Western Australian Numbered Acts Western Australian Numbered Acts At the end of
Part II insert:
Division 3 — Transfer of business
In this
Division —
connection between the old employer and the new
employer has the meaning given in section 7G;
new employer has the meaning given in
section 7E;
old employer has the meaning given in
section 7E;
transfer of business has the meaning given in
section 7E;
transferring employee has the meaning given in
section 7F;
transferring work has the meaning given in
section 7E.
7E. Transfer of business, old employer, new
employer, transferring work
There is a transfer of
business from an employer (the old employer ) to another employer (the new
employer ) if the following requirements are satisfied —
(a) the
employment of an employee of the old employer has terminated;
(b)
within 3 months after the termination, the employee becomes employed by
the new employer;
(c) the
work (the transferring work ) the employee performs for the new employer is
the same, or substantially the same, as the work the employee performed for
the old employer;
(d)
there is a connection between the old employer and the new employer.
An employee in
relation to whom the requirements in section 7E(a), (b) and (c) are
satisfied is a transferring employee .
7G. Connection between old employer and new
employer
(1) There is a
connection between the old employer and the new employer if, in accordance
with an arrangement between them, the new employer owns or has the beneficial
use of some or all of the assets (whether tangible or intangible)
that —
(a) the
old employer owned or had the beneficial use of; and
(b)
relate to, or are used in connection with, the transferring work.
(2) There is a
connection between the old employer and the new employer if, because the old
employer has outsourced the transferring work to the new employer, the
transferring work is performed by 1 or more transferring employees as
employees of the new employer.
(3) There is a
connection between the old employer and the new employer if —
(a)
because the new employer had outsourced the transferring work to the old
employer, the transferring work had been performed by 1 or more transferring
employees, as employees of the old employer; and
(b)
because the new employer has ceased to outsource the work to the old employer,
the transferring work is performed by those transferring employees, as
employees of the new employer.
(4) There is a
connection between the old employer and the new employer if the new employer
is a related body corporate of the old employer when the transferring employee
becomes employed by the new employer.
7H. Status of transferring employees on transfer
of business
For the purposes of
this Act, on a transfer of business —
(a) a
transferring employee’s employment before and after the transfer is
taken to be a single period of continuous employment; and
(b) the
new employer is taken to have been the transferring employee’s sole
employer for the entire period.
7I. Transfer of employment records
(1) In this
section —
employment records means employment records
required to be kept by an employer under section 26(1).
(2) On the transfer of
a business, the old employer must transfer copies of all transferring
employees’ employment records to the new employer.
(3) A contravention of
subsection (2) is not an offence but that subsection is a civil penalty
provision for the purposes of the IR Act section 83E.
(4) In proceedings
under the IR Act section 83E for a contravention of subsection (2),
an industrial magistrate’s court may, as an alternative, determine that
a contravention of section 26(1) or (2) has occurred.