Part 2: Collective issues on Tupe Transfers by Dr John McMullen
Under reg 6 of TUPE the transferee must continue the recognition of any independent trade union previously recognised by the transferor in respect of that undertaking or part. That obligation, however, is dependent upon the undertaking or part being transferred retaining a separate identity in the hands of a transferee. The first point to note is reg 6, requiring retention of a separate identity of the undertaking for the purposes of the transfer of representation of employees has different wording from the Acquired Rights Directive.
In contrast with reg 6, Art 6 of the Directive provides for the preservation of representation of employees where the undertaking or business or part of an undertaking or business preserves its autonomy. At first glance it might be thought that the word “identity” in reg 6 should be easily construed in line with “autonomy” but, as the Court of Justice of the European Communities has pointed out in Federación de Servicios Públicos de la UGT (FSP) v Ayuntamiento de la Línea de la Concepción: C-151/09 [2010]
