Transfer of Business (Protection of Employment)

L.N. 363 of 2012

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Transfer of Business (Protection of Employment)

(Amendment) Regulations, 2012

IN exercise of the powers conferred by articles 38 and 48(2) of

the Employment and Industrial Relations Act, the Minister for

Justice, Dialogue and the Family has made the following regulations:-

The title of these regulations is the Transfer of Business Citation.

(Protection of Employment) (Amendment) Regulations, 2012, and

these regulations shall be read and construed as one with the Transfer S.L. 452.85

of Business (Protection of Employment) Regulations, hereinafter

referred to as "the principal regulations".

Sub-regulation (1) of regulation 2 of the principal Amends

regulation 2 of

regulations shall be amended as follows

the principal

regulations.

(a)

immediately after the definition "Act", there shall be

added the following new definition

"service provision change" means a situation in

which

(i) activities cease to be carried out by a

person, hereinafter referred to as a "client", on his

own behalf and are carried out instead by another

person on the client’s behalf, hereinafter referred

to as a "contractor";

(ii activities cease to be carried out by a

contractor on a client’s behalf, whether or not

those activities had previously been carried out by

the client on his own behalf, and are carried out

instead by another subsequent contractor on the

client’s behalf; or

(iii) activities cease to be carried out by a

contractor or a subsequent contractor on a client’s

behalf, whether or not those activities had

previously been carried out by the client on his

own behalf, and are carried out instead by the

client on his own behalf;";

(b) in the definition "transfer", for the words "an

economic activity;" there shall be substituted the words "an

economic activity and shall include a service provision change

in accordance with these regulations;";

(c)

in the definition "transferee", for the words "of a

transfer, becomes the employer", there shall be substituted the

words "of a transfer, which includes a service provision change,

becomes the employer"; and

(d) in the definition of "transferor", for the words "part

of the undertaking, ceases to be the employer", there shall be

substituted the words "part of the undertaking, which includes a

service provision change, ceases to be the employer".

Regulation 3 of the principal regulations shall be amended

as follows

(a)

in sub-regulation (1) thereof

(i) paragraphs (b) and (c) thereof shall be

renumbered as paragraphs (c) and (d) respectively; and

(ii) immediately after paragraph (a) thereof, there

shall be added the following new paragraph

"(b) to a service provision change;"; and

(b) immediately after sub-regulation (2) thereof, there

shall be added the following new sub-regulation

"(3) A transfer of an undertaking or part of an

undertaking in terms of these regulations

(a) may be effected by more than one

transaction; and

(b) may take place whether or not any

property is transferred to the transferee by the

transferor.".

Immediately after regulation 3 of the principal regulations,

there shall be added the following new regulation

" Rights,

3A. (1) After a transfer, the contract

powers,

of employment of each person employed by

obligations,

the transferor shall have effect as if originally

etc., after

transfer.

made between the person so employed and the

transferee.

(2) On the completion of a transfer, all

the transferor’s rights, powers, obligations

and liabilities under or in connection with any

contract of employment referred to in sub-

regulation (1) shall be transferred to the

transferee

Provided that the transferor shall be

responsible to reimburse the transferee for the

payment of any statutory bonuses and income

supplements in terms of law which relate to

the period in employment with the transferor

but payment of which becomes due on a date

when the employee is employed by the

transferee, and payment for the pro rata

annual leave entitlement not availed of during

employment with the transferor in respect of

the period during which the transferor was the

employer, whilst the transferor shall have the

right to be reimbursed by the transferee in

respect of any annual leave which had been

granted to the employee by the transferor prior

to the date of transfer which was in excess of

the pro rata entitlement of annual leave till the

date of transfer

Provided further that in the case where

employees who were employed in the

business or part of the business to be

transferred have been made redundant prior to

a transfer of business which would have

otherwise resulted in the transfer of their

employment with the transferee, the

transferee has an obligation to re-employ,

with the same conditions of employment,

such employees if their previous posts

become available within one year from the

notice of redundancy according to and in

terms of article 33 of the Act and the

transferor shall provide all the necessary

information in order for the transferee to be

able to abide by this requirement.".

In the proviso to regulation 4 of the principal regulations,

Amends

regulation 4 of

the words "also be given to that employee." shall be substituted by the

the principal

words "also be given to that employee and shall be provided by the

regulations.

transferor by the date of the transfer of business.".

€0.36