transfer of business labour hire

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Offering employment to labour hire workers constitutes a transfer of business

  • Topics: Middle market enterprises (MME) , Workplace relations and safety

The recent decision of Burdziejko v ERGT Australia Pty Ltd [2015] FWC 2308 has significant consequences for employers when offering direct employment to labour hire workers. The Fair Work Commission determined in that case that a transfer of business was triggered when the employer offered employment to the labour hire worker. This meant that the labour hire worker had access to unfair dismissal, as their service with the labour hire provider counted as service with the new employer.

On 10 June 2014, Ms Burdziejko was hired by Hays (a labour hire provider) to work at ERGT Australia Pty Ltd (ERGT). After three months, ERGT offered Ms Burdziejko employment with the company to continue the same work. Ms Burdziejko’s employment with ERGT was subsequently terminated, and she alleged that she had been unfairly dismissed.

The Fair Work Act 2009 (Cth) (FWA) provides that an eligible employee must have been employed with an employer for at least six months to be protected from unfair dismissal (unless the employer is a small business, in which case the period is 12 months).

A period of employment with one employer will count as employment with another employer if a ‘transfer of business’ has occurred. A transfer of business will occur if:

  • the employee’s employment with the old employer has terminated;
  • within three months, the employee becomes employed by the new employer;
  • the work that the employee is performing for the new employer is the same, or substantially the same, as they were performing for the old employer; and
  • there is a ‘connection’ between the old and new employer.

The issue in contention in this case was whether there was a connection between the old employer (Hays) and the new employer (ERGT) as the other three conditions were satisfied. Relevantly, a connection is said to exist where the new employer outsources the work to the old employer, but then ceases to outsource the work and returns to performing the work in-house.

The Fair Work Commission was satisfied that this had occurred and since ERGT had not expressly informed Ms Burdziekjo that it would not recognise her prior service with Hays for the purposes of unfair dismissal prior to her commencing employment with it, her service with Hays was counted. She therefore had served the minimum qualifying period and was able to pursue her unfair dismissal application.

Implications for employers

Employers should be aware that they may trigger a transfer of business if they outsource particular work to a labour hire provider and then directly employ its labour hire worker performing that work when bringing that function back in-house.

In practical terms, this means that the service of the labour hire worker with the labour hire provider may count as service with the new employer. This has consequences for access to unfair dismissal and leave accruals.

It also means that employers could be inadvertently bound by the terms of conditions of an industrial instrument (such as an enterprise agreement) of the labour hire provider upon transfer.

This article originally appeared in Cooper Grace Ward’s Workplace Relations & Safety Risk Management Adviser – May 2015 .  Click here to download the full newsletter

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Constitutional. The official currency is the Kwanza (AOA). The official language is Portuguese.

Last modified 11 Apr 2023

A foreign entity may engage employees in Angola with proper payroll registrations, subject to business, corporate and tax considerations. The employer is responsible for withholding from an employee's pay, and delivering to the tax authority, income tax and contributions to Angolan social security. The level of income tax is defined by the government and varies in line with the employee's salary.

Immigration compliance and pre-hire medical examinations.

Permissible

Reference and education checks are permissible.

Criminal and medical checks must be issued by competent authorities, a criminal record must be issued by the home country and a medical certificate must be issued by a doctor in the employee’s home country.

The visa/work permit requirements for overseas nationals to work in Angola are having a recognized travel document valid for the Angolan territory for at least 6 months, being of legal age, not being included in the national list of undesirable persons prohibited from entering into the national territory, not constituting a danger to public order or to social security interests, complying with all health regulations established by the Ministry of Health for entry into the national territory, having an employment contract or promissory employment contract, having a certificate of professional and educational qualifications and curriculum vitae, and obtaining a positive opinion of the competent Ministry.

Indefinite-term contract (which is the rule), fixed-term or open-term (ie, a term contract whose termination date has not yet been defined, but that will be terminated as soon as the underlying need for contracting is no longer verified – for example, as a contract to cover absence), part-time contract, telework contract and contract under service commission regime – a particular type of contract for high-level employees which provides flexibility for termination and is not common. The parties may execute an employment contract for a fixed term or open term, which must be done in writing.  Part-time, fixed-term and open-term employees may not be discriminated against due to their status.

Independent contractor

Independent contractors may be engaged directly by the company or via a personal services company. Engagement may be subject to misclassification exposure. The factors that tend to indicate an individual is an employee (rather than, for example, a self-employed independent contractor) are the existence of a work schedule, the scheduling of vacation, the worker’s legal subordination to the company, the company’s authority, direction and disciplinary powers, control of punctuality and attendance over the individual, integration into the structure of the company and use of work tools belonging to the company, among others.

In the event of misclassification, the relationship may be converted into an employment relationship on a permanent basis, and the employer may be liable to pay a fine for non-compliance.

Agency worker

Agency workers may only be engaged to fulfill a temporary need for work. The agency work contract duration depends on the underlying reason for hiring and does not typically exceed 24 months. Agency workers have the right to equal treatment to employees in relation to pay and other regular benefits.

Employment contracts

Written employment contracts are common but not mandatory, except for fixed-term, part-time, telework and service commission regime contracts as well as contracts with foreign employees and underage employees. Employment contracts cannot contain conditions that are less favorable to employees than mandatory employment legislation.

Probationary periods

Permissible.

Employment contracts for an unlimited period of time may be subject to a probation period corresponding to the first 60 days of performance of work; the parties may, by written agreement, reduce or waive this period.

The parties may extend the probation period, in writing, to up to 4 months in case of employees who perform highly technical, complex work that is difficult to evaluate, and to up to 6 months in case of employees who perform management duties.

In an employment contract for a limited period of time, the parties may set forth a probation period in writing, and its duration cannot exceed 15 days in case of non-qualified employees, or 30 days in case of qualified employees. Angolan law does not define qualified and non-qualified, but the common practice is that qualified employees correspond to positions that involve technical complexity, a high degree of responsibility or special qualifications as well as those carrying out functions of trust.

Employers with more than 50 employees must, in order to organize the work and labor discipline, draft and approve employee handbooks, guidelines, instructions, service orders and work rules defining rules for the technical organization of work, performance of work and work discipline, delegation of powers, employee job descriptions, safety, hygiene and health protection of work, performance indicators, a remuneration system, working hours for the several sections of the company or work center, control of entrances and exits and circulation within the premises of the company, and surveillance and control of production.

Employers with 50 or fewer employees may, but are not required to, implement employee handbooks on the matters described above.

Third-party approval

Whenever the employee’s handbook or any other rules and regulations establish rules on performance and discipline, remuneration systems, work performance or safety, hygiene and health protection at work, the employer must forward such regulations for information and registration purposes to the General Labor Inspectorate.

Portuguese. Nevertheless, employment contracts and other documents may be drafted in a bilingual template.

Employees entitled to minimum employment rights

All employees are entitled to minimum employment rights.

Working hours

Maximum daily and weekly working hours are 8 hours per day and 44 hours per week. Overtime pay is required for hours worked in excess of these limits. These limits are inapplicable to employees who perform direction and leadership duties, duties of inspection, or provide direct support to the employer (ie, employees who may be exempt from a work schedule). In case the employee usually performs their work outside the company's premises, an exemption regime may also be agreed upon by the parties, in which case those limits shall not apply. Typically, employees under the exemption regime are entitled to an exemption bonus.

Overtime may occur with an extraordinary increase in workload, to prevent serious damage or if due to majeure force. It is subject to the following maximum limits: (a) 2 hours per day, (b) 40 hours per month and (c) 200 hours per year.

Overtime must be compensated with additional payment (ie, an increase of hourly rates) up to 30 hours per month: 50 percent, 30 percent, 20 percent and 10 percent depending on whether it is a large, medium, small or micro company dependent on number of employees and turnover. A company which is a subsidiary or branch of a company with headquarters abroad always qualifies as a large company. Overtime that exceeds that limit is paid for each hour at an additional 75 percent, 45 percent, 20 percent and 10 percent depending on whether it is a large, medium, small or micro company.

The minimum wage is established by Presidential Decree. It is set out as a general minimum wage, but there is also a minimum wage for trade and extractive industry groups, transport services and manufacturing groups and agriculture groups. Under the Decree currently in force, the general minimum wage is AOA32,181.15. The following sector-specific minimum wages also apply:

  • Trade and extractive industry groups: AOA48,271.73
  • Transport services and manufacturing groups: AOA40,226.44 and
  • Agriculture groups: AOA32,181.15.

Minimum 22 working days per year, plus 12 public national holidays.

Sick leave & pay

Employees are entitled to take off as much time as they need for sick leave. For large and medium companies: In case of incapacity to work due to illness or common accident, pay is required in the amount corresponding to 100 percent of the base salary for a period of 2 months. For as long as the employee is not entitled to protection in case of illness or common accident from the social security authorities, the employer must pay to the employee 50 percent of salary from the 3rd to the 12th month.

In case of small and micro companies: The employee is paid, in case of illness or common accident, the amount of 50 percent of the base salary within 90 days, after which the contract is terminated by expiration if the condition of illness remains.

Maternity/parental leave & pay

A pregnant employee is entitled to a paid maternity leave of 3 months. The amount of the maternity allowance is equal to the average of the 2 best monthly salaries from the 6 months preceding the commencement of the maternity leave. The maternity allowance is paid directly by the employer to the employee and, subsequently, the Social Security services reimburse the employer in full. Fathers are not entitled to any leave on the birth of a child; it is only considered as a justifiable reason for absence from work for 1 day.

Other leave/time off work

Employees may also be entitled to leave for other purposes, such as for their wedding; fulfillment of legal or military obligations which must be performed within the normal working period; attendance to tests by working students; attendance of training, professional proficiency, professional qualification or job conversion courses authorized by the employer; participation in cultural or sporting activities, either in representation of the country or the company or in official contests; the performance of necessary and urgent action in the exercise of leading tasks in labor unions as a union representative or as a member of the employee’s representative body; or the  participation of the employee as a candidate to general or municipal elections approved by the competent authority.

Discrimination based on the following protected characteristics is prohibited: race, color, gender, ethnic origin, marital status, origin or social rank, religious beliefs, political opinion, union affiliation and language.

There is no special provision in this regard in Angola. Protection is only granted in the course of criminal action at the request of a whistleblower or by decision of the Public Prosecutor's Office.

Both employer and employee must pay contributions to social security in Angola to cover various employee benefits (eg, maternity leave payment and retirement pension). The employer must withhold the contribution due by the employee and deliver both contributions (ie, employer and employee) to social security every month.

Current general rates are 3 percent of the gross wage for the employee and 8 percent for the employer.

Employees with a minimum contributory period (ie, 35 years) qualify for a retirement pension at age 60 or in cases of total incapacity.

Employers have no legal obligation to provide complementary or supplementary social benefits in addition to the social coverage provided for by the social public scheme. However, some companies – mostly large companies or multinational companies who have their own schemes worldwide – set up and provide private complementary health and pension schemes to their employees.

The Data Privacy Law No. 22/11, June 17 governs Angolan data privacy and determines, in general terms, how to collect, use, disclose, store and give access to "personal information."

There is no specific regulation on employee data privacy.

Provided that the same business activity is maintained, the new employer takes the position of the former employer in the employment contracts and takes their position in respect of the rights and obligations arising from the employment relationships. This is the case even if the employment contract is terminated before the transfer. The new employer takes their position as the employer of such former employees in respect of due and non-paid credits. All credits, rights and obligations of the employer arising from the execution and implementation of the employment contract, its violation or termination are subject to a statute of limitations of 1 year starting on the day following the day of termination of the contract. Employees keep the same seniority and acquired rights which they had in the service of their former employer.

The new employer undertakes the obligations of the former employer limited to those incurred during the 12 months prior to the modification, provided that, up to 22 business days prior to the modification, the new employer gives notice to the employees that they must claim their credits up to the 2nd business day prior to the date scheduled for such modification. Within 22 business days following the modification of employer, the employees have the right to terminate the employment contract with prior notice, but this does not confer any right to compensation.

Employee representative bodies are permissible but not mandatory.

Trade unions are not common in Angola.

In order to carry out their duties, trade union representatives are entitled to 4 paid hours a month but must notify the employer in advance of the date and number of days they require for the exercise of trade union functions. Employers are obliged to provide a suitable place for workers' meetings whenever this is requested by the union representatives. Special protections against dismissal are granted to employees who perform, or have performed, duties as union representatives, either as leaders or delegates, or members of the employees’ representative body performing union-related activities.

Unilateral termination by the employer: dismissal based on objective grounds (ie, redundancy reasons); disciplinary dismissal with just cause (ie, based on serious breach of the employee's duties).

Termination without cause (with notice): only for employees hired under an employment contract of service commission regime (a particular type of contract for high-level employees which provides flexibility for termination but is not common).

Other termination causes: mutual agreement, termination by the employee (ie, termination with notice or constructive dismissal with just cause), expiration (ie, fixed-term and open-term contracts or retirement).

Employees subject to termination laws

All employees.

Restricted or prohibited terminations

Special protection against dismissal is granted to employees who perform, or have performed, duties as union representatives, either as leaders or delegates, or members of the employees’ representative body performing activities; women covered by the regime of maternity protection; war veterans as per the definition provided by the applicable law; employees under the legal age; employees with a reduced work capacity or with a disability degree equal or higher than 20 percent.

As a general rule, a copy of the notice served on the employee must be forwarded to General Labor Inspectorate.

Third-party approval for termination/termination documents

Except in respect of protected employees, third-party approval is not required to terminate an employment.

Mass layoff rules

If economic, technological or structural circumstances occur, which may be clearly demonstrated and which involve an internal reorganization or conversion, or the reduction or the shutting down of activities, which makes it necessary to eliminate or significantly change job positions, the employer may terminate the employment contracts of the employees who perform such job positions.

