This Spijkers v Gebroeders Benedik Abbatoir CV, 1986 case has led to what is referred to in Europe as “Spijkers Criteria”. These are to be considered when it comes to deciding whether there has been a transfer of a business operation (“an undertaking”) or not. The criteria are:
1 was the undertaking a stable undertaking with an ongoing life of its own?
2 has the entity retained its identity?
3 have some or all of the staff been taken over by the new employer?
4 has the customer base transferred?
5 are the activities post transfer similar to those carried on before the transfer?
6 whether there was an interruption of the activity will be a factor
7 has there been a transfer of assets?
In a February 28th, 2017 decision of the Court of First Instance, in so far as I am aware, introduced these criteria in the Aruba labor law system. In the case in question, a local union vs a local casino operator, the court used this criteria to determine that in this specific case there was no transfer of a business operations and as such the claim(s) made by the union we’re rejected. This case resulted due to amendments brought to the Aruba labor legislation in 2013 where a “transfer of business operations”-provisions in order to protect employees from the transferring entity.
Having read the decision of the court I believe the decision will not be turned over in appeal and that as of today this case will help resolve disputes in cases where a transfer of operations is claimed by a union or group of employees. I also believe this decision contributes to a healthier business climate in Aruba.
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