Document ID: chunk:federal_register_of_legislation:C2007C00183:clause:16_5
Version: federal_register_of_legislation:C2007C00183
Segment Type: clause
Provision Reference: sch 16 cl 5
Character Range: 1117656–1119544

5  Transferring employees

 (1) A person is a transferring employee for the purposes of this Schedule if:
 (a) the person is employed by the old employer immediately before the time of transmission; and
 (b) the person:
 (i) ceases being employed by the old employer; and
 (ii) becomes employed by the new employer in the business being transferred;
  within 2 months after the time of transmission.

Note: Clause 6A of this Schedule provides that references to employees and employment have their ordinary meanings in relation to a Division 3 pre‑reform certified agreement if the old employer is not an employer (within the meaning of subsection 4AB(1)).

 (2) A person is also a transferring employee for the purposes of this Schedule if:
 (a) the person is employed by the old employer at any time within the period of 1 month before the time of transmission; and
 (b) the person's employment with the old employer is terminated by the old employer before the time of transmission for genuine operational reasons or for reasons that include genuine operational reasons; and
 (c) the person becomes employed by the new employer, in the business being transferred, within 2 months after the time of transmission.

Note: Clause 6A of this Schedule provides that references to employees and employment have their ordinary meanings in relation to a Division 3 pre‑reform certified agreement if the old employer is not an employer (within the meaning of subsection 4AB(1)).

 (3) In applying clause 6 and Parts 3 to 5 of this Schedule in relation to a person who is a transferring employee under subclause (2) of this clause, a reference in those provisions to a particular state of affairs existing immediately before the time of transmission is to be read as a reference to that state of affairs existing immediately before the person last ceased to be an employee of the old employer.