Collective dismissal rules are triggered if the dismissal involves at least 20 employees.

Information to the General Labour Inspectorate is required. However, there is no need to obtain approval for termination.

The General Labor Inspectorate may undertake the diligence deemed necessary for clarification of the situation and, in case of a collective dismissal, during the period in which the evaluation of the General Labor Inspectorate occurs, the employer may promote a meeting with the representative body or with the committee appointed for the purpose of exchange of information and clarification and may forward the conclusions of the meetings to the General Labor Inspectorate.

For individual dismissals based on objective grounds (up to 20 employees): the employer must forward, at least 30 days in advance, prior notice of dismissal to the employee or employees who occupy the job positions to be extinguished or transformed.

For collective dismissal: the prior notice is 60 days.

Notice periods in case of term contract: 15 business days if its duration is equal to or higher than 3 months.

Statutory right to pay in lieu of notice or garden leave

Payment in lieu of notice is permitted (and required if the notice period is not honored).

Garden leave is allowed during the notice period.

Fair dismissal based on objective grounds (redundancy/collective dismissal):

  • Large companies: compensation corresponds to 1 base salary for each year of effective service up to the limit of 5 and an additional 50 percent of the base salary multiplied by the number of years of service that exceed such limit
  • Medium companies: compensation corresponds to 1 base salary for each year of effective service up to the limit of 3 and an additional 40 percent of the base salary multiplied by the number of years of service which exceed such limit
  • Small companies: compensation corresponds to 2 base salary and an additional 30 percent of the base salary multiplied by the number of years of service which exceed the limit of 2 years

Fair disciplinary dismissal: no severance.

Higher severance payments may be agreed and are usual as a way to avoid litigation.

A clause of the employment contract which restricts the activity of the employee for a period of time, which may not exceed 3 years from the termination of the contract, is lawful if the following conditions are met: (a) such clause is included, in writing, in the employment contract, or in its addendum; (b) the activity performed may cause real damage to the employer and may be considered as unfair competition; (c) the employee is paid a salary during the period of restriction of work: the corresponding amount will be included in the contract or its addendum, and it must be taken into account, in its calculation, the fact that the employer may have incurred in significant expenses in the professional training of the employee.

A clause which requires an employee who benefits from professional improvement or higher level education at the expense of the employer to remain at the service of the same employer for a certain period of time, provided that such period does not exceed 1 year, in case of training of professional improvement and up to 3 years in case of courses of high level education, is also lawful if established in writing. In this case, the employee may release themselves from remaining at the employer’s service by repaying to the employer the amount of the expenses incurred by the employer, in proportion to the remaining time until the term of the agreed period. The employer that hires the employee within the period of restriction of activity in the company is jointly liable for the damages caused by the employee or for the amount not returned by the employee.

In principle, statutory rights cannot be waived and any waiver of such rights will be null and void.

Discrimination

Fine corresponding to 5 to 10 times the average salary paid by the company.

Unfair Dismissal

The employee may challenge the validity of the dismissal before the labor courts.

If the relevant court declares the dismissal to be unlawful, by final judgment, the employer must immediately re-instate the employee in the same job position and benefiting from the same previous conditions, or, alternatively, shall indemnify the employee (compensation is different depending on whether it is a large, medium, small or micro company and the cause of dismissal).

In addition to re-instatement or the compensation, the employee is entitled to the base salaries they would have received if they had continued to perform work, until the date on which the employee finds a new job or up to the date of final judgment, whichever comes first, with a maximum limit of 6 months of base salary for large companies, 4 months to medium companies and 2 months for small and micro companies.

Failure to inform and consult

Not applicable.

Typically, non-compliance with employment laws leads to administrative proceedings which may lead to the payment of fines. If such non-compliance is based on violation of rights that deserve protection under criminal law, it may also lead to this type of judicial proceedings.

João Guedes

João Guedes

Daniela Rosa

Daniela Rosa

Islândia Ribeiro

Islândia Ribeiro

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Rules in transactions/business transfers

transfer of business labour hire

Where there is an asset transfer that qualifies as a business transfer, all obligations arising from the employment contracts that the transferor has executed with its employees are taken on by the transferee after the transfer. Employment contracts continue with the transferee and the employees retain their seniority with the transferor and the rights arising from their contracts. In all cases, the employees may provide their written consent before the transfer. Without such consent, the employee may terminate the employment, with the right to compensation.

Although, in practice, both internal consultations and collective consultation with trade unions are required before a business transfer takes place, the transferor and the transferee are not required by law to inform or consult employees on a business transfer.

The transferor and the transferee are jointly and severally liable for any dismissals that arise due to the transfer.

Last modified 10 May 2023

transfer of business labour hire

At common law, employees cannot be transferred from one employer to another without their consent.

Under the Fair Work Act, there are rules which apply if there has been a "transfer of business." The transfer of business rules apply when there is a connection between 2 employers – including the sale and purchase of all or part of a business, certain outsourcing and in-sourcing arrangements and where the 2 employers are associated entities – and the new employer agrees to employ some or all employees of the old employer within 90 days and there has been no significant change to the work performed by those employees. The main effect of the transfer of business rules is that a transferrable instrument (ie, a collective labor agreement, such as an enterprise bargaining agreement) that covered the employee before the transfer will continue to apply after the transfer and all service is regarded as continuous and accrual of leave benefits transfer with the employee, with some limited exceptions. The Fair Work Commission can make certain orders altering the effect of the transfer of business rules if it deems it appropriate.

Last modified 24 Mar 2023

transfer of business labour hire

Automatic transfer under the Austrian rules implementing the EU Acquired Rights Directive in a business sale or service provision change. Significant restrictions on changing terms and conditions following a transfer. Duty to inform and consult with employees and/or the works council, if any. Any dismissal connected to the transfer is void unless for a good reason.

Last modified 15 Mar 2023

transfer of business labour hire

No automatic transfer principles and no laws covering business transfers. Employees transfer through termination and rehire in an asset deal.

transfer of business labour hire

Automatic transfer under the EU Acquired Rights Directive/Collective Bargaining Agreement no. 32, in a business sale or service provision change. Significant restrictions on changing terms and conditions following a transfer. Duty to inform and consult with employee representative bodies, or, in absence of employee representative bodies, provide this information directly to employees. Any dismissal connected to the transfer is unfair unless for an economic, technical or organizational reason.

Last modified 30 Mar 2023

transfer of business labour hire

There is no obligation to notify the government before asset or share deals. There are significant restrictions on changing terms and conditions of employment.

transfer of business labour hire

In most jurisdictions, legislation exists which will either:

  • Require the transfer of employees as a result of a sale of a business or
  • Provide that employees who accept an offer of employment with, or simply continue to be employed by, the purchaser will have their employment deemed continuous and their past service honored.

Unless a contract or collective agreement provides a right or option to claim termination amounts, employees accepting a purchaser's offer of employment, either expressly or by continuing in employment, will not be entitled to claim termination amounts from the seller.

transfer of business labour hire

There is no obligation in Chile to inform unions or labor authorities of any transaction or business transfer.

Chilean law permits the transfer of all or part of a business, in which case, in principle, the new company that continues the operations will be considered the employer of the employees who work for that business. Under this scenario, the employees maintain seniority as well as all their rights and obligations under the employment agreements and practices in place with the former company, which must be honored by the new employer.

If the new company must change the employment conditions of the employees who will be transferred with the business, termination of the employment agreement by the transferring company and a new employment agreement with the new company generally are the most suitable solutions.

Last modified 16 Mar 2023

transfer of business labour hire

  No automatic transfer of employment in an associated company transfer or change of business ownership. Therefore, the previous employer must terminate the employee's employment contract, and the new employer must offer – and the employee must accept – employment. If the new employer recognizes the service years with the previous employer, then the previous employer may be able to avoid liability for a severance payment.

transfer of business labour hire

Employment transfers may be implemented via employer substitution or the assignment of employment agreements, or by termination and rehire. Employees transferred by substitution or assignment are entitled to receive at least the same benefits and to perform their work subject to the same terms and conditions as before the transfer. The employer who has been substituted is jointly responsible with the new employer as to the labor obligations arising prior to the employer substitution.

An employer substitution occurs, regardless of the will of the parties, when the following 3 criteria are met:

  • Change of employer (for any reason)
  • Continuity of establishment (understood as the core business of seller) and
  • Continuity of employment agreement.

transfer of business labour hire

Czech Republic

Automatic transfer under the Transfer of Undertakings Directive 2001/23/EC and the Czech Labor Code where there is a transfer of an employer’s activities or tasks, or part thereof. Duty to inform and consult with employees and employee representatives. Protection of employees against significant deterioration of working conditions (ie, significant restrictions on changing terms of employment following transfer and rights to claim severance pay in case of deterioration). Employees cannot be dismissed by virtue of a transfer.

transfer of business labour hire

Under the Danish Act on Employees' Rights, in the event of Transfers of Undertakings, employees' contracts of employment transfer automatically in the event of a business transfer or service provision change.

There are certain requirements for employers to inform and consult with their employees prior to a transfer.

Dismissals due to the transfer of an undertaking, or part thereof, will not be considered reasonably justified unless the dismissal is due to economic, technical or organizational reasons entailing changes in the workforce.

transfer of business labour hire

The Employment Contracts Act stipulates that, on the transfer of an undertaking, existing employees transfer on their existing employment terms. The Act on Co-operation within Undertakings stipulates information obligations as regards to the personnel. Employees cannot be dismissed merely because of a business transfer, and dismissals or change of employment terms are possible only on normal grounds after the transfer. Employees or unions cannot object or prevent the transfer, but an employee who is affected by the business transfer is entitled to resign with a shorter notice period. A share sale is not considered a transfer of undertaking.

Last modified 27 Mar 2023

transfer of business labour hire

Automatic transfer of the employment contract under the EU Acquired Rights Directive/Article L. 1224-1 of the French Labor Code in case of a modification of the employer's legal situation (eg, a sale or merger) and provided the criteria set by case law are met, meaning that it is a transfer of a standalone business that maintains its identity within the transferee.

In case of a partial transfer of undertaking, the transfer of protected employees will require the labor inspector's prior approval.

In share or asset deals, it is required for the impacted companies to consult with their Social and Economic Committee ( Comité Social et Economique or CSE). Between 15 days and 2 months (3 months in rare situations) of consultation may be required depending on the circumstances.

Under certain circumstances, employees of SMEs must be informed of a proposed sale of the business or of shares to give them the opportunity to make an offer, although there is no obligation on the employer's part to accept any such offer.

Last modified 12 Apr 2023

transfer of business labour hire

Automatic transfer of employment under the EU Acquired Rights Directive/Germany's transfer of business (Section 613a of the Civil Code) rules in case of an asset deal or service provision change. Employees shall receive detailed written information prior to the transfer and may object to the transfer within 1 month after receipt thereof.

There is a duty to inform and consult with the works council. Significant restrictions on changing terms and conditions following a transfer exist. Any dismissal connected to the transfer would be unfair; dismissals for other reasons are possible.

transfer of business labour hire

Hong Kong, SAR

No automatic transfer of employment. This includes an associated company transfer or change of business ownership, or a merger situation where the employment entity is changed. Therefore, the previous employer must terminate the employee's employment contract, and the new employer must offer – and the employee must accept – employment. If the employee accepts employment with the new employer or unreasonably refuses employment with the new employer in circumstances where the offer of new employment is on the same terms or terms and conditions no less favorable than those with the previous employer, then the previous employer may be able to avoid liability for a severance payment, subject to satisfaction of other conditions. There is no duty to consult, either individually or collectively, with employees or employee representatives.

transfer of business labour hire

Where there is the transfer of a business, there will be an automatic transfer of employment relationships existing at the time of the transfer. The entire employment relationship, with all rights and obligations, will transfer.

Duties to inform the authorities and to inform and consult with the works council exist. Any dismissal based purely on the fact of the transfer is unfair and unlawful.

These rules do not apply to share deals or to a business transfer when the transferor is subject to a liquidation (ie, insolvency) procedure.

transfer of business labour hire

Indian employment law does not provide for the automatic transfer of employees. ID Act provides that, upon transfer of the ownership or management of an undertaking, every ''workman'' who has been in continuous service in any industry for at least 1 year (ie, 240 days) will be deemed to have been retrenched (ie, terminated) and will be entitled to retrenchment compensation (equivalent to 15 days' average pay for every completed year of continuous service or any part thereof in excess of 6 months) and to receive 1 months' notice or wages in lieu thereof, unless the following applies:

  • The workman consents to their employment being transferred to the transferee
  • The transferee agrees to provide the employee with continuity of service on terms no less favorable than those which applied prior to the transfer

On and from the date of transfer, the transferee steps into the shoes of the transferor and becomes responsible for liabilities and obligations relating to such workmen including central and state taxes, provident fund contribution, gratuity, accident compensation and employee state insurance contribution.

With respect to liabilities prior to the date of transfer, the transferor and transferee both shall, in accordance with ESI Act and EPF Act, be jointly and severally liable to make provident fund and insurance contributions in respect of the period up to the date of the transfer, provided the liability of the transferee is restricted to an amount equivalent to the value of the assets obtained by way of the transfer.

Employees other than workmen usually resign from their service and are reappointed by the transferee unless they do not wish to transfer. In the event the transferee agrees to provide continuity of service, that continuity will then be reflected in the employment contract.

Last modified 17 May 2023

transfer of business labour hire

Employees are not automatically transferred on a business transfer, which includes a merger. Indonesia does not have TUPE or TUPE-style regulations. Employees should be consulted, and the following 3 options are possible in relation to permanent employees:

  • The employee is not willing to continue their employment with the new employer.
  • The new employer is not willing to accept the employee.
  • The new employer and the employee are willing to continue the employment as if no business transfer has occurred, with the employment relationship continuing on the basis of the same terms and conditions (or better) as before the transfer, and usually carrying forward accrued seniority. Employees cannot be given less beneficial terms unless they are terminated by the former employer or made redundant and rehired by the new employer. In that case, the new employer may rehire on its own terms.

