Transfer of Business and Employment
Facts on Transitioning from DSC to a New Service Provider
What is ‘transfer of business’?
When an Australian business changes owners, the Fair Work Act 2009 requires that the conditions of the staff employed in the business don’t change. That means that the Award, Agreement and some other ‘transferable instruments’ become binding on the new employer.
Are the DSC privatisations a transfer of business?
If an employee (the ‘transferring employee’) has been terminated, either through redundancy or resignation, and within three months that employee takes a job with the new owner doing the same type of work in the same location, then a transfer of business takes place.
If the new owner has use of some or all of the old employer’s assets or the work has been outsourced to the new owner, then the transfer of business provisions applies.
If no DSC employees are employed by the new owner within the first 3 months, then no transfer of business has taken place.
What does transfer of business mean for me?
When a transfer of business takes place, a new employer must meet some of the obligations of the old employer. These are called transferable instruments. These include: your Agreement, any workplace determinations, your Award, any redundancy provisions, any flexibility arrangements you might have and a guarantee of actual earnings.
What if I take a redundancy from DSC?
Taking a redundancy from DSC does not stop you from gaining work in the private sector, however if you are then employed within 3 months by the new provider to do the same or similar work in the same location you were at with DSC, the transfer of business rules still apply. This means that the new provider must continue to meet the pay and conditions in your DSC Social Trainers Agreement/Award.
If you take a redundancy from DSC, the only way a transfer of business applies to you is if you were working in a house that was handing over to a private provider. You would not then be able to work for that provider in that house doing similar work to Social Training except if the private provider met your current conditions of employment. This exclusion applies for 3 months.
What if I resign from DSC?
If you resign from DSC, a transfer of business applies to you if you were working in a house that was handing over to a private provider. If you are then employed within 3 months by the new provider to do the same or similar work in the same location you were at with the DSC, the transfer of business rules still apply. This means that the new provider must continue to meet the pay and conditions in your DSC Social Trainers Agreement/Award.
How long does this affect me for?
If transfer of business applies to you, then the new employer has to meet the obligations of the old employer while you continue to perform the transferring work, or until a new workplace instrument like an Agreement commences. For DSC staff, the Agreement we have with the Government expires in mid-2017.
I’ve heard that private providers aren’t employing DSC staff, why is that?
That’s a great question! Private providers can employ you straight away, so long as they would have to meet the conditions of your current Agreement and Award. If they are choosing not to employ DSC staff it is likely because they do not wish to meet the requirements of the rules around transfer of business.