Protection of Employees in a Transmission of Business: What is Left in the Wake of Work Choices and Subsequent Statutory Amendments

Regulation of the employment relationship in the context of a transmission of business has undergone substantial revision as a result of the Workplace Relations Amendment (WorkChoices) Act 2005 (Cth), and more recently, the Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth). The first part of this paper reviews the statutory treatment of transmission of business in the past and considers the traditional justification for regulatory intervention in this area. The focus then turns to a detailed examination of the new statutory provisions and analyses the possible impetus for the changes, as well as identifying potential shortcomings. Finally, it looks at recent amendments relating to the application of duress in connection with Australian Workplace Agreements. It is argued that, despite the growing body of case law in this area, statutory intervention was necessary in order to ensure that, in a transmission of business, the obligations of employers were clearly prescribed and the market position of employees was properly protected