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WA Transfer Of Employment - Entitlements?

Discussion in 'Employment Law Forum' started by Stephen 370H55A, 19 September 2014.

  1. Stephen 370H55A

    Stephen 370H55A Active Member

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    Hi Y'all, thanks for being here, I've been through Fair Work Commission and Fair Work Ombudsman looking for a contact. I'd try the community law centre, but they are always busy...
    Ok, so I was working, as a Chef in a little country Hotel in the Pilbara. I know the owner and approached him for employment, as I'd worked there before. The only contract we have is my proposal which I submitted, outlining my general terms of employment. Full time, salaried worker, $86K + super + accommodation and travel (4 on 1 week off roster). I've been there just under 5 months and he sells the place...

    I never had a chance to ask about my entitlements, or transfer of employment to the new owner.
    Owner, (let's call him Skippy) leaves town on the day of sale, and no further communication.
    I stayed on, hoping to stay with new owners, as they had exciting development plans.
    I must add, there was no agreement to continue employment for the new owners, I was doing it out of goodwill. I finally had my say with new owners, the offer they made me was far less than what I'd been on, and was only for a limited time; they had their own Chef. They had no agreement with Skippy regarding my reimbursement for travel expenses, and would not agree to fly me home.
    I charged them under my ABN, as I was a contractor, not an employee and had no intention of becoming so. My issue is not with them, this is just background...

    So my mate Skippy has left me in the Pilbara and I've had to pay my own way home. I asked him about my final reimbursement, and was told to take it up with the new owners. I received my final pay a few days later, and have been paid to the day our employment contract terminated. But I have not been paid any notice, nor have I received my approx 60 hours holiday pay.

    What can I do? He's not answering his emails or his phone. I have emailed him and advised he owes me, my leave, some notice, and reimbursements for travel. I'm thinking about taking him personally to small claims, no doubt the company will be wound up shortly. Company is also pty ltd.
    Which court do I need to be looking at? And exactly what is my entitlement to notice, given no mention was ever made of it? I had 2 weeks left of my swing.
    Thanks.
     
  2. Rod

    Rod Well-Known Member

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    The Fair Work Ombudsman is your first step. Lodge a claim with them.

    Not sure what you mean by this comment.
     
  3. Stephen 370H55A

    Stephen 370H55A Active Member

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    I meant I trawled through FW ombudsman website looking for contact details... I realise they don't give advice but was looking for jurisdiction..
    I received a reply from skip the previous owner. Some debate as to my circumstances when I left... He says he handed me over to the new owner. I say I was never asked and did not work for them. I did not accept the new owners employment package and elected to invoice them as a contractor, and subsequently withdrew my labour...
    My contract with him ended on sale date, and he's obliged to pay me my entitlements.
    It would be nice to get a few weeks notice, and I'm adamant I want 60 hours annual leave I have accrued.
    Get this, he told me FIFO workers are not entitled to annual leave!
    Der, I was permanent full time, and annual leave is accruing as per my timesheets.
     
  4. Amanda E

    Amanda E Well-Known Member

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    Hi Stephen,
    Call the Fair Work Ombudsman on Monday - This is the link to their 'Call Us' page.
     
  5. Rod

    Rod Well-Known Member

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    Yes, the Fair Work Ombudsman is who you need to call. And yes, they will give advice as to your entitlements. Lodge a claim with them.
     
  6. Tim W

    Tim W Lawyer

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    This suggests to me that you may not be an employee.
    On that basis, it is not a given that any of the employee-related fair work stuff applies to you.
    Might be different if you are a "sham contractor", but without more information, we can't tell.

    Given that you are may not be an employee, I am not sure that you are entitled to any.

    Don't be so sure.
    If you were a contractor, billing on Tax Invoices under an ABN, and NOT receiving salary/wages as such,
    then you are not necessarily in the realm of employment law, you are more likely looking at a breach of contract action.

    Sounds like a matter for the civil jurisdiction of the Magistrates Court of Western Australia
    http://www.magistratescourt.wa.gov.au/C/civil_matters.aspx?uid=1226-6994-1097-9582

    You'd also better get some tax advice...
     
  7. Stephen 370H55A

    Stephen 370H55A Active Member

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    My apologies if I have not made myself clear. I worked full time permanent until the business sold. Then worked 4 days for the new owner as a matter of goodwill before I rejected their offer of employment. I invoiced them for this time.
    My queries relate to the ending of the employment contract with my then employer.
    Have read up a bit on redundancy, not sure if this applies? I had no formal arrangements to continue employment for a different company on different terms and conditions.
    I'm looking for my entitlements only. How much notice does an employer need to give in the absence of any formal contract?
    That, and an agreed reimbursement for my flight home, and my accrued annual leave.
    Former employer states fifo workers not entitled to annual leave, although it accrues and is listed on my wage slips...
     
  8. Tim W

    Tim W Lawyer

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    You may find these helpful
    http://www.fairwork.gov.au/Employee-entitlements/when-businesses-change-owners
    and
    http://www.fairwork.gov.au/about-us...-and-obligations/when-businesses-change-hands
     
  9. Stephen 370H55A

    Stephen 370H55A Active Member

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    Thanks for that. As I see it there was no transfer of employment. No one ever asked me if I wanted to stay with new employer, in fact I told my employer I probably wouldn't.
    He printed a memo that said business is sold, all employees to be employed by new owners.
    Can he simply renege on his obligation to pay out my entitlements; (no arrangement with new company {I was only full time employee, all else were casual})?
    I'm a bit unsure over the redundancy scenario, does employer still have obligation for entitlements if he believes he is passing me onto a new employer? with or without my consent?
    I think that is is angle?
    I really appreciate the help, having a difficult enough time as it is, having to find new employment as well as deal with all this...
     
  10. Tim W

    Tim W Lawyer

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    If it was your idea or choice to go, then redundancy is not in play.
    As a contractor, not an employee, redundancy would not be in play.
     

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