The collective agreement in a business transfer cannot be changed at the acquirer’s will: the transferred workforce keeps the agreement that applied on the day of the transfer, and only a “new” agreement signed and published after that date can displace it. Spain’s Supreme Court has just restated this in judgment 768/2026 of 30 September (appeal 167/2025).
When a company buys or absorbs another, the transferred workforce does not automatically move to the acquirer’s collective agreement. It sounds obvious, but it remains one of the most common sources of conflict in integrations: the buyer assumes its own agreement, sometimes freshly negotiated, will apply from day one, and discovers months later that it must keep applying the original one.
The Supreme Court has just reminded us of this in a case affecting 49 workers, and it leaves a clear lesson for any transaction. A collective agreement can only displace the original one if it was signed and published after the transfer. It is not enough for it to be published afterwards, and giving it retroactive effect does not rescue the situation either.
At Suárez de Vivero we regularly advise companies on acquisitions, mergers and workforce integrations. In this article we review the case, the rule the Supreme Court sets, and the practical scenarios worth bearing in mind before closing a deal.
Which collective agreement applies to the workforce after a business transfer?
The general rule is in Article 44.4 of the Workers’ Statute. After the transfer, the transferred workforce keeps the collective agreement that applied to it on the day of the transfer, even if that agreement is in ultra-activity, meaning it continues to apply after its agreed term has ended. The safeguard aims to ensure that a corporate transaction, which EU law calls a transfer of undertakings, does not alter the working conditions of the people affected overnight.
But it is not permanent. It ends in three cases.
The first is the most obvious: the original agreement expires. From then on, the workforce moves to the agreement that applies at the acquiring company.
The second is that, once the transfer has been completed, the company reaches a statutory company agreement with the employee representatives. It must come after the transfer, and a non-statutory agreement is not enough.
The third is that another “new” agreement applicable to the transferred unit comes into force, signed and published after the date on which the transfer takes effect. This is the one at the heart of the dispute.
The case: Hertz, Proa and 49 workers under the Balearic agreement
Hertz de España took over 49 workers from Proa Rent a Car. All of them were covered by the Balearic regional collective agreement for vehicle rental without driver, in force until 31 December 2025.
Hertz, for its part, had negotiated its own company agreement. It was signed on 27 September 2023, but not published in the BOE (Spain’s official gazette) until 14 March 2024, when the takeover had already been completed. The text came into force on publication, although with retroactive effect from 1 January 2022.
The company argued that, because it was published after the transfer, its agreement was the “new” agreement under Article 44.4 of the Workers’ Statute and displaced the Balearic one. The Supreme Court does not accept this. Hertz’s agreement already existed as an agreed text at the time of the transfer, and later publication does not make it new.
The Court follows its earlier case law here: a new agreement is one negotiated when the transferred unit already forms part of the acquirer, so that it can also reflect the interests of the transferred workforce. The outcome: the 49 workers remain covered by the Balearic agreement until it expires or until a genuinely new agreement comes into force.
The collective agreement in a business transfer: when is an agreement “new”?
The Supreme Court’s answer leaves two points that work in the acquiring company’s favour and two that work against it.
In its favour, the new agreement can be of any scope. A new sector-wide agreement displaces an original company agreement, because the priority given to company agreements by Article 84.2 of the Workers’ Statute does not operate in this area. Nor is an agreement with the employee representatives needed for the new agreement to apply to the transferred unit.
Against it, neither a non-statutory agreement nor pay scales approved by the company count as a new agreement. Nor does an “express” agreement: one whose negotiation starts before the transfer, is closed just afterwards with retroactive effect, and leaves out the representatives of the transferred workforce. The Supreme Court treats it as a way of circumventing the safeguard.
How the most common scenarios play out
The date the acquirer’s agreement was signed and the date it was published, compared with the date the transfer takes effect, decide almost every case.
If the acquirer’s agreement was signed and published before the transaction, the workforce stays under the original one until it expires or a new one arrives. If it was signed before and published after, as in the Hertz case, the answer is the same: later publication does not make it new. And retroactivity changes nothing either, because it does not alter the signing date.
Only when the agreement is signed and published after the transfer does it displace the original, from its entry into force. The same applies to a new sector-wide agreement published after the transfer, which prevails over an original company agreement, and to a statutory agreement reached with the representatives after the transfer: what is agreed there applies.
