The transfer of business provisions of the fair work act in national and international context

Since 1914, federal industrial legislation has provided for the transmission of industrial instruments where there has been a transmission of a business from one employing enitity to another. This provision was retained in modified form by WorkChoices, and is now to be found in Pt 2-8 of teh Fair Work Act. Amongst other things, Pt 2-8 refers to 'transfer' rather than 'transmission', and adopts a more liberal approach in relation to what constitutes transmission/transfer. Also, for the first time, it makes comprehensive provision for protection of continuity of service as between transferor and transferee. On the other hand, the Fair Work Act retains teh Work Choices requirement that there be a transferring employee before an industrial instrument can transfer, and the stipulation that (with limited exceptions) transferred instruments bind teh transferee only in relation to transferring employees. By linking transfer of industrial instruments to the transfer of employees, Pt 2-8 (like Work Choices) moves some way towards the approach by the council of the European Union's Acquired Rights Directive, but still falls short of that standard in failing to recognise that employees of the transferor have the right to continuing employment.