Fact Sheets and Checklists | Fresh HR Insights

FACT SHEETS AND CHECKLISTS

We are brought together a selection of fact sheets and Checklist that will help you to understand different areas of your business. Each fact sheet provides relevant and up to date information that will assist you and your business. 

Checklists for Small Business

Our FREE checklists are designed to act as a guide for you when dealing with workplace matters. For more complex matters or for advice we highly recommend that you book time with our team of Experts. You can book a consult using the button below.

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Record Keeping Checklist (Fair Work Act)

Specifically, the checklist addresses leave records, pay slips, hours of work, basic employment details, overtime, cashed out leave, superannuation contributions, individual flexibility agreements, guarantee of annual earnings, termination of employment, transfer of business, and flexibility requests.

Failure to comply with the Act and Regulations could result in fines being imposed by the prosecuting entity including the Fair Work Ombudsman, union or employee. Failure to keep superannuation records may also breach superannuation law.

In addition to the use of the checklist, it is recommended that employers also consider additional requirements as contained in contracts of employment, applicable awards or agreements, policies, and legislation such as superannuation, migration, taxation, workers’ compensation, and work health and safety legislation.

Record-Keeping-Checklist-(Fair-Work-Act)

Payment of Salaries and Wages Checklist

The Payment of Salaries and Wages Checklist is a useful tool that aims to assist employers to address payment and record-requirements contained in the Act and the Regulations.

Specifically, the checklist addresses frequency of payment, deductions, employee records, pay records, superannuation contributions into defined contribution schemes, and employee pay slips.

Failure to comply with the Act and Regulations could result in the imposition of civil penalties by the Fair Work Ombudsman. Breaches in relation to superannuation may also breach superannuation law.

In addition to the use of the checklist, it is recommended that employers also:

  • consider additional requirements as contained in superannuation legislation, contracts of employment, applicable awards or enterprise agreements, or policies;
  • ensure employees are paid at least monthly; and
  • ensure that any deduction an employee authorises is only made principally for the employee’s benefit.

Payment-of-Salaries-and-Wages-Checklist

Recruitment Checklist

There are a number of benefits for your business in using a checklist. Checklists are useful in ensuring that workplace processes are applied in a way that is both consistent and comprehensive. Checklists operate as a memory aid and reminder of the range of factors that should be taken into account when identifying the correct pay and conditions for an employee.

Recruitment-Checklist

Adapting the checklist to each individual workplace is advisable.

Interview Guide Checklist
A guide serves the following purposes:
  • To ensure the interviewer obtains information that is required to assess whether each applicant is suitable for the job
  • To ensure that each applicant is treated in a non-discriminatory way by being asked the same series of basic questions.

As a safeguard to seek to prevent the interviewer asking questions that are unlawful or inappropriate.

Interview-Guide-Checklist

In preparing the interview guide, Fresh HR Insights form will prompt you to list the questions to be asked of each employee, as well as the essential and desirable criteria for the position.Fresh HR Insights form will prompt you to enter the following information:

  • Essential criteria
  • Desirable criteria
  • Assessment of criteria.
It is recommended that interviewers are trained in relation to equal opportunity obligations, to ensure they do not ask questions or apply criteria which are discriminatory.

EEO Checklist
Policies and practices should be reviewed generally to ensure they contain no elements which may discriminate either directly or indirectly against workplace participants on any prohibited grounds. Discriminatory or potentially discriminatory policies and practices should be removed or restructured so that they do not constitute barriers to EEO.
 
By reviewing the criteria contained in the checklist, you should develop a better idea of whether there are barriers to EEO in your organisation. If having reviewed the criteria you feel there may be EEO issues in your workplace, you should seek appropriate advice.
 
If you have not placed a tick in any of the boxes in the checklist, you should establish plans to address a possible area of discrimination and seek advice.
More information on discrimination can be found at:

Termination Checklist

General Information

There are also a number of other legal risks when terminating an employee’s employment (eg. discrimination and unlawful termination and general protections claims). Therefore it is crucial to manage the termination process diligently.

This checklist provides tips on managing the termination process and highlights the key considerations for an employer when making a decision to terminate an employee.

