There are special protections in place under the Employment Relations Act 2000 (the Act) to protect specified employees if a business is sold or transferred, or a contract for services is lost.
These rules protect vulnerable workers in sectors considered susceptible to frequent restructuring where employees have little bargaining power.
Until now, these rules have applied to cleaning services and food catering services in any workplace, laundry services in the education, health or age-related residential sectors, orderly services in the health or age-related residential care sector and caretaking services in the education sector.
Effective 1 July 2021, Security Officers have been added to the list of protected employees, placing additional obligations on employers who engage these employees if a business is sold or restructured.
What has Changed?
Security officers engaged for the following services are now included as protected employees:
guarding real or personal property
monitoring premises on site and in real time (e.g. via CCTV)
controlling crowds at events
escorting prisoners or performing courtroom custodial duty
undertaking mobile patrols and/or
collecting cash from premises (e.g. banks, retail stores)
The rules exclude those that work as private investigators, security technicians, security consultants, confidential document destruction workers, repossession workers, personal guards, court security officers, police officers, or corrections officers.
The rules do not apply in certain restructuring situations, depending on when agreements are reached between companies and when they take effect.
What Protections Apply?
The protections for these categories of employees apply when:
a business is sold or transferred
a business decides to contract work out or in (insourcing or outsourcing) or
a contract for services is lost to another party.
In these circumstances, the protected employees can choose to transfer their employment to the new business on the same terms and conditions. Employees may, however, choose not to transfer to the new employer.
Incoming employers are required to offer employment to these employees on the same terms and conditions. A previous exemption for small to medium enterprises has now been removed, so these rules apply to employers of all sizes.
What Needs to Occur?
There are obligations on both the outgoing employer and the incoming employer. These rules are complex with strict timeframes, so seek advice if you think these rules may apply to your business.
As an overview:
the outgoing employer needs to give a notice to their employees and provide information to the incoming employer, as well as a warranty that they have not taken any steps which will damage the business of the new employer; and
the incoming employer must offer employment on the same terms and conditions to the protected employees, and negotiate with the outgoing employer about how the employee’s entitlements will transfer, so that the employee is not disadvantaged due to the transfer (for example sick leave and annual leave entitlements).
Summary
If you engage eligible security officers, or any other category of worker protected under the Employment Relations Act, you need to be aware of the additional obligations that apply if your business is sold or restructured.
Need Workplace Advice?
While this article provides a brief overview of the main issues, if you believe any of these may impact your business, get in touch with Peninsula today.