Transfer of Business Under the Fair Work Act

Abstract

The Fair Work Act 2009 (Cth) has redrafted the old ‘transmission of business’ provisions for awards and agreements as new ‘transfer of business’ provisions. The new provisions differ considerably from the immediately prior Work Choices rules, and they also mark a change from the pre-Work Choices law. The ‘business characterization’ test applied in the PP Consultants case has been overruled and a test much more like the old ‘substantial identity’ of the work test has been restored. Nevertheless, the most important practical feature of the new rules is that broad powers have been given to Fair Work Australia to hear and determine applications on particular circumstances. The exercise of these powers has the potential for a flexible application of the rules, to accommodate business needs in the future.

Keywords: transmission of business, corporate restructuring, labour law, employment law, worker entitlements

JEL Classification: K10, K30, K31