When you are calculating termination entitlements, you should be aware that they are often quite complex, particularly for long-serving employees. It is therefore prudent that you check any calculations thoroughly. If you are unsure of the correct entitlements to offer or pay or the relevant taxation treatment for each component you should seek legal and relevant financial and taxation advice.

Where an employee requests that you provide a written reference, you should carefully consider this as legal action can arise if the reference you provide is not a true reflection of the employee’s employment and a future employer employs your former employee relying on that reference.

If you are unable to complete a matter outlined in the checklist, you should seek advice by calling our team on 0452 471 960.

Resignation Checklist

In terms of termination payments, employers should check that they have not over-calculated the entitlements owed before presenting such information to resigning employees. In some circumstances, employers may be bound to pay the additional amounts detailed in any termination summary, despite the fact a miscalculation has occurred. Likewise, if an employer has under-calculated the entitlements owed, it may be in breach of a relevant industrial instrument or applicable legislation, which may lead to a financial penalty, damages and/or interest on the unpaid entitlements, being imposed.

Calculations are often quite complex, particularly for long-serving employees, so it is recommended that employers check such calculations thoroughly. If an employer is unsure of the correct entitlements to offer or pay, or what the relevant taxation treatment is for each component, they should seek relevant legal, financial and/or taxation advice.

Resignation-Checklist
 
It is also advisable to seek legal advice before agreeing to an employee’s request for a written reference. Legal action can arise if the reference an employer provides is not a true reflection of the employee’s employment with the company and a future employer employs the former employee relying on that reference. Likewise, any reference an employer provides should not be defamatory.

Redundancy Checklist
Generally speaking, termination of employment due to redundancy occurs where:
  • an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone;
  • that decision leads to the termination of the employee’s employment; and
  • there are no reasonable redeployment opportunities (including within the employer’s associated entities).
Under the Fair Work Act 2009 (Cth) (‘Act’) a dismissal will not be unfair where the person’s dismissal was a case of a genuine redundancy. Under the Act a redundancy will be genuine if:
  • the job will no longer be required to be performed by anyone because of the changes in the operational requirements of the employer’s enterprise; and
  • the employer has complied with any obligation to consult contained in an applicable modern award or enterprise agreement.
Possible redeployment

Ensuring that any redundancy is a genuine redundancy and exploring redeployment opportunities will assist employers in defending an unfair dismissal claim brought by an employee on the basis that the redundancy was not genuine and the termination of employment was harsh, unjust or unreasonable.

 

Accordingly, employers must consider, prior to terminating an employee due to redundancy, whether it would reasonable in all the circumstances for the person to be redeployed within:

  • the employer’s enterprise; or
  • the enterprise of an associated entity of the employer.

Record keeping
Employers should keep records of attempts made to re-deploy employees. Records of employer attempts to search for alternate jobs and the reasons why redundancy was necessary should also be retained (in the event a claim is made). Additionally records should be kept of the discussions with employees in connection with these matters. Employers should update the personnel file to note termination was due to redundancy.Legal advice
You should seek legal advice if you are unsure when terminating an employee whether the circumstances constitute a redundancy. If the termination of an employee’s employment is incorrectly classified as a redundancy and a redundancy payment is made, there may be taxation consequences for both the employer and employee. You should obtain taxation and legal advice about these issues if you are unclear as to the true nature of the termination.Additional obligations apply when you are terminating the employment of 15 or more employees. Before carrying out a redundancy employers should consult their enterprise agreements and awards to ensure they comply with any relevant requirements.Mandatory severance pay
National system employers should be aware that the Act introduces mandatory severance pay for employees made redundant in workplaces that are not a ‘small business employer’ as defined by the Act.

An obligation to provide severance pay under the Act applies from 1 January 2010. Importantly, continuous service (relevant to the calculation of severance pay) under the Act will only start to accrue from 1 January 2010 where an employee previously had no entitlement to severance pay as at 31 December 2009. Advice should be sought in relation to severance payments if you are unsure of your obligations under the Act.

