Document ID: chunk:federal_register_of_legislation:C2024C00351:section:36
Version: federal_register_of_legislation:C2024C00351
Segment Type: section
Provision Reference: s 36
Character Range: 37215–39815

36  How section 35 applies if there is a transfer of business

When this section applies to a post‑transfer contract—general
 (1) Subject to subsection (2), this section applies to a services contract (the post‑transfer contract) if:
 (a) under a services contract (the first contract) between an independent contractor and another person (the former principal), the independent contractor performs or performed work of a particular kind for a business; and
 (b) the first contract:
 (i) is a pre‑reform commencement contract; or
 (ii) is a continuation contract in relation to a pre‑reform commencement contract; and
 (c) after the reform commencement, there is a transfer (by whatever means, and however described) of all or part of the business; and
 (d) the post‑transfer contract is a services contract, entered into by the independent contractor with another person, that is for the performance, after the transfer takes effect, of the same kind of work for the business or the transferred part of the business.

Section does not apply to a post‑transfer contract if reform opt‑in agreement has already taken effect
 (2) This section does not apply to the post‑transfer contract if:
 (a) a reform opt‑in agreement covered the first contract, or covered another contract that is a continuation contract in relation to:
 (i) if subparagraph (1)(b)(i) applies—the first contract; or
 (ii) if subparagraph (1)(b)(ii) applies—the pre‑reform commencement contract referred to in that subparagraph; and
 (b) the reform opt‑in agreement's date of effect is before the transfer takes effect.
Note: If this subsection applies, subsection (3) will not apply and so the post‑transfer contract cannot be a continuation contract.

If section applies, post‑transfer contract may be continuation contract (even though parties are not the same)
 (3) If this section applies to the post‑transfer contract, then, in determining for the purpose of section 35 whether the post‑transfer contract is a continuation contract in relation to:
 (a) if subparagraph (1)(b)(i) applies—the first contract; or
 (b) if subparagraph (1)(b)(ii) applies—the pre‑reform commencement contract referred to in that subparagraph;
the following provisions have effect:
 (c) the parties to the post‑transfer contract are taken to be the same as the parties to the contract referred to in whichever of paragraphs (a) and (b) of this subsection applies;
 (d) subsection 32(2) has effect as if that subsection also contained a paragraph referring to the interval being because of the transfer of the business or the part of the business.