Every month our corporate lawyers select an interesting, entertaining and/or unusual case from their own legal practice to share with you. This month we tell you about a case involving one of our clients, a cleaning-company owner. This client had recently won a new site following a re-tender. Based on the information provided by the losing employer, the winning principal had drawn up an overview, since it did not appear that a transfer obligation existed for all employees. Afterwards, it turned out that the losing party had not provided all the correct information, which had unpleasant consequences for the acquiring party. That party had already hired new people…

Anyone even slightly familiar with the Cleaning Sector Collective Labour Agreement (CAO) will immediately shout “ARTICLE 38!”

Article 38 is the transfer provision in the event of a change of contractor. Among other things, it provides that employees who have worked at the site for at least 18 months and hold a diploma recognised by the sector must be taken over by the new party.

Article 36 of the Cleaning CAO provides that all employees must obtain a basic trade certificate within their first year. You would therefore assume that all employees who are transferred already hold a certificate. Nothing could be further from the truth…

Article 38 also contains an exception to the certificate requirement: an employee who was already working in the cleaning sector before 1 January 2012 does not need to hold a trade certificate but is nevertheless transferred along.

Because employees in the cleaning sector often change employer, they accumulate many different employers, and mistakes regularly occur in the administration. The new employer does not always correctly track the right seniority date and does not always properly check whether employees hold a trade certificate. In our case, the losing party had passed on incorrect information. After much time, effort and conversation, it turned out after two months that the employee had in fact already been working in the cleaning sector before 2012. The employee demonstrated this by means of pension statements from the pension fund. Article 38 provides that the employee is then transferred after all, and that the losing party must compensate the new party for the damage. But the time and energy the new party spent on this is never fully reimbursed. CAN THIS BE PREVENTED?

TIP: TAKE STOCK at least once a year of whether all your employees hold a trade certificate. Pay special attention to employees who have been working in the cleaning sector for a long time — where you suspect this may be since before 2012:

• If they hold a trade certificate, no problem.
• If they do not hold a trade certificate, have them obtain one after all. The more trade knowledge, the better.
• If they do not hold a trade certificate and are unable or unwilling to obtain one, you must be able to demonstrate that they were already working in the cleaning sector before 1 January 2012. Often they themselves no longer have an old employment contract or payslips from that period. So how do you prove it? TIP: have the employee request an overview from the pension fund for the cleaning sector — you can verify it there.

Ultimately it is in the interest of all parties for employees to be transferred in the event of a re-tender. Employees keep their familiar (work) location, the losing party is not left with an employee to (re)place, and the new party takes on experienced employees. If everyone is certified, fewer things go wrong, both during a transfer and on the work floor!

Masterclass: Contract Changes in the Cleaning Sector – 5 October 2023

In practice, complicated legal disputes regularly arise about changes of contractor under article 38 of the CAO.

During the masterclass ‘Contract changes in the cleaning sector’ on 5 October, our employment law experts explain how, through the correct steps (in line with the recent CAO, legislation and case law), you can achieve a smooth change of contractor.

For more information and to register, click here!