Further considerations
Where 15 or more employees will be terminated due to redundancy, employers must notify Centrelink of the redundancies prior to any termination. If any of the employees are union members, employers must also notify the relevant unions prior to the termination of the employees. A form of that notification is available at this website.

Appropriate care needs to be taken in selecting employees for redundancy in order to avoid unlawful discrimination claims.

If you are unable to meet all the requirements in the checklist, you should seek legal advice.

Performance Management Checklist
Performance-Management-Checklist

An employer should seek legal advice before terminating an employee’s employment during the course of the performance management process.

Workplace Bullying Assessment Checklist

Workplace-Bullying-Assessment-Checklist

What steps should be taken to prevent workplace bullying?

Employers should take all reasonable steps to prevent bullying before it becomes a risk to the health and safety of its workers and others in the workplace. This is best achieved through a risk management process. This process should include:

  •     identification of bullying risk factors;
  •     assessment of the likelihood of bullying occurring from the risk factors identified and their potential impact on the workers or workplace;
  •     eliminating the risks, as far as reasonable practicable, or controlling, or minimising, them as far as reasonable practicable; and
  •     reviewing the effectiveness of the control methods put in place and the process generally.

What are some of the common risk factors which may lead to bullying?
Bullying can be the result of a number of different factors in a workplace, from a company’s culture to poor management skills. Some risk factors which make bullying more likely to occur are:    Organizational change – i.e significant change in the workplace that may lead to job insecurity for example, restructure and redundancy, introduction of technology, change in management.

    The company’s culture – the company’s values, views and beliefs can either expressly or implicitly encourage bullying behaviours, for example, when a company promotes aggressive behaviour as a means of ensuring its workers are performing their roles, or adopts a culture in which it is acceptable to ignore such behaviours.

    Negative leadership styles – such as strict, autocratic management styles, which do not allow for flexibility or involvement by employees; or passive, ‘laissez-faire’ management styles which are characterized by a tendency to avoid decisions, inadequate supervision and little guidance to workers.

    Inappropriate systems of work – this includes excessive workloads, unreasonable timeframes, uncertainty about roles and how they should be performed, and lack of employee support.

    Poor work relationships – can be characterized by poor communication, negative relationships with supervisors or colleagues, excessive criticism by manager and the exclusion or isolation of workers.

    Workforce characteristics – a company’s workforce may be made up groups of workers who may be at a higher risk of bullying because of certain characteristics: for example, young workers, new workers, apprentices, injured workers, workers in a minority group because of their race, disability, religion, gender or sexual preference.

This checklist has been developed to assist employers in their duty to identify, assess, eliminate and/ or control bullying in the workplace, taking into account the common risk factors.

Consultation
Please note that the WHS Legislation requires that as a PCBU, an employer must, as far as reasonably practicable, consult with its employees or others carrying out work, before making decisions on health and safety matters, including bullying. If there are health and safety representatives then they must be involved in the consultation process. Consultation must be carried out when developing policies and procedures relating to bullying, including complaint procedure. Consultation involves sharing information with workers, allowing then to express views and taking those views into account.

Further Guidance
There is further guidance on the prevention of bullying in the workplace in Safe Work Australia Code of Practice – Preventing and Responding to Workplace Bullying [with effect from 1 January 2012 in some States and shortly thereafter in the remaining States and Territories]. This code is generally applicable to all types of work and all workplaces covered by the Legislation, including workplaces that are mobile, temporary and remote. I can be used by managers, supervisors, workers (including volunteers and contractors), health and safety representatives and other persons at the workplace to assist with managing the risks associated with bullying in the workplace.

 

Ergonomics Checklist

This checklist will help you address the ergonomic/workstation issues in your workplace and reduce the risk of injuries. Complete this checklist for all individual workstations and consult with employees during this process.

Ergonomics-Checklist

First Aid Checklist

This checklist will enable you to identify the first aid needs for your business. Complete the questions and measure the responses against the requirements in your State or Territory. This information is available from the website of your local regulator e.g WorkCover.

First-Aid-Planning-Checklist

Fatigue Management Checklist
This checklist identifies factors [without limitation] to consider as part of the risk management process for identifying risks associated with shiftwork operations and driving long distances.

