Part 8 Protection of entitlements on transfer of business

101   Definitions

(1)  In this Part:

transfer of business means the transfer, transmission, conveyance, assignment or succession, whether by agreement or by operation of law, of the whole or any part of a business, undertaking or establishment.

transferred employee means a person who becomes an employee of an employer (the new employer) as a result of the transfer of business to that employer from another employer (the former employer).

(2)  A person is to be regarded as a transferred employee even if the person’s employment with the former employer is terminated before the transfer of business, so long as:

(a)  the person is employed by the new employer after the transfer of business, and

(b)  the circumstances of that termination and employment indicate an intention to avoid the operation of this Part.

In that case, the termination of employment of such a transferred employee is to be disregarded for the purposes of this Part.

102   Continuity of service for determining entitlements

(1)  This section applies for the purpose of determining a transferred employee’s entitlements as an employee of the new employer under an industrial instrument or the industrial relations legislation.

(2)  For the purpose of determining those entitlements:

(a)  the continuity of the employee’s contract of employment is taken not to have been broken by the transfer of business, and

(b)  a period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer.

(3)  Service with the former employer includes service that because of this section or a former Act is taken to be service with that employer as a result of a previous transfer of the business.

103   Entitlements when industrial instrument or legislation contravened

(1)  This section applies only to an entitlement (the avoided entitlement) that a former employer has failed to provide to a transferred employee in contravention of an industrial instrument or the industrial relations legislation.

(2)  If the avoided entitlement relates to the payment of remuneration, this Part does not operate:

(a)  to create an entitlement to payment by the new employer, or

(b)  to relieve the former employer from liability for the payment.

(3)  If the avoided entitlement relates to anything else and the new employer is required because of this Part to provide the entitlement, the new employer is entitled to be indemnified by the former employer for the reasonable cost of providing it.

104   Prevention of double entitlement

This Part does not entitle a transferred employee to claim a benefit from more than one employer in respect of the same period of service.