WA Change of Ownership - What are My Employee Rights?

[Kalulu]

Hi
My place of employ has been sold and now has a new owner as of 1/7/14. The staff members were not notified that there would be change of ownership. The staff were advised 1 week prior. We were advised by new ownership that nothing would change except that we all had to serve a 3 month probation period again once we were given our new employment contracts. It is now 23rd July and we still have not received anything. I feel like I am in limbo. What are my employee rights? I am concerned that I will loose my job.

 

[Sarah J]

Hi Kalulu,

Are you currently on the probation period? Are you currently getting paid normal wages during the period after change of ownership?

In regards to what your rights are, change of employer ownership may concern a "transfer of business". For this to happen, your employment under the previous employer needs to have ceased, and you are currently employed under the new employer, in employment of the same nature. If this is the case, the Fair Work Act 2009 (Cth) would apply. In particular, Part 2.8 for Transfer of Business.

First, have a look at your employment agreement with your former employee. Work out whether your employment with them has actually terminated. Second, does the agreement still apply for some time notwithstanding change of ownership? If so, this term may be incorporated into the contract with the new employer. Otherwise, is there a provisional period during which the former contract and its terms and conditions/entitlements remain in force until a new contract is drafted up?

I would suggest reaching out to your new employer and asking what your employment status is. Perhaps there was a delay in drafting the new employment contract due to various business decisions/uncertainties. In part, your employment status and entitlements depend upon what information you were told/given prior to the change of ownership. If your new employer informed you that "nothing would change until a new employment contract is drafted up and signed" then this suggests that they have agreed to keeping your previous employment contract on foot during this provisional period. In this case, you would still be employed under the conditions of your previous employment contract. This means, you have essentially entered into a verbal agreement with the new employer, whereby all the previous conditions and entitlements apply, until a new contract is drafted up.

If you have further questions, you can contact the Fair Work Ombudsman. They will be able to give you further information about relevant legislation(s) and positions. You can also check out this fact sheet by the FWO: when businesses change hands.

 

[Kalulu]

Hi Sarah J

Thanks for your response.

My position with the previous owner was terminated and I was paid out a termination package. Yes I am currently receiving normal wages.

I am of the understanding that ownership of my place of employ has gone through/taken place. To date staff have not received new employment contracts so I am therefore confused as to when my probation period should/or will start from. When I queried on Wednesday 23/7 I was advised that our new employment contracts will be coming soon! The new owner seems to be vague and does not seem to be able to answer a direct question/queries. Is there a cut off period of time as to when the new owner should give us our new contracts?

 

[Sarah J]

Hi Kalulu,

There does not appear to be any time frame for when employers need to provide employees with an employment contract (known as a "registered agreement" because the contract needs to be registered with the Fair Work Commission).

What happens is, any previously registered agreement(s) continues, as if the transfer had not taken place, until the registered agreement terminates or a new registered agreement is available to replace the old. During this time, notwithstanding no operating registered agreement, minimum employment conditions under the National Employment Standards remain in place.

The legislation governing these National Employment Standards is the Fair Work Act 2009 (Cth): Section 61 and relevant divisions.

You can do a search on the Fair Work Commission website to see if any registered agreements are currently operating under your employer's business name: find an agreement.

From what you have advised, it appears that you are currently not under a probationary period. The probationary period only begins once a new registered agreement is made available. In the meantime, you are working under the same conditions/benefits/rights/obligations as listed in your previous employment contract.

If you are still unsure and would like to enquire further, I would recommend contacting the Fair Work Ombudsman: http://www.fairwork.gov.au/contact-us