Regardless of the reason for termination, in the event of a business transfer as explained above, the employee must be paid a certain amount in severance pay plus a term of service recognition payment, if applicable, and compensation, if applicable.

A non-permanent worker who chooses not to accept a transfer of employment offer, or who is not offered a transfer, is generally entitled to receive the wages for the remaining period of their FTC.

No protection against dismissal for employees in a business transfer. However, as with nearly all terminations of employment, unless the employer and employee reach agreement, the termination must follow the industrial relations dispute settlement procedure before the employee's employment may be terminated, and severance entitlements must be paid.

transfer of business labour hire

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations transpose the Acquired Rights Directive and provide for automatic transfer of employees with undertakings – or parts of undertakings – which retain their identity post-transfer.

On a business transfer, there is also a duty to inform and consult with employee representatives and a prohibition on transfer-related dismissals, unless dismissal is justified on economic, technical or organizational grounds.

transfer of business labour hire

Acquisitions that entail change of ownership will generally not result in changes in employment relations. Transfer of employees to a new employer as part of an asset transfer requires the employees consent. This can be achieved through assumption of employment arrangements by buyer (including seniority-based rights) or through a "fire-rehire" approach (there may still be transfer of residual liabilities deriving from the period of employment preceding the transfer).

transfer of business labour hire

Automatic transfer of those employees who belong to the transferred business or branch of business, without any interruption of the employment, to the transferee, regardless of the employees' consent. The transferred employees maintain all the rights to which they were entitled with the transferor. The transferor and transferee are jointly liable for entitlements that the transferred employees had at the time of the transfer. Duty to inform and consult with employee representatives.

transfer of business labour hire

In an acquisition by business transfer, employees of the selling company will continue as employees of the selling company. If employees are to be transferred to the buyer, it is typical for the employee to resign from the selling employer and then be newly hired by the buyer under a new employment contract executed by the employee.

In a merger, the merged entity will cease to exist, and the surviving entity shall succeed to the contractual obligations of the merged entity, including employment agreements. Consequently, employees of the merged entity will automatically become employees of the surviving entity, keeping terms and conditions of employment including those under the merged entity's work rules.

In a statutory company split, the split of the employees should be handled in accordance with the Labor Contract Succession Act, and some employees may automatically transfer with the business that is being transferred. The splitting company must provide notice, in writing, as to the split-plan or agreement to the employees who will be transferred at least 2 weeks before the company split’s approval. An employee has the right to object within 2 weeks of receiving the notice if they are:

mainly assigned to the target business but not included in the transfer to the purchaser or

not mainly assigned to the target business but included in the transfer to the purchaser.

transfer of business labour hire

Kenya does not have a specific law governing employment on the transfer of a business. Normally, this is treated as a redundancy irrespective of whether alternative employment is offered by the transferee at no less favorable terms with recognition of past years of service with the transferor. Employees are terminated by the vendor, and new employment contracts with the purchaser are to be entered into simultaneously.

transfer of business labour hire

Employees transfer through termination and rehire in an asset deal.

Last modified 1 Apr 0023

transfer of business labour hire

In case of business transfers falling under the scope of the EU Acquired Rights Directive, as implemented in Luxembourg, all employment contracts existing at the date of the transfer must be maintained with the new employer. All employees' rights are maintained and transferred to the transferee.

Duty to inform and consult the employees' representatives and notify the transfer to the ITM.

Any dismissal connected to the transfer would be unfair unless for an economic, technical or organizational reason.

transfer of business labour hire

No provision for automatic transfer of employment. Employees will remain employed by the seller in a sale of business transaction. The "transfer" of employees in a sale of business transaction is effected by a termination (by the seller) and rehire (by the buyer), and in this scenario the seller will be exempted from paying any statutory severance payment if the new offer from the buyer is under terms and conditions of employment not less favorable than those under which the employee was employed by the seller. An employee will not be entitled to statutory severance payment if the employee unreasonably refuses the new offer.

transfer of business labour hire

Employment transfers may be implemented via an employer substitution letter. Employment transfer through substitution of employer is only effective if the assets related to the business are also transferred. Transferred employees are entitled to receive at least the same benefits and perform their work subject to the same terms and conditions as before the transfer. The employer who has been substituted will be jointly responsible with the new employer for a period of 6 months.

transfer of business labour hire

Automatic transfer pursuant to article 19 of the Labor Code in a business transfer.

Information must be sent to the employee's representatives, if any exist in the company, but no authorization or consent is required.

transfer of business labour hire

In the event of a transfer of a business, the employees are automatically transferred to the new employer unless the employees decide to terminate the employment contract. The rights and obligations under existing employment contracts and collective labor regulation instruments, including those arising from an employee's length of service, pass to the new employer.

Communications must be made to the Ministry of Labor and to the trade union, if any, informing them of the transfer, date, reasons, consequences thereof and intention to respect the rights acquired by the employees in the previous labor relationship. The law does not set a minimum time period, but, in practice, it is appropriate for communications to be made 30 days in advance.

Last modified 14 Mar 2023

transfer of business labour hire

There are no specific rules governing employment implications of transactions/business transfers, other than as below.

An employer must pay a statutorily prescribed severance payment to the affected employees in accordance with relevant laws in the case of the employer's breach of contract, liquidation, sale of the business, winding-up the business or reducing the number of workers.

The severance payment is based on the length of time the employee has continuously served the employer, and on the basis of the employee's last salary (without overtime premium). See '' severance " below.   

transfer of business labour hire

Netherlands

Automatic transfer under the EU Acquired Rights Directive/Dutch civil code in a business sale or service provision change. Significant restrictions on changing terms and conditions following a transfer. Duty to inform and consult with employee representatives. Any dismissal connected to the transfer would be unfair unless for an economic, technical or organizational reason. Works council has the right to advise.

transfer of business labour hire

New Zealand

New Zealand law does not contain any automatic transfer provisions except for a few limited classes of employees.

If a business is sold, transfer of employees depends on the nature of the sale.

Where a business, or part of the business, is acquired by way of an asset and goodwill purchase, the employees do not automatically transfer to the new owner but must agree to do so. Where a business, or part of the business, is acquired by way of a share purchase, the employment of employees remains unchanged.

Special provisions apply for businesses that employ "vulnerable employees."

There are also requirements under the Employment Relations Act 2000 for there to be a process for consultation with staff in business transfer situations. These are called ''Employment Protection Provisions'' and are process requirements only, meaning there is no substantive right to transfer.

Last modified 14 Apr 2023

transfer of business labour hire

No legislation on transaction/business transfers except if provided in the employment contract. Where the contract of employment does not provide for a transfer of undertaking, consent of the employees is required for the transfer of the employment. Termination and rehiring is an alternative.

The Labour Act prescribes that where an employer seeks to transfer any employee to another employer further to a transfer of business, the transfer shall be subject to the consent of the employee and the endorsement of the transfer upon the contract by an authorized labour officer. The Labour Act is silent on when employee consent must be secured. However, it is best practice to secure consent before or at the time the transaction agreement is signed in order to avoid potential issues. This process is only applicable to the class of workers that are covered by the Labour Act, i.e., manual labour or clerical workers.

For other categories of employees not covered by the Labour Act, employers are not required to notify or inform employees prior to entering into transactions for the transfer of a business. The transfer of employees, and any consequential notifications, will therefore depend on the terms of the employment contract.

Last modified 31 May 2023

transfer of business labour hire

Automatic transfer under business transfer regulations. Rights and obligations under the employment contracts are transferred to the new employer. Restrictions on changes to terms and conditions following a transfer. Duty to inform and consult with employee representatives. The transfer is not in itself grounds for dismissal.

Last modified 5 Apr 2023

transfer of business labour hire

Omani employees automatically transfer to the purchaser; however, expatriate employees do not.

transfer of business labour hire

Any corporate reorganization, business purchase, downsizing or any similar matter:

  • Is not a valid cause for individual termination and
  • Should not affect the salary and conditions of the employees involved, unless there is prior written agreement with the employees.

In case of a merger, the change of employer occurs automatically due to the method of transfer, so employee consent is not needed. The employment continues with the surviving company on existing terms. If the surviving company wants to change the existing terms, it must obtain consent in writing from each employee with respect to these new terms.

transfer of business labour hire

Philippines

In a share deal, employment continues.

In an asset deal, the parties may agree to assume the employment agreements, which requires employee consent. Alternatively, employees may be terminated and rehired, which would result in the seller being liable for separation pay the amount of which depends on the grounds for termination (i.e. redundancy, retrenchment or closure of business).

transfer of business labour hire

Automatic transfer of employees under the EU TUPE Directive and the Polish Labor Code. The transferor and the transferee are jointly and severally liable for the obligations resulting from the employment relationships that arose before the transfer of a part of an undertaking. They have certain information and consultation obligations towards the employees and the employees' representatives (ie, trade unions and works council). A transferred employee has the right to terminate their employment relationship within 2 months of the transfer date, without notice, providing 7 days' prior notice. Termination according to this procedure has the same legal effect as if the employment relationship were terminated with notice by an employer. Dismissal solely due to transfer is unlawful. The transferee is obliged to apply any CBA adopted by the transferor and applicable to the transferred employees for a period of 1 year after the transfer date, unless the transferee applies more favorable conditions than those resulting from the CBA.

transfer of business labour hire

Automatic transfer under the EU Acquired Rights Directive and the Portuguese Labor Code in case of change of employer (eg , sale of an independent standalone business unit, merger or spinoff). Right of the employees to maintain the same terms and conditions. The transfer is not by itself a cause for fair dismissal. Duty to inform, and, in case labor measures are planned (eg , change of work center or change of employment conditions), duty to consult with employee representatives. Under certain circumstances, the employee may oppose the transfer or may resign after the transfer, with entitlement to legal compensation (ie, constructive dismissal).

transfer of business labour hire

Automatic transfer under the EU Acquired Rights Directive and Romanian Transfer of Undertaking Law No. 67/2006 (TUPE) in asset deals typically involving a business or undertaking sale. This entails transfer of the rights and obligations arising from the transferred employees' individual employment agreements and the applicable collective bargaining agreement – for its duration – in force on the transfer date. There are restrictions on changing terms and conditions of employment following a transfer. There is a duty to inform and, in certain cases, to consult with the employee representative bodies for both the transferor and the transferee. Any dismissal connected to the transfer is prohibited.

transfer of business labour hire

Employees must consent to a transfer of employment and generally cannot be dismissed because of the transfer. It is possible to terminate the agreements with the general director, their deputy and chief accountant within 3 months of a change of owner in certain instances.

Last modified 9 Aug 2022

transfer of business labour hire

Saudi Arabia

If the ownership of a company is transferred to a new owner, or a change takes place in its legal form through merger, partition or otherwise, the employment contracts shall remain in force, and service shall be deemed continuous. As for the employees' rights accrued for the period prior to the change, such as wages or unrealized EOSG on the date of transfer of ownership, the predecessor and the successor shall be jointly liable.

However, in the case of an asset sale, employees generally transfer through termination and rehire, but the predecessor and the successor may agree to transfer all the previous rights of the employee to the new owner with the written consent of the employee. If the employee disapproves, they may request the termination of their contract and collect their dues from the predecessor.

transfer of business labour hire

Under the EA, EA Employees are automatically transferred if an undertaking or part thereof is transferred from one person to another as a going concern. There are notification and consultation requirements required under the EA relating to the automatic transfer of EA Employees. Non-EA Employees do not transfer automatically and instead must have their employment contractually terminated by the transferor on a business transfer, after which they may then be rehired by the transferee or have their contracts novated.

transfer of business labour hire

Slovak Republic

Automatic transfer of employment under the EU Acquired Rights Directive/Slovak Labor Code's rules applies in case of a transfer of an economic unit (eg via sale of enterprise, or in certain cases via an asset deal).

Employees must receive detailed written information no later than 1 month prior to the anticipated transfer, and may object to the transfer. Duty to inform and consult with employee representatives applies. Significant restrictions on changing employment terms and conditions following a transfer apply. Any dismissal connected to the transfer will be deemed invalid; dismissals for other reasons are possible under the strict rules set forth by the Labor Code.

transfer of business labour hire

South Africa

Employees automatically transfer to the new employer by operation of law in the event of a transfer of a business or service as a going concern. There is no general consultation requirement, and employees transfer on terms and conditions that are, on the whole, not less favorable. Disclosure of information to employees required as well as the conclusion of a written agreement setting out a valuation of the accrued employee-related liabilities, with failure to do so resulting in limited joint and several liability for the 2 employers for a period of 12 months if an employee is dismissed for operational requirements. A dismissal that is related to a transfer is automatically unfair, but dismissals due to genuine operational requirements may still be implemented if the reason for dismissal is unrelated to the transfer.

Last modified 28 Feb 2023

transfer of business labour hire

South Korea

The transferee automatically assumes the transferor's responsibilities with regard to the employees, including their working terms and conditions as well as liabilities, unless the employees otherwise agree. Unless there is just cause, employees are protected against dismissal before or after the transfer.

transfer of business labour hire

Automatic transfer under the EU Acquired Rights Directive and Section 44 of the Workers' Statute in case of change of employer ( eg, sale of an independent stand-alone business unit, merger or spinoff). Right of the employees to maintain the same terms and conditions of employment. The transfer is not by itself a cause for fair dismissal. Duty to inform, and in case labor measures are planned ( eg, change of work center, change of employment conditions, collective dismissal), duty to consult with employee representatives.

transfer of business labour hire

The Swedish Employment Protection Act (EPA) enacts the European Union's Acquired Rights Directive regarding business transfers. The EPA provides that, in the event of the transfer of an undertaking or business, or a part thereof, from one employer to another, the rights and liabilities of the employer are also transferred. The transferor and transferee have a duty to inform and consult with trade unions if the respective company is bound by a collective agreement, or if any trade union whose members employed by the company will be affected by the transfer. Any dismissal connected to the transfer would be in breach of the EPA, unless for an economic, technical or organizational reason.