Contractor Pre-Qualification Checklist
The effective management of contractors requires a review of the work to be performed, the contractor’s qualifications to perform the work safely and whether they hold appropriate licenses and permits.
 
This checklist will assist in assessing specific contract requirements and the evaluation of contractors before work commences.
 
Use this checklist as part of establishing a list of preferred and authorised contractors to perform work for your company.

Manual Handling / Manual Tasks Checklist

This checklist is designed to assist in conducting a risk assessment on manual handling tasks.

This checklist will help you address the manual handling issues in your workplace and reduce the risk of injuries due to manual handling. Complete this checklist for all manual handling tasks and consult with employees during this process.

Personal Protective Equipment (PPE) Checklist
Personal Protective Equipment (PPE) refers to equipment, which is used in the workplace by a person, to protect them from a hazard. It is the least preferred method for controlling hazards, and should be used as a short term measure or in conjunction with other control measures.

Examples of Personal Protective Equipment (PPE) include safety goggles; safe footwear; face shields and ear plugs/ear muffs.

The PPE checklist will assist in identifying protective equipment and clothing required to perform the job safety.

WHS Documents Checklist
Audit of risks/hazards at the workplace — inventory
An audit/inventory should contain at least the following information:
  • who is the responsible officer of the business (re the conduct of the audit) — being an employee of the business;
  • dates the audit was conducted;
  • approach/method in outline;
  • which employees were involved in providing information;
  • notes on the information gathered from employees;
  • notes from existing accident records suggesting the existence of on-going hazards; and
  • notes from ‘near-miss records’ suggesting the existence of on-going hazards.

Risk/hazard management plan
This should be a central document composed for each and every workplace. The plan should note the risks and hazards identified at the workplace then grade those risks and hazards. This should be followed by an outline of what should be done to eliminate those risks and hazards or to reduce them to a safe level. The document should be continuously updated and revised and there must be employees who are responsible for consistently addressing the issues noted and who are responsible for the implementation of the measures outlined in the plan.
 

Induction list — WHS issues to emphasise
Whenever new employees join an employer they should be properly introduced to the important aspects of WHS that apply at the workplace — this means that at least the following are conveyed to each new employee:
  • relevant information on basic procedures in case of emergencies (eg fire, including the identification of fire wardens);
  • location of first-aid assistance and introduction to first-aid officers;
  • outline of WHS policies in brief and information on how to access the details;
  • any rules about required safety clothing, equipment and procedures;
  • information about any WHS committees and representatives operating at the workplace; and
  • any applicable smoking and alcohol and any other drug policies at the workplace.
Policies and procedures on WHS  
This is an open-ended list, depending on the particular nature of the business. There are, of course, some basic matters that should be covered like:
  • committees and representatives;
  • responsibilities of managers, supervisors, and employees;
  • rehabilitation and return to work;
  • critical health issues like smoking, HIV (and AIDS), alcohol and other drugs;
  • first-aid;
  • emergency evacuation; and
  • safe operation procedures for all equipment.
Relevant Material Safety Data Sheets
A Material Safety Data Sheet (MSDS) is designed to provide both workers and emergency personnel with the proper procedures for handling or working with a particular substance. An MSDS ordinarily includes information such as physical data (melting point, boiling point, flash point etc.), toxicity, health effects, first aid, reactivity, storage, disposal, protective equipment, and spill/leak procedures.
These are of particular use if a spill or other accident occurs.
 
MSDSs are meant for:
  • employees who may be occupationally exposed to a hazard at work;
  • employers who need to know the proper methods for storage etc; and
  • emergency responders such as fire-fighters, hazardous material crews, emergency medical technicians, and emergency room personnel.
The Internet has a wide range of free resources. A handy list of over 85 such sites can be found here
 
Accident records
Properly maintained accident records will assist employers to gain an understanding of what went wrong when an accident occurred, and to be able to take measures in the future to avoid a repetition of what went wrong. The law requires that accident records be kept for workers compensation and WHS reasons. Maintenance of accurate statistics is also a role carried out by relevant government agencies.
 
