Transmission of Business Provisions in Outsourcing and Privatisation

By Trent D. Sebbens

An examination of the provisions regulating transmission of business contained in the Workplace Relations Act.

The genesis and historical development of the regime is considered focusing on the new era of cases culminating in the High Court decision in PP Consultants Pty Ltd v Finance Sector Union and its subsequent application.

The extant policy foundations of the regime are analysed, based on the interpretation of the critical notions of 'business' and 'transmission' by the courts. The article concludes that the courts have failed to analyse critically the competing policy considerations of protecting employee' entitlements and of encouraging capital restructuring and economic prosperity, and have not adequately considered the place and purpose of the transmission of business provisions within Australia's contemporary labour law regime. It is suggested that the transmission of business provisions require either a thorough re-examination by the High Court, or legislative amendment.

(Australian Journal of Labour Law. vol. 16, no. 2, September 2003)