§ 18A — Transfer of employment

18A.—(1) If an undertaking (whether or not it is an undertaking established by or under any written law) or part thereof is transferred from one person to another —(a)

such transfer does not operate to terminate the contract of service of any person employed by the transferor in the undertaking or part transferred but such contract of service has effect after the transfer as if originally made between the person so employed and the transferee; and

(b)

the period of employment of an employee in the undertaking or part transferred at the time of transfer counts as a period of employment with the transferee, and the transfer does not break the continuity of the period of employment.

(2) Without affecting subsection (1), on completion of a transfer referred to in that subsection —(a)

all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract of service are transferred by virtue of this section to the transferee;

(b)

any act or omission done before the transfer by the transferor in respect of that contract of service is deemed to have been done by the transferee; and

(c)

any act or omission done before the transfer by an employee employed in the undertaking or part transferred in relation to the transferor is deemed to have been done in relation to the transferee.

(3) On the completion of a transfer mentioned in subsection (1), it is declared for the avoidance of doubt that the terms and conditions of service of an employee whose contract of service is preserved under that subsection are the same as those enjoyed by the employee immediately prior to the transfer.

(4) Subsections (1) and (2) do not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of and sentenced for any offence.

(5) As soon as it is reasonable and before a transfer under subsection (1) takes place, to enable consultations to take place between the transferor and the affected employees and between the transferor and a trade union of affected employees (if any), the transferor must notify the affected employees and the trade union of affected employees (if any) of —(a)

the fact that the transfer is to take place, the approximate date on which it is to take place and the reasons for it;

(b)

the implications of the transfer and the measures that the transferor envisages taking, in connection with the transfer, in relation to the affected employees or, if the transferor envisages that no measures will be so taken, that fact; and

(c)

the measures that the transferee envisages the transferee will, in connection with the transfer, take in relation to such of those employees as, by virtue of subsection (1), become employees of the transferee after the transfer or, if the transferee envisages that no measures will be so taken, that fact.

(6) As soon as it is reasonable, the transferee must give the transferor such information so as to enable the transferor to perform the duty imposed on the transferor by virtue of subsection (5)(c).

(7) Where the Commissioner considers that there has been an inordinate delay —(a)

by the transferor in notifying the affected employees or a trade union of affected employees of the matters set out in subsection (5); or

(b)

by the transferee in notifying the transferor of the information set out in subsection (6),

the Commissioner may, by written notice, direct the transferor to comply with subsection (5) or the transferee to comply with subsection (6) (as the case may be) within such time as may be specified in the notice.

(8) Where, immediately before a transfer referred to in subsection (1), a trade union is recognised by the transferor for the purposes of the Industrial Relations Act 1960 in respect of any employee who in consequence of the transfer becomes the employee of the transferee, the trade union, after the transfer —(a)

is deemed to be recognised by the transferee for the purposes of the Industrial Relations Act 1960 if, after the transfer, the majority of employees employed by the transferee are members of the trade union; or

(b)

in any other case, is deemed to be recognised by the transferee only for the purpose of representing the employee on any dispute arising —(i)

from any collective agreement that was entered into between the transferor and the trade union while the collective agreement remains in force; or

(ii)

from the transfer of the employee’s employment from the transferor to the transferee under this section.

(8A) For the purposes of subsection (8)(b), any collective agreement that was entered into between the transferor and the trade union of the affected employees and in force immediately before the transfer continues in force between the transferee and the trade union of the affected employees for a period of 18 months after the date of the transfer or until the date of its expiry as specified in the collective agreement, whichever is the later.[26/2013]

(9) A dispute or disagreement between the transferor and an employee or the transferee and an employee arising from a transfer under subsection (1), whether before or after the transfer, may be referred by a party to the dispute or disagreement to the Commissioner under section 115 and is deemed to be a dispute to which that section applies.

(10) Where a dispute or disagreement has been referred to the Commissioner pursuant to subsection (9), the Commissioner has, in addition to the powers conferred under section 115, the powers —(a)

to delay or prohibit the transfer of employment of the employee to the dispute from the transferor to the transferee under subsection (1); and

(b)

to order that the transfer of employment of the employee to the dispute from the transferor to the transferee under subsection (1) be subject to any terms that the Commissioner considers just.

(11) The Minister may make regulations that the Minister considers necessary or expedient to give effect to the provisions of this section and, in particular, may make regulations —(a)

to provide for the form and manner of consultations between the transferor and the affected employees and between the transferor and a trade union of affected employees under subsection (5);

(b)

for the type of information that must be communicated by the transferor to the affected employees and to a trade union of affected employees under subsection (5), or by the transferee to the transferor under subsection (6); and

(c)

to provide for a mechanism for conciliation of disputes arising out of or relating to a transfer mentioned in subsection (1) between any employer and employee.

(12) Nothing in this section prevents a transferee of an undertaking referred to in subsection (1) and an employee whose contract of service is preserved under that subsection or a trade union representing such an employee from negotiating for and agreeing to terms of service different from those contained in the contract of service that is preserved under that subsection.

(13) In this section —“affected employee” means any employee of the transferor who may be affected by a transfer under subsection (1) or may be affected by the measures taken in connection with such a transfer;

“trade union” means a trade union which has been —(a)

registered under any written law for the time being in force relating to the registration of trade unions; and

(b)

accorded recognition by the employer pursuant to section 17(1) of the Industrial Relations Act 1960;

“transfer” includes the disposition of a business as a going concern and a transfer effected by sale, amalgamation, merger, reconstruction or operation of law;

“undertaking” includes any trade or business.