Records of near-misses
A ‘near miss’ is an occurrence which did not result in serious injury or damage to property, but had the potential to do so.
 
A ‘near miss’ can provide evidence that an incident with serious consequences may occur. By investigating ‘near misses’ or ‘close calls’ and acting upon the information gained from the investigation, employers can better manage such identified risks and implement preventative action.
 
WHS statutory authorities also require the notification of incidents that present a risk to the health and safety of personnel or property. Each State and Territory has specific reporting requirements and it is the responsibility of the employer/or occupier of the premises to ensure that they are aware of these requirements.
 
Overall WHS training plan; Relevant training documents; Training plans for different staff
 An employer needs to consider the particular aspects of the business and reflect these in the training provided to staff. Training should be planned around the audit of risks and hazards at a business. Once these risks and hazards are understood the requirements of training at that workplace can be met.
 
Various government agencies offer considerable assistance in relation to training staff on WHS — for example, Safe Work Australia.
Relevant reports from consultants
Depending on the staff at a workplace and the special needs of a particular workplace, there are varying circumstances where assistance should be provided by consultants.
 
Reports from employee representatives and committees/reports on actions arising from reports from representatives, committees and HSRs
 
Regular reports from WHS representatives, committees and HSRs should be part of the role of representatives and committees.
 
The content should be designed to have a genuine impact on WHS in the workplace. This means that standard entries without reference to the detail of what is needed on-site to improve WHS do not satisfy the point of the exercise. It can assist the exercise of achieving what is meaningful for a representative, a committee and/or HSRs to build reports around risks and hazards. This immediately creates a focus on the right objectives.
 
Workers compensation reports of injuries/claims to insurer 
 Insurers would normally impose requirements as to what is acceptable in terms of reports and claims from insured employers. Attention should be paid to these requirements. The insurer is interested in the necessary detail to progress the claim.They wish to know of any background or history that could be important in the assessment of a claim. Any evidence/facts that could influence the assessment of any claim must be conveyed to the insurer. Employers should be completely aware of their obligations under their policies. 
 
Rehabilitation reports
Workers in receipt of workers compensation may undergo a rehabilitation program in order to expedite their recovery. Relevant documentation is usually maintained by the rehabilitation coordinator or provider and the insurer in joint consultation.
 
Intelligence gathering documents — WHS information particularly relevant to the business
 
A well-managed WHS information resource should be maintained by all employers. This type of resource may largely include a database of internet sites — these should be book-marked and accessible to those who need to know.
 

Working from Home Checklist

The checklist includes a compliance check with the general layout of an employees work space, the supervision requirements for the employee; safety compliance in particular chemical safety, electrical services, ergonomics and first aid/injury management. If you identify hazards in the workplace of an employee who is working from home, you should take steps to ensure that these hazards and the risks associated are minimised.

Working-From-Home-Checklist

Workers Compensation Checklist

Workers-Compensation-Checklist

  • A checklist of basic information to be reported to your workers compensation insurer — some insurers may require different or additional information, however it is useful to have all the information in this checklist on hand at the time that the employer notifies its insurer of the injury.
  • A checklist for creating an injury reporting plan — this is a basic list of considerations for an employer preparing an injury reporting plan, being the plan that should be available to employees so that they know what procedure to follow in the event there has been an injury at the workplace. Each OHS authority and some insurers may have particular requirements for an injury reporting plan — this checklist is a starting point for preparation.
  • A checklist for conducting an internal investigation. If your State’s statutory authority (eg WorkCover in NSW, WorkSafe SA in South Australia, etc) attends the worksite, the inspector will ask what steps were taken after the incident. The employer’s duty of care and the imperative to prevent possible recurrences makes it essential to conduct a prompt internal investigation. This checklist is a basic guide to the steps that should form part of an internal investigation.
  • A checklist for notifying your State’s OHS Statutory Authority. Each State and Territory may have different reporting requirements and timeframes, so the employer should be familiar with its OHS reporting authority and its requirements in relation to notification. This checklist is a basic guide to notifying the employer’s OHS authority, and the powers of workplace inspectors to enter and search the workplace. Union officials may also have a right to enter the workplace to investigate an OHS issue, however, the official must comply with the Fair Work Act right of entry requirements.
  • a checklist for documents which may be requested. This checklist addresses which documents may be requested by workplace inspectors, and what records an employer should keep in relation to the injury and the inspection.
 

