In this week’s Workplace Bulletin:
- New Transfer of Business Laws Will Commence on July 1!
- Quick Tip of the Week: Changes to migration laws
- Workplace Helpdesk Q and A: Entitlements for award employees
- Workplace Wackies: Keyless Entry
Dear Reader,
As you are no doubt already aware, 1 July 2009 marks the commencement of the Fair Work Act. One area of workplace law that will be affected significantly by the new Act is transfer of business (formerly transmission of business under the Workplace Relations Act).
What is a transfer of business?
Transfer of business provisions may apply when an employer (the new employer) takes over part or all of the business of another employer (the old employer). The transfer of business provisions may mean that the new employer becomes bound by the old employer’s workplace agreements.
Remember though, transfer of business is only an issue where there is a change in employer. There will not be a change in employer if you acquire a business simply by buying the shares in the company that is the old employer.
What changes to transfer of business laws do you need to be aware of?
If you are taking over a business and becoming a new employer on or after 1 July 2009, you will need to be aware of the following changes to the current law:
- The transfer of business provisions will operate in a broader range of circumstances. The test for when they operate will no longer focus on whether the new employer has taken over the business of the old employer. Instead, the test will focus on whether employees transferring from the old employer to the new employer will do the same or substantially similar work. The test will also focus on whether there is a particular ‘connection’ between the two employers. A ‘connection’ between employers will arise if the old employer and the new employer are members of the same corporate group, or if the old employer has outsourced (or “insourced”) the transferring work to the new employer.
- Unlike the current provisions, the transferring workplace agreement will not cease to operate after 12 months.
- The transferring agreement will obviously bind employees transferring from the old employer to the new employer. However, unlike current laws, transferring agreements may also bind new employees recruited by the new employer who perform transferring work (if no award or enterprise agreement covers those employees).
More information on these and other changes to transfer of business laws will be covered in future Employment Law Practical Handbook updates.
Quick Tip of the Week:Recent changes to migration laws mean that Australian employers seeking to sponsor skilled overseas workers will be now be required to prove how (in their case) recruiting employees from overseas will benefit Australia more than employing domestic workers.
For more information on these and other changes to Migration laws, watch out for the updated Migration chapter in your next update, due to arrive in your mailboxes next week!
Workplace Helpdesk: Entitlements for award employees
Answered by Charles Power, editor-in-chief, Employment Law Practical Handbook.
Q: We employ staff that earn less than $100,000.00/ year (but more than the award dictates) on common law contracts. Their contracts also allow for much more favorable conditions than the award. Are they still entitled to things such as leave loading on their annual leave?
A: Yes. The fact that you pay above award rates does not prevent an award covering employees. On and after 1 July 2009 there will be an option to cause awards not to apply to high earning employees (i.e. $100k plus), but you will need to fulfill certain requirements for this to happen.
For further information, please see this past edition of the Workplace Bulletin here:
http://www.workplacehandbook.com.au/20090603/modern-awards-and-employees.html
Workplace Wackies: Keyless Entry
A man who worked for the state in Hawaii was sent to jail on his fourth criminal conviction, but he didn’t lose his job. While serving time on weekends, he continued to work five days a week at his regular job as a prison guard. Isn’t there a saying about a fox watching the henhouse?
[Source: Idiots at Work]
Until next time…
Claire Berry
Editor
Tags: entitlements for award employees, migration laws, new transfer business laws