—(1) If an undertaking (whether or not it is an undertaking established by or under any written law) or part thereof is transferred from one person to another —(a)

such transfer does not operate to terminate the contract of service of any person employed by the transferor in the undertaking or part transferred but such contract of service has effect after the transfer as if originally made between the person so employed and the transferee; and

(b)

the period of employment of an employee in the undertaking or part transferred at the time of transfer counts as a period of employment with the transferee, and the transfer does not break the continuity of the period of employment.

(2) Without affecting subsection (1), on completion of a transfer referred to in that subsection —(a)

all the transferor’s rights, powers, duties and liabilities under or in connection with any such contract of service are transferred by virtue of this section to the transferee;

(b)

any act or omission done before the transfer by the transferor in respect of that contract of service is deemed to have been done by the transferee; and

(c)

any act or omission done before the transfer by an employee employed in the undertaking or part transferred in relation to the transferor is deemed to have been done in relation to the transferee.

(3) On the completion of a transfer mentioned in subsection (1), it is declared for the avoidance of doubt that the terms and conditions of service of an employee whose contract of service is preserved under that subsection are the same as those enjoyed by the employee immediately prior to the transfer.

(4) Subsections (1) and (2) do not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of and sentenced for any offence.

(5) As soon as it is reasonable and before a transfer under subsection (1) takes place, to enable consultations to take place between the transferor and the affected employees and between the transferor and a trade union of affected employees (if any), the transferor must notify the affected employees and the trade union of affected employees (if any) of —(a)

the fact that the transfer is to take place, the approximate date on which it is to take place and the reasons for it;

(b)

the implications of the transfer and the measures that the transferor envisages taking, in connection with the transfer, in relation to the affected employees or, if the transferor envisages that no measures will be so taken, that fact; and

(c)

the measures that the transferee envisages the transferee will, in connection with the transfer, take in relation to such of those employees as, by virtue of subsection (1), become employees of the transferee after the transfer or, if the transferee envisages that no measures will be so taken, that fact.

(6) As soon as it is reasonable, the transferee must give the transferor such information so as to enable the transferor to perform the duty imposed on the transferor by virtue of subsection (5)(c).

(7) Where the Commissioner considers that there has been an inordinate delay —(a)

by the transferor in notifying the affected employees or a trade union of affected employees of the matters set out in subsection (5); or

(b)

by the transferee in notifying the transferor of the information set out in subsection (6),

the Commissioner may, by written notice, direct the transferor to comply with subsection (5) or the transferee to comply with subsection (6) (as the case may be) within such time as may be specified in the notice.

(8) Where, immediately before a transfer referred to in subsection (1), a trade union is recognised by the transferor for the purposes of the Industrial Relations Act 1960 in respect of any employee who in consequence of the transfer becomes the employee of the transferee, the trade union, after the transfer —(a)

is deemed to be recognised by the transferee for the purposes of the Industrial Relations Act 1960 if, after the transfer, the majority of employees employed by the transferee are members of the trade union; or

(b)

in any other case, is deemed to be recognised by the transferee only for the purpose of representing the employee on any dispute arising —(i)

from any collective agreement that was entered into between the transferor and the trade union while the collective agreement remains in force; or

(ii)

from the transfer of the employee’s employment from the transferor to the transferee under this section.

(8A) For the purposes of subsection (8)(b), any collective agreement that was entered into between the transferor and the trade union of the affected employees and in force immediately before the transfer continues in force between the transferee and the trade union of the affected employees for a period of 18 months after the date of the transfer or until the date of its expiry as specified in the collective agreement, whichever is the later.[26/2013]

(9) A dispute or disagreement between the transferor and an employee or the transferee and an employee arising from a transfer under subsection (1), whether before or after the transfer, may be referred by a party to the dispute or disagreement to the Commissioner under section 115 and is deemed to be a dispute to which that section applies.

(10) Where a dispute or disagreement has been referred to the Commissioner pursuant to subsection (9), the Commissioner has, in addition to the powers conferred under section 115, the powers —(a)

to delay or prohibit the transfer of employment of the employee to the dispute from the transferor to the transferee under subsection (1); and

(b)

to order that the transfer of employment of the employee to the dispute from the transferor to the transferee under subsection (1) be subject to any terms that the Commissioner considers just.

(11) The Minister may make regulations that the Minister considers necessary or expedient to give effect to the provisions of this section and, in particular, may make regulations —(a)

to provide for the form and manner of consultations between the transferor and the affected employees and between the transferor and a trade union of affected employees under subsection (5);

(b)

for the type of information that must be communicated by the transferor to the affected employees and to a trade union of affected employees under subsection (5), or by the transferee to the transferor under subsection (6); and

(c)

to provide for a mechanism for conciliation of disputes arising out of or relating to a transfer mentioned in subsection (1) between any employer and employee.

(12) Nothing in this section prevents a transferee of an undertaking referred to in subsection (1) and an employee whose contract of service is preserved under that subsection or a trade union representing such an employee from negotiating for and agreeing to terms of service different from those contained in the contract of service that is preserved under that subsection.

(13) In this section —“affected employee” means any employee of the transferor who may be affected by a transfer under subsection (1) or may be affected by the measures taken in connection with such a transfer;

“trade union” means a trade union which has been —(a)

registered under any written law for the time being in force relating to the registration of trade unions; and

(b)

accorded recognition by the employer pursuant to section 17(1) of the Industrial Relations Act 1960;

“transfer” includes the disposition of a business as a going concern and a transfer effected by sale, amalgamation, merger, reconstruction or operation of law;

“undertaking” includes any trade or business.