The law refers to any proposal to sell, transfer or contract out work as 'restructuring' and has developed some specific requirements.
These rules provide for:
- protection where work is sold, transferred or contracted out
- additional protection for a specified group of workers such as security officers, cleaners, caterers, and some laundry and caretaking workers.
Protection when work is sold, transferred or contracted out
Every employment agreement must contain an ‘employee protection provision’ clause to protect the employment of an affected employee in the event of a ‘restructuring’. A business can’t be restructured (i.e. sold, contracted or transferred out) unless the relevant employment agreements contain ‘employee protection provisions’. These provisions are intended to support a ‘fair’ process.
The Employment Agreement Builder has a sample clause for your use.
The effect of these clauses is limited to the specific restructuring situation where an employer sells, transfers or contracts out part or all of its business. It sets out the process for an employer to use in these situations. It is important to follow this process and also to understand if your employees have special protections. It does not apply to other types of change which are sometimes referred to as restructuring, such as when the employer removes (disestablishes/makes redundant) a position.
These clauses don’t apply in instances of the sale or transfer of shares in a company or when the employer is bankrupt, in receivership or in liquidation.
Extra rules for specified workers
There are extra rules for ‘restructuring’ situations that protect certain groups of employees. These groups include those who do cleaning, catering, laundry, caretaking or provide security services.
These workers are considered to be at greater risk of losing their job due to a lack of bargaining power and working in sectors that are often sold, transferred or contracted out. The extra requirements set out a process to follow in situations where an employee's work will be taken over by a different employer. The rules give these workers the right to transfer over to the new employer on their existing terms and conditions of employment.
Protection in special circumstances for specified groups of employees
Specific groups of employees are protected in certain restructuring situations. The following information sets out which groups of employees and situations are included.
Groups of employees protected
Specific groups of employees protected during restructuring are those who work in various types of employment.
These groups are:
- cleaning services and food catering services in any place of work
- laundry services for the education, health or age-related residential care sector
- orderly services for the health or age-related residential care sector
- caretaking services for the education sector
- services in the security sector, including any one or more of the following:
- guarding real or personal property (belonging to another person)
- monitoring premises in real time via CCTV (on site)
- controlling crowds at events
- escorting prisoners or performing courtroom custodial duty
- undertaking mobile patrols, and
- collecting cash from premises (e.g. banks, retail stores).
The detailed list of which employees receive these additional protections, including some exceptions to the above list, is contained in Schedule 1A of the Employment Relations Act:
The specified groups of employees can be amended through an application process.
Types of restructuring covered
The restructuring situations involving the protection of specific groups of employees are where:
- an employer sells or transfers the business (or part of it) to another person
- an employer contracts another business to perform work that was being performed in-house
- an employer is a contractor and they lose a contract to perform services and the contract is granted to another business, or
- the business for whom the contractor is performing the work decides to undertake the work in-house.
Restructuring for specified workers
|Employees have the right to transfer to the new employer if:||Employers must:|
|they will no longer be required to do all or part of their work for their existing employer because of the restructuring||notify all the employees whose work will be affected as soon as practicable, and at least 20 working days before the restructure takes effect.|
|the new employer will perform the same type of work, or work that is substantially similar.||give all employees relevant information about the restructuring as soon as practicable, but no later than 15 working days before the restructure takes effect, so they can make an informed decision about transferring to the new employer.|
The employees will be able to choose whether to transfer to the new employer on their existing terms and conditions. If they choose to do this, they will become employees of the new employer as if nothing had changed.
Employees must give their election notice to their current employer as soon as practicable, but no later than 10 working days from the time the employee is provided with the information from the employer (unless the employer and employee agree upon an alternative timeframe). The current employer must send the election notices to the incoming employer as soon as practicable, but not later than 5 working days from the time the employer receives the election information from the employee.
Employers, employees and unions can negotiate alternatives to the transfer of employees, such as redeployment within the existing business. Any alternative arrangements must be in writing.
Employees can also decide not to transfer to the new employer. This may mean, however, that their existing employer has no role available and, as a last result, may make the employee redundant.
Employment relationship when employee has transferred
Once employees have transferred, it is up to the new employer to decide how best to manage their resources. Where the new employer has more employees than work available, they may need to reassess employment needs and, as a last resort, make some employees redundant. If transferred employees are made redundant because of the transfer situation, they may become eligible for redundancy entitlements:
- where an employee’s employment agreement covers redundancy entitlements in a restructuring situation, this agreement continues to apply after the transfer
- if the employment agreement is silent on redundancy entitlements in a restructuring situation, the employee may be eligible for either:
- redundancy entitlements agreed with the new employer, or
- redundancy entitlements decided by the Employment Relations Authority (if the employee and the new employer can’t agree).
The ERA can help negotiate redundancy entitlements in some situations
Employers, employees and their unions can apply to get help from the Employment Relations Authority (ERA) if they cannot agree on redundancy entitlements in transfer situations. Note this only applies where the employee’s employment agreement is silent on the topic of redundancy entitlements that are relevant to the situation (i.e. they are not included or excluded).
The ERA will examine the negotiation process used by the employee and employer, and tell them what more they should use to try and reach an agreement. If the ERA decides that further negotiation is not needed, they can set the redundancy entitlements to be provided to the employee. If they do this, then the ERA will take into account:
- any other redundancy entitlements contained in the employment agreement
- the employee’s length of service with their new employer and their previous employer
- how much notice of the redundancy the employee received
- the employer’s ability to provide redundancy entitlements
- the likelihood of the employee being able to get another job, and
- any other relevant matters.
It is a good idea for employers and employees to keep these things in mind when trying to agree on redundancy entitlements.
Amending the categories of employees that receive protection
The categories of employees that receive protection when their work is restructured can be amended through an application process
An applicant can make a request to the Minister to add, amend or delete the category of employees listed in Schedule 1A of the Act. The Minister may then make a recommendation to the Governor-General. In order to make this recommendation to the Governor-General, the Minister must be satisfied that the employees in this category:
- are employed in a sector in which restructuring of an employer’s business occurs frequently
- have terms and conditions of employment that tend to be undermined by the restructuring of an employer’s business; and
- have little bargaining power.
The request must:
- clearly identify the category of employees to which the request relates; and
- specify the sector in which the category of employees provides the service; and
- include evidence that the employees either satisfy (if a new category is to be added) or no longer satisfies (if a category is to be deleted) the applicable criteria stated above.
The Minister, before making a recommendation to amend Schedule 1A of the Act by Order in Council, must:
- receive a report from MBIE about whether the category of employees satisfy the above criteria
- provide that report to, and consult with, employers, employees, representatives of employers or employees as the Minister considers appropriate.