluntary resignation of the latter, since they would maintain all the conditions that had pre-existed in their former employer when the company succession was applied.
In the event that there are changes in the working conditions proposed by the new company that are not accepted by the worker considering that these changes cause harm, we would be faced with the right of the worker to proceed to terminate his contract receiving compensation of twenty days of salary per year with a limit of nine monthly payments.
15/03/2018
