Russell Kennedy lawyers Anthony Massaro and Abbey Sutton presented a Workplace Relations seminar about Restructures, redundancies and transfer of business on Wednesday 30 March 2016.

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your presentation – contact
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Restructures, redundancies and
transfer of business: Getting it Right
Anthony Massaro, Principal
Abbey Sutton, Associate
30 March 2016
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2. > Managing redundancies
> Minimising the risks
> Redundancy payments
> Transfer of business
> What are the rules?
> What do you need to consider?
Implementing workplace change
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3. Managing redundancies

4. > When an employer no longer requires
the job done by an employee to be
done by anyone, due to changes to
operational requirements
What is redundancy?
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5. > Introduction of new technology
> Organisational restructure
> Downsizing/closure/liquidation
> Transmission or transfer of business
> Outsourcing
> Relocation
Causes of redundancy
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6. > Unfair dismissal
> General protections or discrimination
> Failure to comply with award or
enterprise agreement
> Disputes and grievances
> Injunctions
What are the risks?
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7. > Consultation
> Why consult?
> What does it involve?
> How much is necessary?
Minimising the risks
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8. > Redeployment
> Are there any vacancies?
> What is the nature of the available position?
> What qualifications are required to perform the
job?
> What are the employee’s skills, qualifications and
experience?
> Where is the job located?
Minimising the risks (cont.)
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9. > Notice of termination
> Notify Centrelink
> Voluntary redundancies
Other procedural
considerations
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10. > How much redundancy pay?
> Small business
> Application to vary
> Transfer of business
Redundancy payouts
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11. > Is the employee is covered by an enterprise
agreement or modern award?
> What are your consultation and redeployment
obligations?
> Communicate the redundancy at the right time.
> If communication might be delayed, or there will be
mass redundancies, seek legal advice.
> Ensure consultation and the consideration of
redeployment options is genuine.
> Establish a fair set of selection criteria if applicable.
Tips
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12. Transfer of business

13. > There is a transfer of business for an
employee if:
> They finish employment with one
employer, then start with another within
3 months
> They perform substantially the same
work
> There is a “connection” between the two
employers
What is a transfer of business?
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14. Several categories of connection
> Arrangement for transfer of assets used
in connection with work
> Outsourcing
> Insourcing
> Associated entities
What is a connection?
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15. It does not matter how the termination
comes about, or when the business
actually transfers
> Resignation
> Dismissal for conduct/performance
> End of fixed term role
> Casuals
Within 3 months of termination
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16. > Enterprise agreement applies to
transferring employees
> (and some non-transferring employees)
> Continuity of service
> Transfer of service based entitlements
> Annual leave
Effects of a transfer (1)
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17. > Exception from redundancy payments
> Employment contracts do not transfer
> Employment records transfer
Effects of a transfer (2)
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18. The Commission may make orders:
> that agreement does not transfer
> that agreement does not apply to non-
transferring employees
> to vary a transferring agreement
> remove terms which no longer work
> improve alignment with new employer
FWC involvement
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19. > Aim for transfer of all employees
> with continuity of service
> and offers on no less favourable terms
> If not, compensation for redundancies
> Get offers made as soon as possible
> Limit scope of adjustments for
transferring entitlements
> Retention bonus for key staff
Tips for transferors
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20. > Know what you are getting into
> Due diligence
> Get an adjustment for transferring
entitlements
> Aim for flexibility in which employees
transfer
> Consider an application to FWC
> Avoid unlawful discrimination
Tips for transferees
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21. > Initial consultation meeting
> Get the new employer to attend
> Follow up letter
> Communicate with new employer
> Further meetings and correspondence
to discuss process and entitlements
> Offers of employment to come before
notice of termination is given
Example process
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22. > When implementing workplace change
consultation is key
> The transfer of business rules can
sneak up on you, with lasting
consequences
Key messages
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23. Contact details
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Anthony Massaro
Principal
Ph: (03) 9609 1501
E: amassaro@rk.com.au
Abbey Sutton
Associate
Ph: (03) 8640 2312
E: asutton@rk.com.au
For more information about the services offered by
Russell Kennedy, please visit us at www.rk.com.au