There are a few possibilities. One is that your organisation is trying to do what Patrick Stevedores did and outsource all employment to a shell company thus avoiding (they hope) lots of obligations. They would fail at this under case law relating to transmission of business and the requirement of previous employers to indemnify new employers for all outstanding leave, wages. Under these transmission of business rulings you are entitled to continued accumulation of leave, sick leave, super. The Federal Court made a few decisions at the end of last year strongly confirming employees rights in this area.. Employers can face large back payments for trying to outsource operations on the assumption that it is cheaper.
The St George Bank case impacted on banks who close retail branches and offer services via pharmacies and newsagents. The Court rules that awards and enterprise agreements carry over to the new workplace offering the services. The court said that the sole test for the transmission of business argument was that there is a "substantial identity" between the work or the service done by the new employer and that performed by the old employer.
In the North-West Health Services case the Federal Court also found there was a transmission of business and there was "substantial identity" despite some "managerial changes".
Another ruling having a big impact on the trend to outsourcing is the case involving the Geraldton Port Authority (GPA) and the MUA where the Federal Court found that the authority discriminated against union members. The GPA was forced to reverse its outsourcing decision. This decision may be more far reaching than the earlier ones in that the employer was made to reintroduce a whole employment system rather than just ensuring that the same pay and conditions apply under a new employer.
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