QLD Redundancy and Transfer Under Employment Law?

[Grant.I]

Hey guys/girls,

I work for a coal mining company that is currently cutting almost all of its workforce to go into a care and maintenance style setup. I was told I would be made redundant as I was no longer needed in their plans.

Because of this, I started looking for other work and have managed to get a few interviews. One of the interviews is with the same parent company but in a different industry. The GM of my coal company found out about the interview and has held off of giving me redundancy (was due to be made redundant by the 24/02/16) to see if he can get me transferred to the other arm of the company.

My current position is as a supervisor and the job I am going for is as a maintenance electrician on about 40k a year less. I was under the impression that, under Employment Law, a transfer under these conditions must be to a similar job? Am I correct in assuming this?

 

[Sophea]

Hi Grant.I, I assume you would prefer to take the redundancy package and then start "new" employment with the parent company, as opposed to transferring over? If you were transferred over you could negotiate a transfer of your accumulated benefits for the purposes of long service leave etc.

And yes, the NES provides that an employee is not entitled to redundancy pay if they reject an offer of employment made by another employer that is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than the terms and conditions of employment with the first employer immediately before the termination, and recognises the employee’s service with the first employer; and had the employee accepted the offer, his/her employment would have been transferred.

What constitutes “acceptable alternative employment” must be determined having regard to pay levels, location and travelling time, hours of work, seniority, fringe benefits, whether the work is of a like nature and job security. Prior cases have ruled against employers trying to get out of paying redundancy where they have attempted to transfer employees to positions with a lesser wage and involving a significant career change and different work to that for which the employee was trained.

I believe if the new position paid $40K less per year then you would have grounds to argue that it was not substantially similar terms.

 

[Serge Gorval]

HI Grant

I am a workplace lawyer.

"Transfers of employment" are specifically considered by the Fair Work Act. briefly, for there to be a transfer the work you would be required to perform would have to be the same or substantially similar with the parent company.

If there is no transfer (and from your short summary, I would argue that there isn't) you would be entitled to the full redundancy package.

Where are you with it all at the moment?