Last modified 10 Apr 2023

transfer of business labour hire

Switzerland

Automatic transfer of all employment agreements in case of transfer of business undertakings – mostly asset deals. Duty to inform and consult with employee representatives, if any – or, if none, with the employees.

transfer of business labour hire

Taiwan, Republic of China

There is no automatic transfer of employees in an asset sale. The new employer must inform the employees of the new terms and regulations and obtain the employees' formal consent to the offer of new employment. If an employee refuses to accept the new terms and conditions, the previous employer must make severance payments to the employee. There is also a duty to inform and consult with employee representatives (ie, unions).

In a merger and acquisition situation, 30 days' advance notice of the acquisition and the terms and conditions of employment with the new employer must be provided to the employees. Employees then have 10 days to accept or decline the offer with the new employer. The employee's failure to respond presumes consent. Past seniority must be recognized.

transfer of business labour hire

There is no automatic transfer of the employment relationship from one entity to another under the LPA. Employees are normally transferred in 2 ways:

  • The transfer of employment from the transferor to the transferee with the employee's clear written consent or with a tripartite agreement entered into between the transferor, transferee and the employee, stipulating that all rights and benefits enjoyed by the employee during their employment with the transferor will continue and the employee's length of service with the transferor will be recognized by the transferee, or
  • Full termination of the employee's employment with the transferor and signing of a new employment agreement with the transferee.

In the latter case, the transferor is liable for providing the employee with statutory severance pay and other compensation as provided under the LPA and the employee's employment contract. With the employee's employment fully terminated by the transferor, the transferee may offer the employee new employment with different terms and conditions, which may be less favorable than those offered by the transferor, and the employee's service with the transferor will not be recognized.

Change of ownership of business through shares acquisition

A mere transfer of shares in the employing entity is not considered a transfer of business or employer as the employing entity remains the same.

transfer of business labour hire

The Labor Code states that the labor contract remains in place between the worker and the employer if the legal status of the employer changes. In other cases, the transfer of an employee from one company to another would require an agreement between all three parties.

transfer of business labour hire

There are several provisions under separate laws governing transfer of employees from 1 employer to another:

  • Turkish Code of Obligations No. 6098 (TCO)
  • Turkish Commercial Code No. 6102 (TCC)

The provisions under the TCO govern transfer of employment contracts from a company to another in a broader sense, while the Labor Law specifically governs transfer of workplace and the TCC specifically governs transfer of employment contracts in corporate transactions.

The application of the above laws may differ depending on the nature of the transaction: whether the employees will be transferred through a spinoff or by way of a business transfer.

In the event of a spin-off transaction

If the employees are to be transferred to another entity within the context of a spinoff transaction to take place in Turkey, the provisions under the TCC will be applicable. According to Article 178 of the TCC, the employees will be transferred to the transferee with all rights and obligations unless the employees object to such transfer. In this regard, the TCC provides "a right of objection" to the employees.

Turkish law does not stipulate any specific requirement as to when and how a notification must be made to the employees. However, it is naturally advisable for the transferor to notify the employees in writing regarding the contemplated transfer before the spinoff is affected. Upon such notification, if the employees do not object to the transfer of their employment contracts, the transferee becomes their new employer once the spinoff transaction is effective.

If the employees are going to be transferred with exactly the same terms and conditions – that is, no special benefit will be provided to employees of different seniority or position – a template letter addressed to each employee will suffice.

If an employee objects to the transfer, their employment contract will be deemed terminated following completion of their notice period. In this event, the employee will be paid their outstanding salary and other labor entitlements (eg, annual leave entitlements, premiums or bonuses). The TCC remains silent on whether or not the employees become entitled to receive severance pay in the event of such termination. However, certain scholars opine that, in the event of such termination, the employees become entitled to receive severance pay. Importantly, as per the 3rd paragraph of Article 178, both the transferor and the transferee are jointly liable for payment of the employees' such entitlements, including severance pay.

In the event of a business transfer transaction

If the employees are to be transferred to the transferee within the context of a business transfer transaction to take place in Turkey, the provisions under the Labor Law and the TCO will be applicable.

According to the TCO, if the employment contracts will be transferred from 1 employer to another, the employees' prior written consent must be obtained. However, the TCO remains silent on what would happen if the employee were to not consent to the transfer. As modern Turkish labor law's main concern is protecting employees' benefits, it suggests permanence in employment relations. In line with this concern, contrary to what the TCC provides, Article 6 of the Labor Law states that the transfer itself does not constitute a just cause or valid reason for termination of the employment contracts on its own, and, if the employer intends to terminate the employee's contract, it must base the termination on economic or technological reasons or an organizational restructuring.

Contrary to what the TCC provides, Article 6 of the Labor Law should be taken into consideration.

transfer of business labour hire

Automatic transfer under the Employment Act and additional regulations on a transfer of business. Significant restrictions on changing terms and conditions following a transfer. Period of continuous service is preserved. Where only employees are being transferred or the employer is being changed, there is a duty to obtain the consent of employees and consult with employee representatives, if any.

If an employee transfers from one employer to another without necessarily transferring the business, in the absence of a written agreement between the new employer and the employee, terminal benefits must be paid within 2 months of the transfer. These include accrued but untaken leave and/or overtime, certificate of service and any other contractual benefits under the employee's old terms of employment.

Any termination connected to the transfer would be unfair unless for an economic, technical or organizational reason.

transfer of business labour hire

In the event of a change of a company's ownership or a company's reorganization (eg, merger or spinoff), employment continues with the company or its successor without change in terms and conditions. In case of an asset deal, however, employment must be terminated and rehired.

transfer of business labour hire

United Arab Emirates

No automatic transfer principles and no laws covering business transfers. Employees transfer through termination and rehire in an asset deal. Contracts of employment, residence visas and work permits must be addressed.

transfer of business labour hire

United Kingdom

Automatic transfer under the UK's Transfer of Undertakings (Protection of Employment) Regulations (TUPE) in a business sale or service provision change. Significant restrictions on changing terms and conditions following a transfer. Duty to inform and consult with employee representatives. Any dismissal connected to the transfer would be unfair unless for an economic, technical or organizational reason.

transfer of business labour hire

United States

None, except if it results in a plant closing or mass layoff, in which case employees are generally entitled to at least 60 days' notice, if feasible (see “Mass layoff rules” below). In an asset sale, employees may be transferred through termination and rehire.

transfer of business labour hire

When a business is acquired because of a share or stock purchase, there is no change to the identity of the employer under Venezuelan labor law. The buyer steps into the shoes of the seller and assumes all contractual and statutory rights and liabilities owed by or to its employees.

In contrast, where an asset purchase amounts to the transfer of a business (or part of a business), there is a change of employer, and the following rules apply:

  • All rights and duties of the transferor stemming from the employment contract as it exists at the date of the transfer must be transferred to the transferee.
  • The change of employer must be notified to the employee, the employees’ union and the Labor Inspector.

The old and new employer are jointly and severally liable for all employees’ vested rights at the time of the transfer, for up to 5 years from the effective transfer date. 

Employees who do not consent to the change of employer may resign with cause within 3 months from the date of the transfer and are entitled to severance payments equal to the amount they would have received in the event of dismissal without cause.

transfer of business labour hire

Upon a transfer of assets, change of ownership, division or separation, consolidation or merger, sale, lease out or conversion of the company’s form impacting the job of several employees, the previous employer must prepare a so-called labor usage plan. The previous employer and the successor employer must implement the labor usage plan. When employees’ employment contracts are terminated as a result of the transaction or conversion, the employer must pay a specific severance allowance, called a job-loss allowance, to the affected employees who have regularly worked for the employer for 12 or more months.

3 Ways to Transition Employment Contracts on Transfer of Business

transfer of business labour hire

Employees are often described as an organization’s most valuable asset. But unlike other assets, employees’ personal services cannot simply be assigned to a new employer without the consent of both employee and new employer.  Accordingly, a transfer of business resulting in the change of the employer’s legal identity constitutes an effective termination of employment in the form of a constructive dismissal. Businesses should actively manage how the transfer of employees occurs with a mind to reducing their liability.  There are several options that allow a business to mitigate against this risk and ensure a smooth transfer for its employees, including:

  • Assignment of contract;
  • Termination anticipating employee mitigation by offer of new employment; and
  • Novation of employment contract and offer of new employment.

Assignment of Contract

Courts have accepted the assignment of an employment contract by a parent company to a subsidiary company in cases where the employee assents.  An assignment means the transferee (the company acquiring the business who we’ll refer to as the “buyer”) takes on the employees on the same terms as their current contracts, which continue to operate without interruption. 

The benefit is if the employee accepts the assignment, they cannot later claim constructive dismissal.  The termination provisions, as well as all other terms of the contract which may be favourable to the buyer, will continue in place. 

Except in extremely clear cases, courts will not infer an employee’s consent to a transfer of employment, so best practice is to have the parties sign a tri-partite agreement to that effect.  This agreement should clearly state that the employee accepts the assignment of their contract to the buyer and releases the transferor (the company transferring the business, who we’ll refer to as the “seller”) from all obligations under the contract. 

Termination anticipating employee mitigation by offer of new employment

The most appropriate method when selling a business to an unrelated company is for the seller to terminate all employees and the buyer to offer new contracts to employees on substantially similar terms. 

In this scenario, the new employment with the buyer does not, on its own, end the seller’s obligation arising from the constructive dismissal.  However, employees who start employment with the buyer right away and on substantially similar terms to their employment with the seller significantly mitigate any potential damages caused by the dismissal. 

Employees may still experience some loss, for example, if the new terms of employment are not as favourable, or if their new employment is terminated before what would have been the duration of the notice period owed by the seller.  In those cases, the seller may remain liable for the unmitigated portion of the employees’ losses.  The buyer may also be liable for outstanding damages not paid out by the seller.  Businesses considering this method should do a careful review of all terms of employment and potential liabilities and agree to appropriate indemnification clauses prior to the transfer. 

Novation of employment contract and offer of new employment

“Novation of contract” means that the obligations between the parties have come to an end.  It creates more certainty than simply assuming an employee will fully mitigate their damages.  It is described by the Supreme Court of Canada as “a trilateral agreement by which an existing contract is extinguished and a new one is brought into being in its place.”

There are several factors that indicate the novation of a contract.  A strong factor is when the new offer of employment from the buyer states that accepting employment with the buyer indicates agreement to a complete discharge of the old obligations in substitution of the new contract.  Another indicator is where the seller paid the employee their contractual termination notice (or reasonable common-law notice) in exchange for a release indicating all obligations under the old contract were satisfied. 

Key takeaways for employers in Canada

Businesses should take time to clearly define when and how employee contracts will be dealt with during a transfer.  The method of transitioning employees to their new company and the resulting apportionment of liabilities should be explicitly set down in an agreement between the seller and buyer. 

transfer of business labour hire

Posted by Barteaux Labour & Employment Lawyers Inc.

Barteaux Labour and Employment Lawyers Inc. is Atlantic Canada’s only homegrown management-side labour and employment law boutique, now offering immigration law as a core area of practice. We assist all kinds of employers, from multi-national corporations to non-profits, public bodies, and small businesses across a broad range of industries. We have a diverse team providing services to a varied group of clients.

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Employee Transfer Agreements: Everything You Need to Know

Employee transfer agreements allow a company to transfer its employees to another company while keeping the original employment relationship intact. 3 min read updated on February 01, 2023

Employee transfer agreements allow a company to transfer its employees to another company while keeping the original employment relationship intact.

Because an employee transfer agreement involves two parties, the legal details can get complicated. You'll want a reputable lawyer to help you write the agreement.

Tips on Employee Transfer Agreement – About the Transfer

You'll want your lawyer to be present before you complete the form, which will likely include:

  • Employee's name, address, phone number, Social Security number, and ID
  • Employee's job title, department, work location, and employment date
  • Your own signature

If you need help with employee transfer agreements, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.

Definition of Employee Transfer Agreement

Under an employee transfer agreement, an employer can have its employees work for another company. The employee must give explicit or implicit content, and the original employer (let's call it Employer A) must fulfill its obligations to the employee. With employee consent, these transfers are legal.

In an employee transfer, the employee is essentially acquired by a new employer (we'll call it Employer B) while remaining employed by Employer A. This can be complicated because two separate employers are technically sharing the employee. Having a business plan can help.

Here's how it works:

  • The employee remains legally employed by Employer A. That means Employer A must pay wages and benefits (excluding illegal overtime ).
  • Aside from compensation, Employer B acts in Employer A's place.
  • Employer B must fulfill the terms of the employment contract between Employer A and the employee.
  • Employer B can't terminate the employment contract or change its terms for the worse.
  • Employer A is not bound to any terms that weren't in the original employment contract. Any new rights or obligations created during the transfer period apply only to the employee and Employer B.
  • Any obligations Employer A had to the employee now extend to Employer B — even if Employer B agreed to pay wages. The only exception is if both employers make a formal agreement about an employee's dismissal (which would be an amendment to the original contract).

Remember, an employee must give his or her consent to the transfer, either explicitly or implicitly. (If an employee simply starts working for Employer B, his or her actions imply agreement to the transfer.)

Employee Transfer Agreement Sample Clauses

In 2006 Intelsat Global Service Corporation agreed to transfer nearly all its employees to Intelsat Corp. A clause in their employee transfer agreement stated that they could amend the agreement from time to time, as long as no amendments would affect the issuer's ability to pay its loans.

An agreement between AFC and STEC in 1999 provides other examples of such clauses. These companies extended their original employee transfer agreement because STEC wanted to keep the deputy general manager for three more months to ensure a smooth management transition. This manager's work assignments would include training his or her replacement.

