In 2008, KLS`s operations were transferred to another company. While the workers wished to take advantage of the dynamic clause, the purchaser argued that he was not required to apply the conditions arising from the changes to the collective agreement after the transition date. The purchaser relied on the earlier ECJ Werhof  IRLR 400 and Alemo-Herron  IRLR 744. Recent TUPE reforms contain new measures to change collective agreements. It remains to be seen what impact this situation (if any) will have on the UK`s position under the TUPE, whose relevant provisions were specifically amended in 2014, in line with the “static” approach described in Alemo-Herron. TUPE Regulation 4A deals with the impact of a transfer of TUPE on employment contracts that contain provisions of collective agreements. It provides that the principle of automatic transmission does not apply: it is important that employers are sensitive to the transfer of collective agreements. They need to look not only at the legal implications of rule changes, but also at all labour relations considerations. One year after the transfer, future employers can renegotiate the terms of a collective agreement, provided that the overall change is no less favourable to the workers concerned. Detailed information on all recent TUPE reforms, including those dealing with collective agreements, can be found in the 2014 TUPE [165kb] amendments to TUPE. Finally, as noted above, the changes can be made to the route of the collective agreement described above, changes can be made to harmonize the conditions. The case concerned employees of a German public authority who, in 1997, were overwhelmed in a private company (KLS). KLS agreed that the conditions of the transferred workers should remain subject to the collective agreement previously in force, even though KLS was not part of the employers` organisation that negotiated it.
KLS included a clause in workers` employment contracts that stipulated that their employment would be governed by the collective agreement and all subsequent collective agreements that would modify or replace it. The Board noted the earlier national decision of the EAT in Whent/Cartledge  IRLR 153, which had approved the “dynamic” approach to employment contracts, where the purchaser is bound by the terms collectively agreed upon by third parties after the transfer. However, given the ECJ`s decision in Werhof in 2006, this approach was wrong. The TUPE should be interpreted as far as possible in accordance with the Werhof Directive and ECJ.