The obligations of local authorities in the territory of a TRANSFER of TUPE are no longer very clear; TUPE plus was clearly eroded, but not totally removed. In any future outsourcing situation, a local may be caught between potential entrepreneurs and trade unions. On the one hand, potential contractors are likely to be reluctant to bear generous employment costs that go beyond the normal requirements of the TUPE. On the other hand, it is likely that unions will push for overall protection of TUPE Plus, or as close to how they can reasonably achieve it for their members. Such a situation probably requires careful treatment in order to minimize potential exposure and, where appropriate, legal advice should be provided. Alemo-Herron`s contracts made it clear that the terms of employment set by the NJC would be the conditions set by the NJC at any time. Although this meant that the payment was decided in a forum that the private contractor could not control, this is no different conceptually from a provision that links wage increases to another external reference point, such as inflation. According to this analysis, collective agreements that are concluded after the transfer only affect the purchaser and the worker if the contract indicates it. Without such a clause in employment contracts, the new collective agreements would not be relevant. The contract law conferred under the TUPE was a right to a contract that met the conditions of future national negotiations. It does not matter that the private sector employer cannot participate in these negotiations or exert influence. However, prior to the final decision, the Supreme Court considered that the ECJ`s decision in Werhof did not mean that the directive could only be interpreted to require a static approach to the transfer of concepts derived from collective agreements.
Graham Richardson informs about the application of the so-called “TUPE plus” scheme to local government. Before looking in detail at the TUPE regulations, we should recall some of the most important provisions of the Corporate Protection Obligations Regulation (“TUPE”). TUPE applies to the protection of workers` rights when the transfer of a business when an economic entity that retains its identity is transferred. It is not mandatory for an economic entity to make a profit and the definition would encompass many functions in the public sector. The 2006 regulations introduced a new type of TUPE transmission.