Transmission of business - new probation

Cases

Transmission of business - new probation

Senior Deputy President Richards in the AIRC found that a worker's employment commenced afresh with the transmission of business, even though the new employer agreed to maintain the previous conditions.

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Senior Deputy President Richards in the AIRC found that a worker's employment commenced afresh with the transmission of business, even though the new employer agreed to maintain the previous conditions.

A consequence was that the probationary period restarted when the worker was transferred in a transmission of business, unless specifically agreed otherwise. In this case the employee was excluded from the unfair dismissal jurisdiction as a result.

The security guard had disputed evidence from the company that it informed him of the probationary period before his employment was transferred.

Consideration

The Senior Deputy President noted:

'The Act focuses attention on the period of the employment with "the employer". There is no requirement that the qualifying period be determined in advance, as a six month qualifying period will apply in the absence of a prior written agreement between the parties, which appears to be the case in the current situation.

'Nor did the terms and conditions on offer with the new employer set aside the role of any qualifying period. The Act provides an opportunity (at s.647(b) of the Act) for such arrangements to be struck, and such arrangements might be struck in transmission of business contexts in which there is an effort on the part of the transmitter to find adequate alternative employment. But they were not so struck in this case, it would appear ... '

Redundancy

On the issue of redundancy, the Commission stated:

'It is a matter for the Applicant to take further advice in relation to his former employer in the context of whether or not a redundancy situation arose in the circumstances, whether or not a remedy is available and in what jurisdiction, and whether he or an organisation of employees with an interest in the maintenance of the relevant industrial instrument may make application in this regard.'

William Rogers v Reflections Group Pty Ltd [2007] AIRC2 PR975688 (2 January 2007)

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Termination of employment, notice & WorkChoices

  

 

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