Selling a Business

Help I am SELLING a business What you need to know when it comes to the employee’s

 When selling a business, you will probably negotiate hard on things like the price, the plant and equipment being sold, and the settlement and handover period. What you may not have thought about is what will happen to the employees of the business, and what this might cost you down the track.

This can be a serious mistake, impacting not only your hip pocket but the effective transition of the business into new hands. If you are SELLING a business, it is important to consider what impact this transfer will have on current employees. The Fair Work Act 2009 (Cth) determines the obligations and responsibilities the seller or buyer has for current employees.

Does the Purchaser have to take on the existing employees when they Purchase the business?

If you are selling a business with employees, you will need to work out whether the purchaser wants to take them on. This will also depend if you are selling as an ‘asset sale’ or a ‘share sale’.  Whether they need to take on the existing employees will depend on the type of sale. You will work this out with your Business broker and/or lawyer who will be assisting you in the purchase documents and process.

If you SELL the business by way of an asset sale, you and the purchaser can negotiate to leave some employees behind. However, you as the seller will then be liable for redundancy payouts of any of the employees that do not transfer to the purchaser.

Asset Sale — New Company, Same Business

Sometimes, purchasers choose to buy the assets of an existing business, for example, the client and supplier lists, trademarks, and business name. In this case, the purchaser does not take over the existing company. Rather they transfer the assets to their own company. The employees do not transfer automatically over to the purchaser in this situation. The purchaser will not need to rehire them. Instead, they will need to make the employees a new offer of employment if they want to keep them on. If the purchaser chooses not to offer employment to the existing employees, their employment is terminated as a redundancy. In this case, the business selling is liable to pay their redundancy payments. If you sell a business that has existing employees, the purchaser will have to take them on if they purchase via a share sale. They will then be responsible for any of their entitlements, such as accrued leave.

Share Sale — Change of Company Ownership

If you agreed to sell the entity in which the business operates (for example, an existing company), the buyer will automatically receive the employees as well. This is a share sale. While the ownership of shares in the company changes, the company stays the same.  The buyer will then be responsible for employee entitlements, such as leave and wages. The purchaser may be able to negotiate the costs of these entitlements into the purchase price. When buying a company the purchaser will look into whether the employees are being paid the correct wage under an award or enterprise agreement. A company is responsible for ensuring employees are paid correctly and so this is a potential liability for the purchaser so as the seller you need to ensure. When someone is looking to buy a business, they are likely to complete a due diligence process where both their financial and legal team will seek to review information relating to the employees of the business.

To be on the front foot it is suggested that you have.

  • Contracts/ agreements are in place that set down the true employment relationship of the employee (Casual, Perm or Fixed-term)
  • Ensure that they are employed under the correct Modern Award and that you are paying the correct rate for the true employment relationship – you may wish to complete a BOOT (Better overall test) for annualized or increased wage employees to show with certainty they are being paid correctly.

In addition to ensuring the payments are correct, it is also a great idea to have all your other policies and procedures in place. This was a potential purchaser can see they can walk straight in when it comes to the staff and they are not open to any future liabilities or fair Work cases.

  • Have position descriptions in place – even simple ones so that the purchaser can see how everyone functions in the business
  • Ensure that all staff records are up to date and any long service leave requirements are documented
  • Where you have longer-term, casuals check the true relationship to ensure that they have not morphed into a permanent employment relationship and therefore may have a claim to payments for employee entitlements (WorkPac Pty Ltd v Rossato 2020)
If Employee’s Transfer with the business as Seller and soon to be former business owner, you must provide:
  • up to date employee records to the new owner
  • notify the purchaser of any contractual, leave, financial and legal obligations you have with your employees
  • work out with the purchaser what obligations you will be responsible for and what obligations will be transferred to the new owner
  • provide your employees with notice of ending employment with you and let them know that they may need to sign a new contract with the new owner that will be effective from the date of the new ownership. (the Purchaser will also let the employees know)

Transfer of Employees – what you need to know

Generally, where there is a transfer of employment, service with the old employer counts as service with the new employer.