That leaves the most delicate scenario: the agreement negotiated before closing, wrapped up just afterwards, with retroactive effect and without the representatives of the transferred workforce. The Supreme Court regards it as a fraud on the safeguard, and the workforce remains under its original agreement.
Three situations that call for caution
Negotiations under way during the deal
If the acquirer is negotiating its agreement while the purchase is being prepared, signing it before closing in order to “make it in time” backfires: that agreement can never displace the original. It is better to sign it after the effective date, with the involvement of the transferred workforce’s representatives.
Service contracts and concessions
The Supreme Court judgment of 27 June 2018 (appeal 111/2017) allowed an agreement signed before and published after to apply, but in a service-contract succession. The Court insists that this approach does not extend to the transfer of a productive unit under Article 44 of the Workers’ Statute. It should not be relied on in a purchase or merger.
An original agreement in ultra-activity
The safeguard continues even if the original agreement has lost its agreed term. Whether it has also lost its protection against the sector-wide agreement is a question the Supreme Court has not resolved in a transfer context, and the case law of the Court of Justice of the European Union points towards preserving the original agreement. It is a point to analyse case by case.
What the acquiring company should do
The key is to plan the collective-bargaining calendar together with the transaction calendar, not afterwards.
Already in the employment due diligence, identify the agreement that applies to the workforce being transferred, its expiry date and whether it is in ultra-activity, and quantify the cost of keeping it compared with the acquirer’s own agreement. Then fix the effective date of the transfer precisely, because it is the date against which the signing and publication of any later agreement will be compared.
If negotiation of the acquirer’s own agreement is well advanced, the prudent course is not to sign it just before closing in the hope of applying it to the acquired workforce. It is better to postpone signing until after the transfer and involve the representatives of the transferred workforce. And if the aim is to harmonise conditions quickly, the route is to negotiate a statutory company agreement with the employee representatives once the transfer has been completed, without retroactive effect to the date of the transfer.
In the meantime, the original agreement must be applied rigorously: pay scales, working time, allowances and benefits. Differences claimed later often add up to several years of arrears.
When a new agreement finally comes into force, review which conditions from the original agreement cease to apply. Benefits tied to the agreement’s term are lost and do not become acquired individual rights (Supreme Court judgment of 11 March 2026, appeal 3681/2024), so the change should be communicated in writing and documented. The subrogation agreements between transferor and transferee should also be reviewed, because a commitment to maintain conditions can extend the cost beyond what Article 44.4 of the Workers’ Statute requires.
This planning is part of employment compliance for companies and reduces the risk of claims and of employment litigation in Spain after the transaction.
Conclusion: the calendar is part of the deal
Judgment 768/2026 closes the door on a tempting practice: relying on later publication, or on retroactivity, to turn an agreement already settled before the transfer into a “new” one. For the Supreme Court, the decisive date is also the signing date.
The collective agreement in a business transfer is largely decided by the calendar. In a corporate transaction, collective bargaining has to be part of the planning from day one.
At Suárez de Vivero we support companies in acquisitions, mergers and workforce integrations, and we review the applicable agreement and its calendar before closing. If your company is preparing a transaction of this kind, we will be glad to analyse it with you.
Frequently asked questions about collective agreements in a business transfer
Which collective agreement applies after a business transfer?
The one that applied to the transferred workforce on the day of the transfer, even if it is in ultra-activity. It stops applying only if it expires, if a statutory agreement is reached after the transfer, or if a new agreement applicable to the transferred unit comes into force.
When is a collective agreement considered “new”?
When it has been signed and published after the date on which the transfer takes effect. It is the agreement negotiated when the transferred unit already forms part of the acquiring company.
Is it enough for the acquirer’s agreement to be published after the transfer?
No. If it was signed before the transfer, later publication does not make it new. This is established by Supreme Court judgment 768/2026 of 30 September (appeal 167/2025).
Does it matter if the agreement has retroactive effect?
No. Retroactivity does not change the signing date. An agreement signed before the transfer does not displace the original one even if its effects reach back to an earlier date.
Can a new sector-wide agreement displace an original company agreement?
Yes. The priority of company agreements under Article 84.2 of the Workers’ Statute does not operate in this area, so a new sector-wide agreement can displace an original company agreement.
What happens to benefits under the original agreement when the new one comes into force?
Benefits tied to the agreement’s term are lost and do not become acquired individual rights (Supreme Court judgment of 11 March 2026, appeal 3681/2024). The change should be communicated in writing and documented.
