NSW Redundancy - when transferred to an overseas company?

[Robyn64]

I work for an Australian subsiduary of a PNG company. I have a wholly AUS contract and reside in AUS but travel to PNG monthly. They are looking to liquidate the AUS company who I work for and then offer us a PNG contract with the same position. The net salary would be the same less superannuation entitlements and less leave provisions based on PNG workplace law. Entitlements would be carried over.

As the transfer is not from one AUS business to another AUS business, is there a requirement to pay redundancy entitlements as per Fair Work before accepting a new contract from the PNG company?

 

[Rod]

The employer should either payout your entitlements, or transfer them to the new employer.

Entitlements are not meant to simply disappear.

I'd be querying your rights if you continue working in Australia. An overseas company employing people working in Australia is still obliged to follow Australian law, including the Fair Work Act. I don't know if your employer would fit into an exempt category, but my understanding on overseas exemptions is not strong.

If every overseas employer could use their own countries laws for workers in Australia I'd expect Australian companies to set up shop overseas then claim overseas laws for workers back in Oz. We'd have Asian level wages paid everywhere!

 

[Robyn64]

The employer should either payout your entitlements, or transfer them to the new employer.

Entitlements are not meant to simply disappear.

I'd be querying your rights if you continue working in Australia. An overseas company employing people working in Australia is still obliged to follow Australian law, including the Fair Work Act. I don't know if your employer would fit into an exempt category, but my understanding on overseas exemptions is not strong.

If every overseas employer could use their own countries laws for workers in Australia I'd expect Australian companies to set up shop overseas then claim overseas laws for workers back in Oz. We'd have Asian level wages paid everywhere!

Thanks for your reply Rod, our entitlements would transfer (annual leave, sick leave and LSL) but it is the redundnacy component that is in question. In effect becasue the company is being liquidated we are being made redundant from this company where they are arguing that we are being transferred to the PNG entity.

A really good point you raised though about wholly working in Australia but following PNG labour law. Will look into this further and appreciate your comments.

 

[Rod]

it is the redundancy component that is in question.

Not really. The current employer either pays redundancy out, or transfers the entitlement to the new employer. To do otherwise is illegal in many situations and can give rise to allegations of phoenixing.

Sounds like your employer either does not know what they should be doing according to Australian laws, or they are deliberately trying to avoid their legal obligations.

Curious about whether the owners of the PNG company are PNG nationals or Australians.

Corruption in Papua New Guinea - Wikipedia

 

[Robyn64]

Yes, just trying to get out of Australian obligations which I believe is to make us redundant as the Australian companu will be out of business. Fine then to offer new employment with the PNG company I guess. The company is a publicly listed company in PNG owner by PNG Nationals. Under PNG labour laws we would receive less annual leave, sick leave, need to be paid to a PNG bank account with currency fluctuations etc.

 

[Rod]

Hmm, not good. I assume you will still be working in Australia. Which means Australian employment law applies.

 

[Robyn64]

Hmm, not good. I assume you will still be working in Australia. Which means Australian employment law applies.

Yes, still working remotely in Australia with trips up to PNG every 1 to 2 months