Transfer of business: Notice under section 130 by NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Eraring Energy re entitlements  NSWIRComm 23 (2)
The Industrial Relations Commission of New South Wales has found that two employees, each with more than 2,000 hours personal leave, did not have their employment transferred to another entity, therefore meaning both employees lost their entitlements.
Mr Mark Gill and Mr Geoffrey Brands were long serving employees of NSW’s electricity industry, having commenced employment in 1979 and 1987 respectively.
Following the privatisation and restructuring of their employer, Pacific Power Residual Business Management Corporation (RBMC), the employees opted to accept employment with new entity, Eraring Energy. Had they not accepted this offer of employment, both employees would have been made redundant.
As a result of this, Mr Gill lost 2,292 hours of accrued sick leave, whilst Mr Brands lost 2,253 hours of sick leave.
The New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union, on behalf of Mr Gill and Mr Brands, lodged a dispute with the Industrial Relations Commission of NSW claiming that the employee’s employment had been transferred to Eraring Energy as a result of a transfer of business and as such, all of the their entitlements, including accrued personal leave should have transferred to the new entity.
The Commission found that there was no arrangement or agreement between RBMC and Eraring Energy relating to the transfer of Mr Gill and Mr Brands’ employment and said:
“an employer cannot transfer employment unilaterally.”
RBMC was not a party to the offers of employment to Mr Gills and Mr Brands by Eraring Energy. The result was that the employees’ acceptance of the offer of employment ended their employment by consent with RBMC. The employees were therefore in a better position than if they had rejected the offer, which would have resulted in their redundancy.
The employees were not entitled to have their accrued personal leave transferred from RBMC to Eraring Energy.
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