The agreement between these two companies included a clause stating that if the manager's replacement wasn't trained within the expected three months, the agreement could be extended — as long as all parties agreed and AFC had enough staff.

An employee transfer agreement may also include clauses such as the following:

  • The sellers have not breached any representation or warranty (as far as the buyers know), and the buyers do not know of anything that would excuse them from fulfilling their obligations.
  • The buyers, and anyone they designate, have the authority to carry out both the Employee Transfer Agreement and the Assignment and Assumption Agreement. They are also to fulfill its obligations — as long as all the approvals outlined in Schedule 3 are received.

Employment Relationship with Transferred Employee Despite Transfer Agreement – Employment Law - Germany

If two employers make a services framework agreement allowing for the transfer of an employee, two conditions would allow Employer B to establish an employment relationship with the new employee:

  • Employer A didn't have the legal authority to transfer employees in the first place, and
  • Employer B has integrated the employee into its business.

If both conditions are met, the new employer can establish an employment relationship with the employee.

Temporary Provision of Labor

Hiring temp employees is a flexible staffing method that helps companies limit their financial risks. An employer can loan employees to another business temporarily. In this scenario, the temporary employee is active in the other business but still remains employed by his original employer.

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  • Employment Contract Template
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I run a labour hire company. Is a transfer of employment to the client possible?

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By Vanja Simic Lawyer

Updated on August 13, 2015 Reading time: 5 minutes

This article meets our strict editorial principles. Our lawyers, experienced writers and legally trained editorial team put every effort into ensuring the information published on our website is accurate. We encourage you to seek independent legal advice. Learn more .

There can be no transfer without consent

What degree of control, if any, do you wish to maintain over the worker, who bears the liability for the transferred employee.

It is certainly possible for there to be a transfer of employment whereby an agency or labour hire employee becomes a temporary employee of the host business client. This may be done at the request of the host business client, at the insistence of the labour hire employer or as a natural incident of the working arrangement. However, before a transfer of employment can occur, certain aspects of the transfer must be considered.

A transfer of employment cannot occur, unless and until the employee either expressly or impliedly consents to the change. Thus, at the outset it is important to consult with the employee, make them aware of the proposed change and obtain their written consent to the same. Towards this end, it is prudent to draft a temporary and or permanent transfer agreement between the business host client, employee and your business. Such an agreement will take the guesswork out of the transfer by clearly defining the scope of the transfer, as well as the rights and responsibilities of all involved.

In undertaking a transfer of employment you must define what degree of control, if any, you wish to continue to exert over the transferred employee. You must decide whether you will play an active role in the day-to-day activities of the employee and, if so, to what degree. Alternatively, you may simply wish to act as a conduit for the business host client and pay the employees wages and deal with the ongoing costs, such as workers compensation and insurance.

Under the law, labour hire companies have a non-delegable duty of care to ensure that:

  • the host workplace is safe,
  • the host employer has in place appropriate safety systems,
  • the tasks for which the employee is hired are clearly defined, and that
  • the worker is provided with safe plant and equipment.

Accordingly, when undertaking a transfer of employment, it is paramount to ensure that you also transfer liability for the employee to the host business. The degree of liability transferred is up to you and it is possible for you and the host business client to share responsibility for the worker. The degree of liability maintained will depend upon your particular circumstances and preferences.

Whilst the transfer of an employee from a labour hire company to a host business client is possible, it brings with it certain considerations that must be addressed before a smooth and effective transfer can take place. Whether you are seeking to transfer an employee permanently or under a more temporary arrangement, our team of LegalVision lawyers would be happy to assist you with any questions or queries that you may have. Contact us on 1300 544 755 for more information.

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Managing people

transfer of business labour hire

Transfer of business 

There are many employment issues to deal with when a business is transferred from one employer to another. Read what you need to do. 

24 September 2021

The transfer of business provisions under the Fair Work Act 2009 apply where a business is transferred from one national system employer to another. This includes some insourcing and outsourcing arrangements and covers some changes of employer within corporate groups.

It means the transfer provisions under the Fair Work Act are based on the transferring of activity and an employee or employee going with that activity. There is no transfer of business for the purposes of the Fair Work Act unless at least one employee moves to the new employer. 

The intention of transfer of business provisions is to ensure the service of all employees who follow the business or activity are deemed to be unbroken by the transfer, and the period of service which the employee has had with the previous owner of the business is to be deemed service with the new owner. 

Provision is made in the Fair Work Act to protect the accrued entitlements of employees during a transfer of business.  

 When a transfer occurs 

 Section 311 of the Fair Work Act provides that there is a transfer of business if each of the conditions in ss311(1)(a)-(d) are satisfied, which are: 

  • one or more employees is terminated from the first employer 
  • the employee(s) become(s) employed by the second business within 3 months doing substantially similar work 
  • the work that the employee performs for the new employer is substantially the same as that performed for the old employer, and 
  • there is a connection between the two employers. 

Associated entities 

 Section 50AAA of the Corporations Act 2001 (Cth) defines an “associated entity” of another entity (the principal) in the following circumstances: 

  • the associate and principal are related bodies corporate 
  • the principal controls the associate 
  • the associate controls the principal and the operations, resources or affairs of the principal are material to the associate 
  • the associate has a qualifying investment in the principal, has significant influence over the principal and the interest is material to the associate 
  • the principal has a qualifying investment in the associate, has significant influence over the associate and the interest is material to the principal 
  • a third entity controls both the principal and the associate and the operations, resources or affairs of the principal and the associate are both material to the third entity. 

 The word “control” is defined in s50AAA of the Corporations Act  to mean when one entity controls another when the first entity can make decisions that determine the financial and operating policies of the second entity. 

Transfer between non-associated entities 

 Service with one employer (first or old employer) will count as service with another employer (second or new employer) that is not an associated entity of the first employer if the employee is a transferring employee in relation to a transfer of business from the first to the second employer. 

The following would be considered a connection between the two employers in a transfer of business situation: 

  • there is a transfer of some assets from one employer to another 
  • there is the outsourcing of work from one employer to another, which can occur regardless of whether any assets change hands 
  • there is an “insourcing” of work from one employer to another 
  • there is a transfer of employment between associated entities as defined in the  Corporations Act 2001 [Cth] .  

Section 311(3)(b) of the Fair Work Act states that there is a connection between the old employer and the new employer if the new employer or associated entity owns or has the beneficial use of some or all of the assets (whether tangible or intangible) that the old employer or associated entity owned or had the beneficial use of and that relate to, or are used in connection with, the transferring work. 

Transfer of assets: arrangement 

 Section 311(3) of the Fair Work Act provides one of the conditions of a transfer of business that must be satisfied is that there is a connection between the old and new employer as described in any of ss311(3-(6) of the Act. That is, there must be an arrangement between the new and old employer for “the beneficial use of assets” of the old employer “that relate to, or are used in connection with the transferring work”. The word “arrangement” is not defined in the Act, but the Explanatory Memorandum to the Fair Work Bill 2009 states that “arrangement” is intended to be interpreted “broadly”. 

 The relevant authorities on determining the meaning of “arrangement” propose that, while not legally enforceable, it requires: 

  • that there be communication between the parties to the arrangement, and 
  • that the parties must reach some understanding, and 
  • that there is some expectation that each of the parties will behave in a particular way. 

An arrangement is not an expectation that a party will behave in a particular way and it cannot be contrived. It requires some substance. 

Non-associated entities – transfer of assets 

In a case before the Fair Work Commission (FWC), an employee worked for the old employer in a café. The business was purchased by the new employer. The employee worked three shifts for the new employer doing the same work before he was dismissed. 

The FWC held that there was a transfer of employment because there was a transfer of business between the old employer and the new employer. There was a connection between the old employer and the new employer as the transfer of business involved a transfer of assets. Further, as the new employer had not informed the employee in writing that his previous service would not be recognised, the employee’s service with the old employer counted as service with the new employer.   Hill v Sahir T/A Cafe Moderno at Fountain Gate [2013] FWCA 668 (30 January 2013) (austlii.edu.au)

New employer ceased to outsource work 

In a case before (then) Fair Work Australia, the employee worked for the old employer, which provided labour to the new employer. After two years, the new employer ceased to outsource work to the old employer. The old employer terminated the employee’s employment, and she was employed by the new employer but dismissed after about three weeks. 

The employer was found to be a transferring employee in relation to a transfer of business. There was a connection between the old employer and the new employer because the new employer had ceased outsourcing work to the old employer. The employee was not informed in writing by the new employer that previous service with the old employer would not count as service with the new employer, and therefore it did not count. See  Thorne v Jura Australia Espresso Pty Ltd [2012] FWA 4954 . 

No relevant connection between employers 

 In a case before (then) Fair Work Australia, the employee worked as a security guard for the old employer, which provided site security under contract. A tender process resulted in the new employer being awarded the contract. The employee was offered employment with the new employer but was dismissed the following month. It was held that there was no connection between the employers, and therefore no transfer of business. As such, service with the old employer did not count as service with the new employer.  Szybkowski v Monjon Australia Pty Ltd t/as Monjon Australia Pty Ltd [2010] FWA 7321 (17 September 2010) (austlii.edu.au)

In another case before the Fair Work Commission, the employee had been employed by the old employer to work at a hotel. The old employer operated the hotel under a lease with the owners. The old employer abandoned the lease, and the owners leased it to the new employer. The new employer employed the employee to perform the same duties but later dismissed her. On appeal, it was found there was no connection between the old employer and the new employer because there was no evidence of a transfer of assets in accordance with any arrangement between the employers.   Appeal by John Lucas Hotel Management Services [2013] FWCFB 1198 (22 February 2013) (austlii.edu.au)

Intangible assets 

 Intangible assets are defined as identifiable non-monetary assets that cannot be seen, touched or physically measured, which are created through time and/or effort and that are identifiable as separate assets. There are two primary forms of intangibles — legal intangibles (eg trade secrets, customer lists, copyrights, patents, and trademarks), and competitive intangibles such as knowledge activities (eg know-how, collaboration activities, leverage activities, and structural activities). Legal intangibles are known under the generic term intellectual property and generate legal property rights defensible in a court of law. 

No beneficial use of assets – no transfer of business 

In a case before Fair Work Australia involving a jurisdictional point regarding the employee’s period of employment, it was determined that leaving some electrical appliances and a procedures manual did not satisfy the requirements that the arrangement entered into by the employers was not a beneficial use of assets, so no transfer of business occurred.   Zabrdac v Transclean Facilities Pty Ltd [2011] FWA 4492 (25 August 2011) (austlii.edu.au)    

Work performed 

  Under 311(1)(c) of the Fair Work Act , the transferring employee must perform the same, or substantially the same, work for the new employer as he/she performed for the old employer. It is intended that this provision not be construed in a technical manner. It recognises that, in a transfer of business situation, there may well be some minor differences between the work performed for the respective employers. However, the requirement is satisfied where, overall, the work is the same or substantially the same — even if the precise duties of the employees, or the manner in which they are performed, have changed. 

This section of the Act relates to the similarity in the actual work performed by the transferring employee. While the work of the companies, the employee’s title and precise duties may have changed, if the overall work performed for both employers is substantially the same, a transfer of business occurs.   Farrugia v Building Technology Integrators Pty Ltd [2011] FWA 1285 (14 March 2011) (austlii.edu.au)    

Instruments that may transfer

Section 312 of the Fair Work Act defines the meaning of a “transferable instrument” as either:  

  • an enterprise agreement approved by the Fair Work Commission 
  • a workplace determination 
  • a named employer award. 

The term “named employer award” means: 

  • a modern award (including a modern enterprise award) that is expressed to cover one or more named employers 
  • a modern enterprise award that is expressed to cover one or more specified classes of employers (other than a modern enterprise award that is expressed to relate to one or more enterprises [similar businesses under the same franchise]). 

 Each of the following is a transferable instrument: 

  • a modern award 
  • a notional agreement preserving a state award 
  • a named employer award (a modern award that commences from 1 January 2010 that expressly covers one or more named employers) 
  • preserved redundancy provisions (in certain circumstances, if the transfer occurred before 31 December 2009) 
  • individual flexibility arrangements 
  • guarantee of annual earnings to high-income employees, with the second employer required to comply with the remaining period of the guarantee of annual earnings transfers. 

Enterprise agreement – new employer 

 Under s313 of the Fair Work Act , an enterprise agreement that already covers the new employer would NOT cover a transferring employee who is covered by a “transferable instrument”, eg an enterprise agreement with the old employer. This is referred to in the Act as the default position. 

 In order for the company’s enterprise agreement to apply to the transferring employees, the employer would need to make an application to the Fair Work Commission as set out in s318, seeking an order that the company’s enterprise agreement should apply to transferring employees. 

In deciding whether to make the order, the Fair Work Commission must take into account the following: 

  • the views of the new employer and the employees who would be affected by the order 
  • whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment 
  • if the order relates to an enterprise agreement – the nominal expiry date 
  • whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace 
  • whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer 
  • the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer (eg the enterprise agreement) 
  • the public interest. 

It may be difficult to convince the FWC that the company’s enterprise agreement applies to the transferring employees if there is a significant reduction in their wages.   

 Industrial instruments which do not transfer 

 A modern award covering the transferring employee at the first employer does not transfer to the second employer. In many instances the same modern award will cover the same work at the second employer, but not in all cases.

Sometimes, the second employer will be covered by a different modern award or an enterprise award.  

Previous service and entitlements 

Section 22(5) of the Fair Work Act provides that if there is a transfer of business, any period of service of the employee with the first employer counts as service with the second employer; and the period between the termination of the employment with the first employer and the start of employment with the second employer does not break the employee’s continuous service with the second employer, but does not count towards the length of the employee’s continuous service with the second employer. 

