If there is a transfer of business on or after 1 January 2010 the National Employment Standards (NES) apply.
From 1 January 2010, the NES replaced the non-pay rate provisions of the Australian Fair Pay and Conditions Standard (the Standard).
The NES is a set of minimum entitlements that apply to all employers and employees who are covered by the national workplace system.
Minimum entitlements in the NES include paid annual leave, personal/carer’s leave and an entitlement to redundancy pay. You may receive additional entitlements under another industrial instrument that applies to you.
From 1 January 2010, paid annual and personal/carer’s leave you may have accrued under the Standard is treated as if it were accrued under the NES with the NES rules applying to that leave, as a minimum.
Where there is a transfer of employment (which includes a transfer of business) after 1 January 2010:
- Your new employer is obliged to recognise your service to your previous employer:
- when calculating your entitlements under the NES
- for the purposes of your eligibility to make a request for flexible working arrangements under the NES.
- However, your service cannot be counted twice when calculating your entitlements (eg. where you have already received payment from your previous employer in lieu of notice of termination on the basis of a period of service with them, that period of service is not counted again when calculating your entitlement to notice of termination with your new employer).
- If your new employer is not ‘associated’ with your previous employer for the purposes of the Fair Work Act, they may choose whether or not to recognise your service with your previous employer when calculating your entitlement to annual leave and redundancy pay.
- If they choose not to recognise your previous service, your previous employer must make payment for any accrued annual leave and redundancy pay (if you are eligible).
- In addition, you may not be entitled to redundancy pay from your previous employer if you reject the new employer's offer of employment if:
- the terms and conditions are substantially similar to (and are, overall, no less favourable than) your terms and conditions of employment with your previous employer
- the offer recognises your service with the previous employer for the purposes of redundancy pay
- had you accepted the offer, there would have been a transfer of employment, and
- there is no order from Fair Work Australia to the contrary.
Need more information? Call us or chat online with our 
Live Chat adviser.