The SER Rules Relating to Mergers 2000 in the Year 2008
The Role of the Employees' Associations
The purpose of the SER Rules relating to Mergers 2000 (SER
Fusiegedragsregels 2000 ("SFG")) is to protect the
interests of employees in the event of a merger or an intended
merger by means of prescribing procedural regulations. The essence
of the SFG relates to the duty of the parties to the merger to
inform the employees' associations about the preparation of the
merger before agreement on the merger is reached. In addition, the
employees' associations are entitled to receive information
from the parties to the merger about the motives, the consequences
of the merger for the employees, the intended policies of the
parties to the merger with regard to the enterprise that is the
object of the merger and the intended measures in that framework.
Subsequently, the employees' associations have the opportunity
to give their opinion. A starting point is that the opinion of the
employees' associations may be of essential influence on
whether or not the merger will be effectuated. The SFG furthermore
determine that the parties to the merger must inform the Works
Council about the opinion of the employees' associations, so
that this opinion can be taken into account in the advisory
procedure of Section 25 of the Works Councils Act (Wet op de
Ondernemingsraden ("WOR")).
Merger Code
Adjudication Committee
The supervision on compliance with the SFG is twofold. On the
one hand, the parties to the merger have the duty to report the
(intended) merger to the secretariat of the SER. On the other hand,
the employees' associations or the parties to the merger have
the opportunity to file a complaint with the Merger Code
Adjudication Committee (Adjudication Committee) within one month
after the failure to comply fully (or properly) with the SFG has
become apparent or could reasonably have become apparent. Since the
entering into force of the SFG in September 2001 until mid-2008
there have been approximately 4,000 reports of (intended) mergers
to which the SFG applied. These mergers have led to a relatively
limited number of complaints. During this period, the Adjudication
Committee has only rendered a decision on a dispute between
employees' associations and parties to the merger about
compliance with the SFG on thirteen occasions.
The most important decisions of the Adjudication Committee are
the decisions relating to the question whether the parties to the
merger have correctly complied with the duty to provide information
and the duty to consult. It appears from the decisions that the
Adjudication Committee interprets the SFG broadly. For instance,
the Adjudication Committee is of the view that it does not matter
for compliance with these duties whether a merger has foreseeable
consequences for the employees or not. Moreover, the Adjudication
Committee is of the view that the employees' associations
retain their right to information and consultation, even if the
parties to the merger have already reached agreement in
practice.
Sanctions
If a party to the merger or an employees' association has
not or not properly complied with the SFG, the Adjudication
Committee may impose a sanction. The sanctioning element lies in
the fact that all decisions of the Adjudication Committee are
public by means of a publication in the regulatory industrial
organization bulletin (PBO-blad). If the Adjudication
Committee is of the view that a party's failure to comply fully
(or properly) with the SFG is of a serious nature and is
attributable to that party to a serious extent, the Adjudication
Committee may, moreover, issue a press release about its decision
mentioning the names of the offenders.
Tips
- Simultaneously with the reporting to the secretariat of the
SER, the parties to the merger must notify the employees'
association(s) of each intended merger that falls within the
scope of the SFG.
- A party to the merger is recommended to request strict
confidentiality simultaneously with the notification before
this party provides information to the employees'
association(s) about the intended merger, because such an
obligation of confidentiality does not follow from the
SFG.
- At the first (alleged) violation of non-compliance or
improper compliance with the SGF by a party to the merger (or
an employees' association), an employees' association
(or a party to the merger) must file a complaint with the
Adjudication Committee. If a party fails to do so, there is a
risk that the Adjudication Committee will declare a complaint
that was filed at a later time inadmissible due to the
exceeding of the term of one month.
On 23 October 2008 an article will be published in
ArbeidsRecht magazine in which an overview will be given
of the most important decisions of the Merger Code Adjudication
Committee. If you would like to receive a copy of this article,
please contact Ms mr. Soo-ja Schijf or e-mail her via
info@kvdl.nl.