 The prior service with the first employer is counted for: 

  • the amount of annual leave the transferring employee has with the second employer (less the service for any period of annual leave taken with the first employer or paid out by the first employer) 
  • the amount of personal leave (sick leave and carer’s leave) the transferring employee has with the second employer (less the service for any sick leave or carer’s leave taken with the first employer or paid out by the first employer) 
  • the amount of notice of termination the transferring employee is entitled to from the second employer (less the service for any period of notice given by the first employer or paid out in lieu by the first employer) 
  • the amount of service that the employer has with the second employer for determining eligibility for unpaid parental leave, or an employee’s right to request flexible working arrangements under the National Employment Standards 
  • the amount of service that the transferring employee has with the second employer for determining when the employee’s minimum employment period ends (for access to unfair dismissal claim rights) 
  • the amount of service the transferring employee has with the second employer for calculating redundancy pay if the employee is made redundant by the second employer (less any service for which redundancy pay was paid by the first employer). 

The recognition of service rules also applies to a “transfer of employment” scenario, where an employee takes up employment with an associated entity within three months. In a transfer of employment, it does not matter whether the employee performs the same or substantially the same work for the new employer. 

Exceptions  

Recognition of service with the first employer does not apply with respect to annual leave or redundancy pay under the National Employment Standards where the transfer is between non-associated entities if the second employer decides not to recognise the employee’s service with the first employer. 

Unless the first and second employers are associated entities, the second employer is not obliged to recognise prior service with the first employer for calculating the employee’s minimum employment period provided the second employer advises the transferring employee in writing that prior service will not be recognised before he or she commences employment. 

If the employee has already had the benefit of the entitlement the amount which was calculated on the period of service with the first employer is not counted when calculating service with the second employer. 

A transferring employee who is taking unpaid parental leave under the National Employment Standards at the time his or her employment transfers continues as if there has been no change of employment. He or she retains the right to extend parental leave, etc – as if there had been no change in employment. 

No obligation to employ 

Where there is a transfer of business under the Fair Work Act the second employer is not compelled to employ someone who would be a transferring employee if he or she was employed by the second employer. Refusing to employ someone in these circumstances does not breach the general protections in the Act. 

Fair Work Information Statement 

Any new employee must receive a Fair Work Information Statement from the employer. It must contain an explanation of the effect on an employee’s entitlements when he/she is subject to a transfer of business. 

Employment records 

The Fair Work Regulations 2009 contains provisions that specify the obligations of employers regarding the records of transferring employees. The old employer is required to transfer the employment record for each transferring employee at the time the connection between the two employers occurs, ie when the transfer of assets occurs, when the work is outsourced or insourced or, for associated entities, when the employee is transferred. If the transferring employee becomes an employee of the new employer after the transfer, the new employer must ask the old employer to provide them with the employee’s records and the old employer must give those records. These records must be kept by the new employer for seven years.

When one employer is not a national system employer 

The National Employment Standards applying to notice of termination and unpaid parental leave, and the additional consultation requirements applying to terminations of 15 or more employees, apply to State system employers as well as national system employers. 

However, there is no “transfer of employment” under the Fair Work Act when either the first or second employer is a State system employer. Industrial instruments do not transfer from the first to the second employer and prior service, except as it affects notice or parental leave, does not carry across by legislation. (The second employer may choose to recognise prior service). 

Where both employers are State system employers there may be rules in the State legislation covering the transmission of business or transfer of employment which preserve prior service or transfer industrial instruments. 

Referral of industrial relations powers 

Where an unincorporated business was bought by an incorporated business after 1 January 2010 (date of referral of industrial relations powers by State governments – except Western Australia) the previous state award will transfer with the employees.  

From 1 January 2011, the relevant modern award applied to the relevant employees. 

Amending the transfer – Fair Work Commission orders 

The second employer, or a transferring employee, may apply to the FWC for an order that a transferring award or agreement will not cover transferring employees or that an enterprise award or agreement which covers the second employer will cover the transferring employees. 

Under  s317 and 318 of the Fair Work Act, in the case of a transfer or likely transfer, the FWC may order: 

  • the transferable instrument does not cover the transferring employees or second business 
  • another enterprise agreement or named employer award which covers the second business covers the transferring employee(s). 

Applications to the FWC may be made by: 

  • the second business or likely second employer 
  • a transferring employee or someone likely to be a transferring employee of the second business 
  • a union covered by the enterprise agreement or named employer award. 

The FWC can also order that a transferable instrument does not apply to non-transferring employees undertaking transferred work, or that it does. 

In determining an application, the FWC will take account of: 

  • views of the new employer or a person likely to be the new employer 
  • employees likely to be affected 
  • the business interests of the second business 
  • the nominal expiry date of the relevant enterprise agreement 
  • the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer 

It may also alter or clarify a transferable instrument in its operation at the second employer. 

Long service leave  

Although long service leave is referred to under the National Employment Standards, the source of entitlement for most employees is the relevant State or Territory long service leave statute, which would usually specify the requirements and obligations on a new employer when transmission of business occurs. 

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Fair Work Commission Distinguishes Between Outsourcing And Labour Hire

Home News Fair Work Commission Distinguishes Between Outsourcing And Labour Hire

transfer of business labour hire

In a 7 September 2018 decision, Deputy President Asbury of the FWC distinguished between “outsourcing” and supplementary labour in the context of an alleged transfer of business.

The employee who was the subject of Asbury DP’s decision in Abbott v Acciona [2018] FWC 5609 was employed by a labour hire company and placed on a construction project which was being undertaken by a joint venture which included Acciona as one of the joint venture partners. The employee worked for the labour hire company until 29 September 2017, and then was employed by Acciona from 3 October 2017.

The employee argued that there was a transfer of business between the labour hire company and Acciona and hence he was entitled to have his period of service with the labour hire company recognised.

DP Asbury held that there was no “outsourcing” or “insourcing” involved for the purposes of s.311 of the Fair Work Act – merely the provision of supplementary labour. She stated that the ordinary definition of “outsourcing” was to “contract work outside a company rather than employ more in-house staff”. She made a distinction “between an employer engaging supplementary labour through a labour hire company and outsourcing work”.

DP Asbury held that for the purposes of s.311 of the Act, there needs to be an “arrangement” between the entity outsourcing the work and the entity which will perform the work. That is, there needs to be something more than an employee ceasing to perform particular work for one employer and commencing to perform the same or substantially the same work for another employer.

If you would like more information about labour hire please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice about transfer of business please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au .

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When businesses change owners

Change of business owners often occurs where there is a sale of business. It is also known as a transfer of business. This can affect an employee's entitlements.

On this page:

What's a transfer of business, what covers employees during a transfer of business, tools and resources, related information.

A transfer of business is when all of the following happen:

  • an employee begins working for the new employer within 3 months of ending their job with a previous employer
  • the employee's duties are the same or nearly the same as they were for the previous employer
  • there is a connection between the previous and new employers.

An employee that moves from the old employer to the new employer in a transfer of business is called a transferring employee.

What's a connection between employers?

There may be a connection between employers when one or more of the following occurs:

  • the old employer sells some or all of the businesses assets to the new employer (for example, machinery or computer systems)
  • the employers are associated entities , meaning they are related bodies corporate or one has some controlling interest in the other
  • the old employer outsources the work the employee does to the new employer, or
  • the new employer stops outsourcing work to the old employer.

When businesses change owners, a transferring employee can either:

  • if they were covered by an enterprise award, enterprise agreement or other registered agreement , remain covered by the same instrument as they were before transferring (if covered by an agreement, this will continue to apply until the agreement is terminated or is replaced) or
  • if they were covered by an award, switch to the award covering the new employer, if it covers their job and industry.

New employees

Any new employees that you engage will be covered under the applicable modern award or another enterprise agreement. If there is no modern award or enterprise agreement that covers the new staff, then the transferable instrument may also apply to the new employees.

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  • Find tools, resources and information you might need in our Small Business Showcase .

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The Fair Work Ombudsman is committed to providing you with advice that you can rely on. The information contained in this fact sheet is general in nature. If you are unsure about how it applies to your situation you can call our Infoline on 13 13 94 or speak with a union, industry association or a workplace relations professional.

Printed from fairwork.gov.au Content last updated: 2022-09-01 © Copyright Fair Work Ombudsman

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Three Lessons From a Surprisingly Resilient Job Market

The recovery from the pandemic lockdowns has prompted economists to consider whether their playbook is outdated or just missing a page.

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An illustration of a compass with an arrow like a rising stock chart instead of a needle.

By Ben Casselman

The pandemic created an economic crisis unlike any recession on record. So perhaps it shouldn’t be surprising that the aftermath, too, has played out in a way that almost no economists expected.

When unemployment soared in the first weeks of the pandemic, many feared a repeat of the long, slow rebound from the Great Recession: years of joblessness that left many workers permanently scarred. Instead, the recovery in the labor market has been, by many measures, the strongest on record.

In early 2021, some economists foresaw a surge in inflation. Others were skeptical: Similar predictions in recent years — in some cases from the same forecasters — had failed to come true. This time, however, they were right.

And when the Federal Reserve began trying to tamp down inflation, there were warnings that the job market was sure to buckle, as it had threatened to do every time policymakers began raising interest rates too rapidly in the decade before the pandemic. Instead, the central bank has raised rates to their highest level in decades, and the job market is holding steady, or perhaps even gaining steam.

The final chapter on the recovery has not been written. A “soft landing” is not a done deal . But it is clear that the economy, particularly the job market, has proved far more resilient than most people thought probable.

Interviews with dozens of economists — some of whom got the recovery partly right, many of whom got it mostly wrong — provided insights into what they have learned from the past two years, and what they make of the job market right now. They didn’t agree on all the details, but three broad themes emerged.

1. This time really was different.

Economists have learned to be wary of concluding that “ this time is different. ” No matter how different the specifics, the basic laws of economic gravity tend to hold constant: Bubbles burst; debts come due; patterns of hiring and firing evolve in ways that are broadly, if imperfectly, predictable.

But the pandemic recession really was different. It wasn’t caused by some fundamental imbalance in the economy, like the dot-com bubble in the early 2000s or the subprime mortgage boom a few years later. It was caused by a pandemic that forced many industries to shut down virtually overnight.

The response was different, too. Never had the federal government provided so much aid to so many households and businesses. Despite mass unemployment, personal incomes rose in 2020.

The result was a recovery that was fast but chaotic. When vaccines enabled people to venture out again, they had money to spend, but businesses weren’t ready to let them spend it. They had shed millions of workers, some of whom had moved on to other cities or industries, or had started businesses of their own, or who weren’t available to work because schools remained closed or the health risks still seemed too great. Companies had to navigate supply chains that remained snarled long after daily life had returned mostly to normal, and they had to adjust their business models to schedules, spending patterns and habits that had shifted during the pandemic.

In retrospect, it seems obvious that normal economic rules might not apply in such an environment. Ordinarily, for example, when job openings fall, unemployment rises — with fewer opportunities available, it is harder to find work. But coming out of the pandemic shutdowns, even after the initial hiring rush slowed, there were still more vacancies than workers to fill them. And companies were eager to hold on to the employees they had worked so hard to hire, so layoffs remained low even when demand began to cool.

Some economists did recognize that the pandemic economy was likely to follow different rules. Christopher J. Waller, a Fed governor, argued in 2022 that job openings could fall without necessarily driving up unemployment, for example. But many other economists were slow to acknowledge the ways in which standard models didn’t apply to the pandemic economy.

“It’s the danger of forecasting what’s going to happen in extreme times from linear relationships estimated in normal times,” said Laurence M. Ball, a Johns Hopkins economist. “We should have known that.”

2. The job market is returning to normal — and normal is pretty good.

The job market doesn’t look so strange anymore. In fact, it looks largely as it did just before the pandemic began. Job openings are a bit higher than in 2019; job turnover is a bit lower; the unemployment rate is almost the same.

The good news is that 2019 was a historically strong labor market, marked by gains that cut across racial and socioeconomic lines. The 2024 version is, by some measures, even stronger. The gap in unemployment between Black and white Americans is near a record low. Job opportunities have improved for people with disabilities, criminal records and low levels of formal education. Wages are rising for all income groups and, now that inflation has cooled, are outpacing price increases.

“Normal” looks a bit different five years later, of course. The pandemic drove millions of people into early retirement, and many have not returned to work. The persistence of remote and hybrid work has hurt demand for some businesses, like dry cleaners, and shifted demand for others, like weekday lunch spots, from cities to the suburbs.

But while those patterns will continue to evolve, the period of frantic rehiring and reallocation is largely over. Workers are still changing jobs, but they are no longer walking out the door on their lunch break to take a better-paying opportunity down the street. Employers still complain that it is hard to hire, but they are no longer offering signing bonuses and double-digit pay increases to get people in the door.

As a result, many economic rules that went out the window earlier in the recovery may again be relevant. Without such an excess of unfilled jobs, for example, a further decline in openings may really augur an increase in unemployment. That doesn’t mean the old models will perform perfectly, but they may again bear watching.

“You can easily imagine that we had a period where, man, a lot of weird things happened, but now we’re coming back to a world we understand,” said Guy Berger, director of economic research at the Burning Glass Institute, a labor market research organization.

3. The good times don’t have to end (necessarily).

A few years after the end of the Great Recession, many economists began warning that the United States would soon run out of workers.

Employment had surpassed its pre-recession peak. The unemployment rate was approaching 5 percent, a level many economists associated with full employment. Millions of people had abandoned the labor force during the recession, and it was unclear how many wanted jobs, or could get one if they tried. The nonpartisan Congressional Budget Office estimated in early 2015 that job growth would soon slow to a trickle, just enough to keep up with population growth.

Those projections proved wildly pessimistic. U.S. employers added more than 11 million jobs from the end of 2014 to the end of 2019, millions more than what the budget office had expected. Companies hired job seekers they had long shunned, pushing the unemployment rate to a 50-year low, and raised wages to attract people off the sidelines. They also found ways to make workers more productive, allowing businesses to keep growing without adding as many employees.

