A Merger or Aquisition

When is a merger really a takeover?

We hear that Edinburgh College is claiming that the only RPA (Recognition and Procedures Agreement) that transfers under TUPE is that of Telford College.

Implications for other mergers?

Their HR manager is quoted in an email... (we would welcome a Plain English translation of the section we have highlighted in blue!)

"Our position is that, post-transfer, only the Telford RPA applied and not all three. This stems from the fact that the Stevenson and Jewel & Esk Colleges’ recognition of the trade unions did not transfer under the TUPE Regulations as those colleges did not retain their autonomy post transfer.

Trade union recognition transfers to the transferee (regulation 6, TUPE) as an independent trade union that was recognised by the transferor in respect of any description of transferring employees is deemed to be recognised by the transferee to the same extent as by the transferor (regulation 6(2)(a)).  However, this transfer of union recognition only applies where the transferred organised grouping of resources or employees maintains an "identity distinct" from the remainder of the transferee's undertaking after the transfer (regulation 6(1), TUPE). Regulation 6 of TUPE implements Article 6(1) of the Acquired Rights Directive, which provides that employee representation shall be retained if the transferred undertaking "preserves its autonomy" after the transfer. The ECJ held in Federación de Servicios Públicos de la UGT (UGT-FSP) v Ayuntamiento de La Línea de la Concepción (C-151/09) that a transferred undertaking preserves its autonomy for the purposes of Article 6(1) where it has the power to govern itself without the direct intervention of the transferee. This will include having the power to independently organise work within the transferred entity, give orders and instructions and allocate tasks to employees.  Autonomy will not be preserved where the transferred undertaking is no longer self-governing after the transfer (that is, the transferee has operational as well as ultimate control) as is the case here.

 Therefore, as the undertakings of Stevenson and Jewel & Esk Colleges have been fully integrated into Edinburgh Telford College’s business on transfer, union recognition did not transfer and as a consequence, their RPAs are of no effect. The transferred staff are now covered by the Edinburgh Telford College recognition of the trade unions and its RPAs.

 As a result, our position is that the only RPA in existence is that agreed at Telford in October 2010.  This will remain the case until such time as a new RPA is agreed between management and the EIS."