Industrial Arbitration (Employment Protection) Amendment Act 1986 (NSW)

INDUSTRIAL ARBEIRATION (EMPLOYMENT

PROTECTION) AMENDMENT ACT 1986 No. 185

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title

2. ( ommenccment

3. Amendment of Act No. 2. 1940

4. Repeal of Act No. 122. 1982

5. Transitional

SCHEDULE I—AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940

INDUSTRIAL ARBITRATION ( E M P L O Y M E N T

PROTECTION) A M E N D M E N T ACT 1986 No. 185

NEW SOUTH WALES

Act No. 185, 1986

An Act to amend the Industrial Arbitration Act 1940 to make provision for the protection of employees whose employment is terminated or transferred and for the repeal of the Employment Protection Act 1982. [Assented to 18

December 1986]

Industrial Arbitration (Employment Protection) Amendment 1986

BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:

Short title

1. This Act ma> be cited as the "Industrial Arbitration (Employment Protection) Amendment Act 1986".

Commencement

2. (1) Sections 1 and 2 shall commence on the date of assent to this

Act.

(2) Except as provided by subsection (1). this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.

Amendment of Act No. 2, 1940

3. The Industrial Arbitration Act 1940 is amended in the manner set forth in Schedule 1.

Repeal of Act No. 122, 1982

4. On a day to be appointed by the Governor and notified by proclamation published in the Gazette, the Employment Protection Act 1982 is repealed.

Transitional

(1) After the commencement of this Act, the Employment Protection Act 1982 does not apply to a termination or proposed termination of	employment of an employee which occurs when provisions under section
9IT of the Industrial Arbitration Act 1940 are in force in an award or
industrial agreement applicable to the employee.
(2) After the repeal of the Employment Protection Act 1982, that Act, as in force immediately before its repeal, continues to apply to a termination or proposed termination of employment of an employee which occurs before that repeal, unless that Act would not apply as a result of subsection (1).

5.

3   Act No. 185

Industrial Arbitration (Employment Protection) Amendment IVS6

SCHEDULE 1

(Sec. 3)

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940

(1) Section 2 (Division into Parts)—

Omit the section.

(2) Part V I I I B —

After Part YIIIA. insert:

PART VIIIB

EMPLOYMENT PROTECTION

DIVISION 1—Insertion oj provisions

in awards or agreements

Interpretation

91s. In this Division—

"appropriate tribunal", in relation to an application under this

Division, means—

(a) the commission; or

(b) a conciliation committee or an apprenticeship conciliation committee that has power to make an award binding on employees to whom the application relates.

Provisions in awards and agreements

91T. (1) On application, the appropriate tribunal shall insert

employment protection provisions in an award or industrial
agreement.

(2) Employment protection provisions are provisions relating to the obligations, duties, responsibilities and rights of an employer and an employee on the termination or proposed termination of the employment of the employee.

(3) The provisions may be inserted in the award or industrial

agreement by way of variation or otherwise.

Industrial Arbitration (Employment Protection) Amendment 1986

SCHEDULE 1— continued

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940—

continued

(4) This section does not affect any power of an appropriate tribunal to refer or remit a matter or question to another appropriate tribunal for opinion, direction or determination.

(5) This section applies to an award or industrial agreement

whether made before or after the commencement of this section.

Matters to be considered

91u. (1) In exercising its functions under this Division, the appropriate tribunal—

(a) shall have regard to those established principles which it considers to be relevant; and

(b) may have regard to such other matters as it thinks fit.

(2) Established principles are principles established by, or disclosed in the orders of, the commission under the Employment Protection Act 1982.

(3) An appropriate tribunal may establish principles for the exercise of functions under this Division.

DIVISION 2—Protection of accrued entitlements

Interpretation

91 v. (1) In this Division—

"transfer of a 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 a business to that employer from another employer ("the former employer").

5   Act No. 185

Industrial Arbitration (Employment Protection) Amendment IW6

SCHEDULE I—continued

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940—

continued

(2) A person shall 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 Division.

(3) For the purposes of the operation of this Division, the termination of employment of such a transferred employee shall be deemed not to have occurred.

Application of Division

91 w. This Division applies to a transferred employee only

where the transfer of business occurs on or after the
commencement of this Division.

Continuity of service for determining entitlements

91x. (1) This section applies for the purpose of determining

a transferred employee's entitlements under an award or industrial

agreement as an employee of the new employer.

(2) For the purpose of determining those entitlements—

(a)	the continuity of the employee's contract of employment shall be deemed 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 Division) shall be deemed to be a period of service with the new emplover.

(3) Service with the former employer includes service which is deemed by this section to be service with that employer as a result of a previous transfer of the business.

Industrial Arbitration (Employment Protection) Amendment 1986

SCHEDULE 1— continued

AMENDMENTS TO THE INDUSTRIAL ARBITRATION ACT 1940—

continued

Entitlements where award or agreement breached

91v. (1) This section applies only to an entitlement ("the avoided enliilcment") that a former employer has, in breach of an award or industrial agreement, failed to provide to a transferred employee.

(2) If the avoided entitlement is to the payment of money for work done, this Division 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 is to anything else and the new employer is required because of this Division to provide the entitlement, the new employer is entitled to be indemnified by the former employer for the reasonable cost of providing it.

Prevention of double entitlement

91z. This Division does not entitle a transferred employee to

claim a benefit from more than one employer in respect of the

same period of service.