It is possible that if the pandemic hadn’t happened, the job growth of the preceding years would eventually have petered out. But there is little evidence that was an imminent prospect in 2020, and there’s no reason it has to happen in 2024.

“A strong labor market sets off a virtuous cycle, where people have jobs, they buy stuff, companies do well, they hire more people,” said Julia Pollak, chief economist for the job site ZipRecruiter. “It takes something to slow that train and interrupt that cycle.”

Some sort of interruption is possible. The Fed, nervous about inflation, could wait too long to start cutting interest rates and cause a recession after all. And recent data may have overstated the job market’s strength — economists point to various signs that cracks could be forming beneath the surface.

But pessimists have been citing similar cracks for well over a year. So far, the foundation has held.

Ben Casselman writes about economics with a particular focus on stories involving data. He has covered the economy for nearly 20 years, and his recent work has focused on how trends in labor, politics, technology and demographics have shaped the way we live and work. More about Ben Casselman

Information about the Closing Loopholes changes

Labour hire workers

On this page:

Powers of the host firm

Powers of the commission to compel documents, case examples.

A labour hire worker is someone who enters into a work contract with a labour hire agency. The labour hire agency has a commercial contract to supply labour with a host firm. The worker performs work for the host firm. The host firm pays the labour hire agency, and the labour hire agency then pays the worker. The worker has no contract with the host firm and as a result cannot make an unfair dismissal claim against the host firm. An example of this is a nurse working for a nursing agency.

This arrangement is set out in the diagram below, adapted from Stewart’s Guide to Employment Law:[1]

labour_hire_workers_.jpeg

Australian Courts have found that the interposition of a labour hiring agency between the agency’s clients and the workers the agency hires out to them does not result in an employee-employer relationship between the client and the worker. In those cases, in general, the hiring agency interviewed and selected the workers, and determined their remuneration, without reference to the client. Usually, a client requesting a worker with particular skills was provided with one, who may or may not have been ‘on the books’ of the hiring agency at the time the order was placed. The workers of such hiring agencies were usually meant to keep the agency informed of their availability to work, and in many cases were not to agree to undertake work for the client which had not been arranged or directed by the hiring agency. Equipment was either supplied by the worker themselves, or by the hiring agency, except for specialist safety equipment which the client often supplied. Dismissal of a worker was only able to be effected by the hiring agency. The client can only advise the hiring agency that the particular worker is no longer required by it. [2]

In some situations the labour hire agency and the host employer may be related entities. If this is the case, the host employer may be found to be the employer, regardless of the contract for work with the labour hire agency.

A number of cases have considered the manner in which the matters in s.387 of the Fair Work Act are considered in circumstances where an employer provides labour to a client and the client directs the employer to remove the employee from a site.[3] Labour hire arrangements in which a host employer has the right to exclude a labour hire employee from its workplace, are becoming a common part of the employment landscape in Australia.[4] 

The reality for companies in the business of supplying labour is that they frequently have little if any control in the workplaces at which their employees are placed and the rights of such companies in circumstances where a client seeks the removal of an employee are limited. However, this is not a basis upon which companies in the business of supplying labour to clients can ignore their own responsibility for treating employees fairly when dismissal is the result of removal from a particular site, and the fairness of the dismissal is considered with reference to the matters in s.387 of the Fair Work Act.[5] 

The refusal of a client to have an employee of a labour hire company returned to a particular site may form the basis of a valid reason for dismissal (based on capacity), however consideration would also need to be given to whether the employee could work at another site where labour is supplied by the employer.

Under the Fair Work Act the Commission has a the power to conduct inquiries and compel the production of documents.[6] This power can be used by the Commission to consider the terms of a contract to help determine the legal status of an applicant.[7]

Related information

Employee of respondent, damevski v giudice.

Damevski v Giudice [2003] FCAFC 252  (13 November 2003), [(2003) 133 FCR 438].

The applicant had been employed as a cleaner by Endoxos. Endoxos then restructured its operations so that the applicant and other employees would become contractors under a labour hire arrangement with another company. The applicant continued to perform the same work for Endoxos as a cleaner under its direction and control, using its equipment and in its uniform.

The applicant was held to be the employee of Endoxos.

NOT employee of respondent

Re advanced australian workplace solutions pty ltd.

Re Advanced Australian Workplace Solutions Pty Ltd, Print S0253  (AIRCFB, Giudice J, McIntyre VP, Redmond C, 25 October 1999).

The Full Bench overturned a finding that the applicant, who had entered into a contract with a labour hire company, was in fact the employee of the host employer to which the applicant had been assigned to perform work.

The Full Bench found that there was no contractual relationship between the applicant and the host employer.

Employee dismissed by respondent as a result of contract with host employer

Pettifer v modec management services pty ltd.

Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243  (O'Callaghan SDP, Binet DP, Hampton C, 22 August 2016).

The appellant in this matter was employed by MODEC Management Services, a labour hire company, to work at a BHP Billiton Petroleum Inc (BHPB) site. He was dismissed after BHPB exercised a contractual right to direct MODEC to remove the appellant from its site. At first instance the Commission held that the dismissal was not harsh, unjust or unreasonable.

The appeal was made on grounds that the Commission erred in finding the question of valid reason did not arise on the facts. The Full Bench granted permission to appeal as the appeal raised broader question regarding the obligations of a labour hire employer.

The Full Bench found that BHPB's instruction to MODEC that the appellant was not permitted to work on site represented a matter going to the employee's capacity to work. The issue required consideration under s.378(a) of the Fair Work Act to determine whether there was a valid reason for dismissal. The Full Bench held that the Commission erred in finding the circumstances of the dismissal did not give rise to a consideration of valid reason. The appeal was upheld and the matter redetermined. To be a valid reason the reason must be defensible or justifiable on an objective analysis of the facts. The Full Bench was satisfied that MODEC had a valid reason relating to the employee's capacity and only exercised the reason because it was genuinely unable to find suitable alternate employment for him. Having considered the s.387 factors the Full Bench held that the dismissal was not harsh, unjust or unreasonable and confirmed the Commission order dismissing the unfair dismissal application.

Employee dismissed by respondent when host employer removed access to site

Star v workpac pty ltd t/a workpac group.

Star v WorkPac Pty Ltd T/A WorkPac Group [2018] FWC 4991  (Asbury DP, 28 August 2018).

The applicant in this unfair dismissal application worked as a casual Machinery Operator at the Goonyella Riverside Mine for WorkPac, a labour hire company. WorkPac was directed by its client, BHP Billiton Mitsubishi Alliance (BMA), to remove the applicant from their site. When the applicant asked WorkPac why this was occurring, a WorkPac representative said that she did not know the reason, but that the ‘demobilisation’ was not related to the applicant’s performance. The representative also said that she would email a termination letter to the applicant. The applicant understood from this conversation that her employment was terminated. The applicant had no ongoing employment or income from WorkPac after that point.

The Fair Work Commission found that the applicant was dismissed when WorkPac complied with BMA’s direction to remove her from their site. The Commission considered whether WorkPac had a valid reason for the dismissal related to the applicant’s capacity or conduct. The Commission found that there was an inference that a conduct issue related to the direction to remove the applicant from the site existed, however WorkPac failed to make any enquiry of BMA to establish the reasons. On the balance of probabilities the Commission found the reason for the direction to remove the applicant from the site was related to conduct.

The Commission found there was no valid reason for the removal of the applicant from the site leading up to the dismissal, and that WorkPac failed to consider alternative assignments before terminating the applicant’s employment. The Commission found that the dismissal was unfair. The Commission held the provisional view, with some reservations, that reinstatement was an appropriate remedy. The Commission provided an opportunity for the parties to consider their positions in relation to reinstatement.

[1] A Stewart, Stewart’s Guide to Employment Law (4th ed, 2013) at p. 69.

[2] Damevski v Giudice [2003] FCAFC 252 (13 November 2003) at paras 173–174, [(2003) 133 FCR 438].

[3] Stevens v ISS Property Services Pty Ltd T/A ISS Property Services [2020] FWC 1340 (Asbury DP, 12 March 2020) at para. 12.

[4] Stevens v ISS Property Services Pty Ltd T/A ISS Property Services [2020] FWC 1340 (Asbury DP, 12 March 2020) at para. 12; citing Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243 (O'Callaghan SDP, Binet DP, Hampton C, 22 August 2016) at para. 19.

[5] Stevens v ISS Property Services Pty Ltd T/A ISS Property Services [2020] FWC 1340 (Asbury DP, 12 March 2020) at para. 12.

[6] Fair Work Act s.590(c) and (f).

[7] See for example CUB Pty Ltd T/A Carlton & United Brewers v Johnson; Chelgrave Contracting Australia Pty Ltd [2021] FWCFB 411 (Catanzariti VP, Anderson DP, Bissett C, 8 February 2021) at para. 19.

[8] The Macquarie Dictionary Online.

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Labour hire company Buildhub in liquidation

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Construction Labour hire company Buildhub has gone into liquidation. Photo / 123rf

Construction labour hire firm Buildhub has gone into liquidation.

Gareth Russel Hoole of Ecovis KGA was appointed liquidator on Friday by shareholders by special resolution, according to the Companies Register.

The company is known for hiring migrant workers and is an approved employer for the Accredited Employer Work Visa.

It comes after fellow labour hire company ELE group went into receivership five days before Christmas, resulting in the termination of 1000-plus jobs.

Buildhub is registered at an Ellerslie address in Auckland and Daniel Ramirez Ordas is the sole director, having been appointed on February 7.

Previous director, and major shareholder, Mariela Andrea Ehijo Contreras, resigned on February 9.

The company was at the centre of an Immigration NZ investigation over allegations about duping South American migrants into coming to New Zealand on fake job contracts but was cleared of wrongdoing earlier this month .

Stuff reported that staff were told on Friday and some are still waiting to be paid.

Buildhub’s website says it has placed 200-plus workers with 4800-plus hours worked weekly.

Companies Office records show it was set up in July 2019. The company is 50 per cent owned by Monsan Enterprises and Investments and 50 per cent owned by Mariela Andrea Ehijo Contreras.

transfer of business labour hire

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Politics latest: Why Speaker Sir Lindsay Hoyle appears safe for now - as minister criticises 'real culprit' for Commons chaos

The safety of MPs remains in the spotlight as the Speaker defends his actions in the Commons. Listen to a teaser episode of Electoral Dysfunction, the new podcast from Sky News as you scroll.

Friday 23 February 2024 17:19, UK

  • Starmer the 'real culprit' for Commons chaos, minister claims
  • Rob Powell:  Speaker's position seems more secure now
  • Gaza vote controversy explained - and why Speaker is facing anger from MPs
  • 71 MPs have signed no-confidence motion  |  How Speaker can be ejected
  • From bodyguards to death threats - the real impact of this week's events
  • Electoral Dysfunction podcast teaser: Could next Tory leader actually be really obvious?
  • Live reporting by  Charlotte Chelsom-Pill

One year ago, Rishi Sunak made five pledges for voters to judge him on.

The prime minister met his pledge to halve inflation by the end of 2023, leaving four pledges outstanding.

However, he is faring less well with his other pledges.

It has been confirmed the UK is now in recession, which means the PM's pledge to grow the economy is not being met.

With the general election approaching, how is Mr Sunak doing on delivering his other promises?

You can see the progress for yourself below.

The Speaker has been facing pressure this week after Wednesday's chaos in the Commons over the Gaza ceasefire votes.

A total of 71 MPs have now signed a motion of no-confidence in Sir Lindsay Hoyle.

However, it should be noted that the motion has been losing momentum since yesterday afternoon and the initial danger to the Speaker's position appears to have subsided.

It's also important to note this early day motion won't necessarily force Sir Lindsay out.

He is not bound to resign if a certain number of MPs back it - and there is unlikely to be a debate on it.

Rather, the EDM is being used as a mechanism by his critics to show the strength of feeling in parliament after what happened with the Gaza ceasefire votes.

Sir Lindsay sparked outrage among SNP and Tory MPs when he selected a Labour amendment to the SNP's motion.

Convention dictates that only the government can amend an opposition motion, but Sir Lindsay opted to choose Labour's amendment as well as the government's.

The Sky News live poll tracker - collated and updated by our Data and Forensics team - aggregates various surveys to indicate how voters feel about different political parties.

Labour is still sitting comfortably on a roughly 19-point lead, averaging at 44% in the polls, and the Tories on 25.2%.

In third are the Lib Dems on 9.7%, followed by Reform on 9.2%.

The Green Party stands at 6.3%, and the SNP on 3.2%.

See the latest update below - and you can read more about the methodology behind the tracker  here .

By Jennifer Scott , political reporter

Downing Street has condemned protesters for projecting "from the river to the sea" onto Big Ben during a pro-Palestinian rally on Wednesday night.

The demonstration took place in Parliament Square as MPs debated calls for an immediate ceasefire in Gaza, which led to chaotic scenes in the Commons.

The prime minister's official spokesperson said it was "wrong" for the controversial phrase to be used, though stopped short of saying police should have acted over it, adding: "It is rightly a decision for the independent police to make operational decisions on the ground."

Other words were also projected onto the Elizabeth Tower, including "stop bombing Gaza," "ceasefire now", and "stop war now".

But the use of "from the river to the sea, Palestine will be free" has drawn anger from some pro-Israel supporters, who argue the phrase calls for the eradication of the Israeli state.

Some pro-Palestinian supporters reject this, saying it is simply expressing the need for equality for all inhabitants of historic Palestine.

Read more here:

Conservative MP David Davis has accused the government of continuing to "shirk its obligations" after Shamima Begum lost an appeal today against the removal of her British citizenship. 

"Shamima Begum is British, and should be repatriated along with all our other nationals detained without charge or trial in North East Syria, to face British justice, where appropriate," Mr Davis said.

"Our international allies recognised this as the only sensible solution long ago - the government must finally take responsibility and abandon its failed policy."

The east London schoolgirl travelled to Syria in 2015 at the age of 15.

Her citizenship was revoked on national security grounds shortly after she was found in a refugee camp in 2019.

She has now lost an appeal against that decision (see post at 11.17am).

The ruling has been welcomed by both Downing Street and the Home Office.

While declining to comment on the details of individual cases, a No 10 spokeswoman said: "We're pleased the court has found in favour of the government.

"Beyond that, I would just say that our priority remains on maintaining the safety and security of the UK.

"We'll always take the strongest possible action to protect our national security and we never take decisions around deprivation (of citizenship) lightly."

The comments were echoed by a Home Office spokesperson, who said: "Our priority remains maintaining the safety and security of the UK, and we will robustly defend any decision made in doing so" (see post at 11.30am).

However, Mr Davis warned: "Despite today’s judgement, the government cannot continue to shirk its obligations on this issue".

Ms Begum's lawyers have vowed to "keep fighting", although the specifics of what comes next are not clear (see post at 14.35).

The King has formally stripped Paula Vennells, the former chief executive of the Post Office, of her CBE.

Ms Vennells received the honour in 2019 but was widely criticised amid the fallout from the Post Office scandal.

She had previously said she would give up the honour.

Ms Vennells was portrayed by an actor in the ITV drama, Mr Bates Vs The Post Office, which brought the scandal to the wider attention of the public earlier this year.

More than 700 sub-postmasters and mistresses had their reputations ruined by allegations of theft and false accounting, with many left bankrupt or in prison, as a result of a computer system called Horizon.

The scandal is considered the widest miscarriage of justice in British history.

By Henry Vaughan , home affairs reporter and feature writer

Shamima Begum's lawyer Daniel Furner has vowed to "keep fighting" after the 24-year-old lost the latest round of her five-year legal battle following the removal of her British citizenship in 2019. But the specifics are less clear. 

In the unanimous decision to dismiss her attempt to overturn the decision of the lower court - the Special Immigration Appeals Commission (SIAC) - three Court of Appeal judges rejected all of her five arguments.

Her lawyers are considering the full 42-page judgment, which they saw for the first time on Friday, and any arguments over its consequences - which could include a bid to appeal against the decision at the Supreme Court - have been adjourned for seven days.

Speaking after the ruling, one of Ms Begum's lawyers said it was too soon to say whether they would lodge an appeal at the UK's highest court but appealed directly to the government to follow in the footsteps of other countries which have repatriated their citizens.

"Every other country has taken their nationals back - France, Germany, Belgium, America, Canada, Australia," said Gareth Peirce.

"Every country in a comparable position has seen that there is no alternative but to take their nationals back. The UK stands now virtually alone."

But Downing Street welcomed the Court of Appeal's decision and it is impossible to see the government allowing Ms Begum - who remains in a refugee camp in northern Syria following her travel to the country aged 15 - to return to the UK without being forced by the courts.

Labour MP Jess Phillips has revealed former home secretary Dame Priti Patel checked in on her every week after the murder of Conservative MP Sir David Amess.

Ms Phillips talks about the aftermath of Sir David's murder in a teaser episode of the new Sky News podcast Electoral Dysfunction . 

Starting next week, it will bring together Jess, Conservative peer Ruth Davidson and Sky's political editor Beth Rigby  every Friday for a new episode.

Jess said: "Those of us who are the highest security risk, of which I am one of 10, they really ramped up our security on these occasions, as they always do in these moments.

"And Priti Patel [who at the time was home secretary] was really good friends with David Amess.

"I mean she was his [constituency] neighbour. And every Sunday night for four weeks, at about 9pm at night, she would ring me and ask if I was all right. 

"You don't forget that sort of thing."

Sir David was killed during a constituency surgery in Leigh-on-Sea, Essex in 2021.

The issue of MPs' safety sits firmly in the spotlight after pro-Palestinian protesters held a demonstration outside the home of Bournemouth East MP Tobias Ellwood last week.

It has also been central to the fallout over chaos in the Commons on Wednesday, which resulted in dozens of MPs signing a motion of no confidence in the Speaker (see post at 13.49).

You can listen to more from Jess, Ruth and Beth in the special teaser episode of  Electoral Dysfunction here :

They explain what the title is all about and what they'll be trying to do on every episode.

And, they get down to the nitty-gritty of examining leaders and their policies - digging deep into what Conservatives might think of their future.

Email Beth, Ruth, and Jess at  [email protected]

👉 Listen above then tap here to follow Electoral Dysfunction wherever you get your podcasts 👈

There are now 69 MPs who have signed a motion of no confidence in Speaker Sir Lindsay Hoyle (see previous post).

Here's the full list of Conservatives:

  • William Wragg
  • Gary Sambrook
  • Jill Mortimer
  • John Stevenson
  • Kieran Mullan
  • Anthony Mangnall
  • James Duddridge
  • Chris Green
  • Bob Blackman
  • Tom Randall
  • Jonathan Lord
  • Karl McCartney
  • Derek Thomas
  • Jack Brereton
  • James Grundy
  • Brendan Clarke-Smith
  • Lee Anderson
  • Graham Brady
  • Eddie Hughes
  • Geoffrey Clifton-Brown
  • Marco Longhi
  • Simon Baynes
  • Shaun Bailey
  • Matt Warman
  • Steve Double
  • Danny Kruger
  • Miriam Cates
  • Robert Goodwill
  • Jonathan Gullis
  • Kelly Tolhurst
  • Paul Howell
  • Andrew Lewer
  • Mark Eastwood

And from the SNP:

  • David Linden
  • Stewart Malcolm McDonald
  • John McNally
  • Gavin Newlands
  • Pete Wishart
  • Patricia Gibson
  • Joanna Cherry
  • Alison Thewliss
  • Anum Qaisar
  • Douglas Chapman
  • Carol Monaghan
  • Drew Hendry
  • Anne McLaughlin
  • John Nicolson
  • Kirsty Blackman
  • Ronnie Cowan
  • Dave Doogan
  • Amy Callaghan
  • Brendan O'Hara
  • Stephen Flynn
  • Mhairi Black
  • Richard Thomson
  • Kirsten Oswald
  • Allan Dorans
  • Marion Fellows

Independent:

  • Rob Roberts

There is also one withdrawn signature, from Conservative MP Philip Dunne.

A total of 69 MPs have now signed a motion of no-confidence in Sir Lindsay Hoyle.

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transfer of business labour hire

IMAGES

  1. 1. Background: Labour Hire in Australia

    transfer of business labour hire

  2. Labour Hire

    transfer of business labour hire

  3. Business Transfer Agreement

    transfer of business labour hire

  4. What is Labour Hire and How Important It Is?

    transfer of business labour hire

  5. Business Transfer Letter Template

    transfer of business labour hire

  6. PPT

    transfer of business labour hire

COMMENTS

  1. Service with labour hire company counts after a transfer of business

    The Fair Work Commission (the FWC) has decided that an employee's service with a labour hire company will count as service with his new employer following a transfer of business. 1 Managing Associate Andrew Stirling and Associate Jessica McDonald report. Jump To How does it affect you? Background The decision How does it affect you?

  2. Offering employment to labour hire workers constitutes a transfer of

    Offering employment to labour hire workers constitutes a transfer of business The recent decision of Burdziejko v ERGT Australia Pty Ltd [2015] FWC 2308 has significant consequences for employers when offering direct employment to labour hire workers. Topics: Middle market enterprises (MME), Workplace relations and safety

  3. Rules in transactions/business transfers

    The main effect of the transfer of business rules is that a transferrable instrument (ie, a collective labor agreement, such as an enterprise bargaining agreement) that covered the employee before the transfer will continue to apply after the transfer and all service is regarded as continuous and accrual of leave benefits transfer with the emplo...

  4. PDF Transfer of business and outsourcing

    Under s 311 of the FW Act, a transfer of business takes place when all of the following are satisfied: the employment with the old employer has terminated; the employee became employed by the new employer within three months of the termination; the work the employee performs for the new employer is the same or substantially the same; and

  5. Transfer of business and outsourcing

    Under s 311 of the FW Act, a transfer of business takes place when all of the following are satisfied: the employment with the old employer has terminated; the employee became employed by the...

  6. Transferring temps

    Section 22(5) of the FW Act provides that, in the event of a transfer of employment (arising from a transfer of business), the period of service with the first employer counts as service with the ...

  7. What is a transfer of employment?

    What is a transfer of employment? Periods of service as a casual employee What is a genuine redundancy? What is the Small Business Fair Dismissal Code? What makes a dismissal unfair? Making an application Objecting to an application Commission process - conciliations, hearings and conferences

  8. What are the employment implications of the transfer of a business in

    Welcome to the Global Workplace Insider, a cutting-edge blog led by the global employment and labor team of Norton Rose Fulbright, designed to deliver diverse insight on legal and business developments and trends impacting employment and labor matters in various regions across the globe. We cover the full spectrum of employment and labor areas.

  9. 3 Ways to Transition Employment Contracts on Transfer of Business

    Accordingly, a transfer of business resulting in the change of the employer's legal identity constitutes an effective termination of employment in the form of a constructive dismissal. Businesses should actively manage how the transfer of employees occurs with a mind to reducing their liability. ... Barteaux Labour and Employment Lawyers Inc ...

  10. Offering employment to labour hire workers constitutes a transfer of

    The recent decision of Burdziejko v ERGT Australia Pty Ltd [2015] FWC 2308 has significant consequences for employers when offering direct employment…

  11. Employee Transfer Agreements: Everything You Need to Know

    Under an employee transfer agreement, an employer can have its employees work for another company. The employee must give explicit or implicit content, and the original employer (let's call it Employer A) must fulfill its obligations to the employee. With employee consent, these transfers are legal. In an employee transfer, the employee is ...

  12. What are the employment implications of the transfer of a business

    This article was written by Amelia Berman , a senior associate at Norton Rose Fulbright South Africa. Section 197 of the Labour Relations Act, 1995 (the LRA) was enacted to regulate the employment consequences where the whole or a part of a business or service is transferred as a going concern. The section is essentially aimed at minimising the conflict that arises from the transfer of a ...

  13. Can a labour hire company transfer its employees?

    It is certainly possible for there to be a transfer of employment whereby an agency or labour hire employee becomes a temporary employee of the host business client. This may be done at the request of the host business client, at the insistence of the labour hire employer or as a natural incident of the working arrangement.

  14. Transfer of business

    Section 311 of the Fair Work Act provides that there is a transfer of business if each of the conditions in ss311 (1) (a)- (d) are satisfied, which are: one or more employees is terminated from the first employer the employee (s) become (s) employed by the second business within 3 months doing substantially similar work

  15. Employee entitlements on a transfer of business

    When there is a transfer of business a new employer has to recognise an employee's service with the old employer when working out most of their entitlements, including: sick and carer's leave requests for flexible working arrangements parental leave. However, there are some entitlements that the new employer might not have to recognise.

  16. Fair Work Commission Distinguishes Between Outsourcing And Labour Hire

    The employee argued that there was a transfer of business between the labour hire company and Acciona and hence he was entitled to have his period of service with the labour hire company recognised.

  17. Key Employment Law Considerations in Business Transfers

    the transfer of an entire business undertaking; the transfer of employees without a break in service tenure; and a transfer to the acquirer on 'no less favourable' terms and conditions of...

  18. What Is a Transfer of Employment?

    A transfer of employment is when a person is employed by a second employer within three months of the termination of the employee's work by a first employer. Additionally, and the first and second employers are associated entities. Associated Entity The Corporations Act 2001 defines an associated entity as:

  19. When businesses change owners

    What's a transfer of business? A transfer of business is when all of the following happen: an employee begins working for the new employer within 3 months of ending their job with a previous employer the employee's duties are the same or nearly the same as they were for the previous employer

  20. Three Lessons From a Surprisingly Resilient Job Market

    2. The job market is returning to normal — and normal is pretty good. The job market doesn't look so strange anymore. In fact, it looks largely as it did just before the pandemic began.

  21. Labour hire workers

    A labour hire worker is someone who enters into a work contract with a labour hire agency. The labour hire agency has a commercial contract to supply labour with a host firm. The worker performs work for the host firm. The host firm pays the labour hire agency, and the labour hire agency then pays the worker. The worker has no contract with the ...

  22. Recruiting labour hire in-house is not insourcing: FWC rules

    Recruiting labour hire in-house is not insourcing: FWC rules. The transfer of employment provisions in the Fair Work Act 2009 (Cth) (FW Act) provide continuity of service in certain insourcing arrangements. For example, if you decide to outsource a function in your business to a third-party contractor and your employees performing the work of ...

  23. Labour hire company Buildhub in liquidation

    It comes after fellow labour hire company ELE group went into receivership five days before Christmas, resulting in the termination of 1000-plus jobs. Advertisement Advertise with NZME.

  24. Recent developments in labour hire arrangements ...

    A labour hire arrangement widely used in Western Australia has recently had limitations exposed by a Full Federal Court inFair Work Ombudsman v Quest…

  25. Stuff

    Labour hire firm liquidation: Immigration NZ helping staff. A labour hire company that supplied workers to the horticulture industry has gone into liquidation, leaving dozens of migrant workers in ...

  26. Key Employment Law Considerations in Business Transfers

    Key Employment Law Considerations in Business Transfers The approach towards employee transfers or redundancies, structuring of pay and benefits, etc., can be complex and often be the subject matter of heavy negotiations between parties in case of transfer of business undertakings. This is further complicated by conflicting judicial precedents.

  27. Politics latest: Why Speaker Sir Lindsay Hoyle appears safe for now

    Labour is still sitting comfortably on a roughly 19-point lead, averaging at 44% in the polls, and the Tories on 25.2%. In third are the Lib Dems on 9.7%, followed by Reform on 9.2%. The Green ...