However, there are exceptions to this general principle.

  • When a new employer is not an associated entity of the old employer, they may decide not to recognize a transferring employee’s previous accumulated service for annual leave or redundancy pay under the National Employment Standards (NES) that now apply.
  • Given this, the old employer may be under an obligation to pay the affected employees their accrued entitlements (such as annual leave or redundancy). You will work this out with your lawyer who will be assisting you in the purchase documents and process.

 Can the buyer choose not to recognize prior Service of an Employee?

Provided the two parties are no-associated entities, the buyer in an FW Act transfer of business situation may choose not to acknowledge the continuity of service for the purpose of annual leave and redundancy pay entitlements under the FW Act.

 Not Transferring Employees

During a business purchase and depending on the terms of the contract, the purchaser can elect not to take on some or all of the employees. If the purchaser does not take on certain employees, the seller may need to make their roles redundant. However, redundancy payments are not always be required. For instance,

  • where there are less than 15 employees (subject to limited exceptions).
  • and if the employee is casual or has been engaged for less than 12 continuous months

Important: If this is the case, the purchaser must advise the transferring employee in writing that their prior service will not be recognized before they commence employment with them. The seller of the business must then pay the employee for those entitlements upon termination of the employee’s employment with the seller.

For help when it comes to buying a new Business give us a call for a no obligation chat. You can book this is with our FREE 30-minute general consult 

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Buying a Business

Help I am PURCHASING a business What you need to know when it comes to the employee’s

If you are PURCHASING a business, it is important to consider what impact this transfer will have on the current employees. The Fair Work Act 2009 (Cth) determines the obligations and responsibilities the seller or buyer has for current employees. Forgetting to address the issue of employees and employee entitlements when purchasing a business can cost you precious money. How you choose to deal with employees can have an impact on your legal and financial responsibilities as an employer.

 Do I have to take on the existing employees when I buy a business?

If you are buying a business with employees, you will need to work out whether you want to take them on. Whether you need to take on existing employees when buying a business will depend on the type of sale. You will work this out with your Business broker and/or lawyer who will be assisting you in the purchase documents and process.

If you buy the business by way of an asset sale, you can negotiate to leave some employees behind. However, the seller will then be liable for redundancy payouts, which may increase the business purchase price.

Asset Sale — New Company, Same Business

Sometimes, purchasers choose to buy the assets of an existing business, for example, the client and supplier lists, trademarks and business name. In this case, you do not take over the existing company. Rather you can then transfer the assets to your own company. When buying a business as an asset sale you have three options with existing staff:

  • Not offer employment.
  • Offer employment without acknowledging their previous service to the business (their accrued leave for example).
  • Offer employment and acknowledge their previous service.

The employees do not transfer automatically over to you in this situation. You do not need to rehire them. Instead, you will need to make the employees a new offer of employment if you want to keep them on. If you choose not to offer employment to the existing employees, their employment is terminated as a redundancy. In this case, the business seller is liable to pay their redundancy payments. However, if you offer the employees new employment, but they reject this offer, they will not be eligible for redundancy payments, provided that:

  • the new job would have similar terms and conditions to the old job; and
  • there would have been a transfer of employment if the employee had taken the Job

If you buy a business that has existing employees, you will have to take them on if you purchase via a share sale. You will then be responsible for any of their entitlements, such as accrued leave.

Share Sale — Change of Company Ownership

If you agreed to buy the entity in which the business operates (for example, an existing company), you will automatically receive the employees as well. This is a share sale. While the ownership of shares in the company changes, the company stays the same. You as the buyer will then be responsible for employee entitlements, such as leave and wages. You may be able to negotiate the costs of these entitlements into the purchase price.

When buying a company, it is also important to look into whether the employees are being paid the correct wage under an award or enterprise agreement. The company is responsible for ensuring employees are paid correctly and so this is a potential liability for the purchaser.

As a purchaser, you may wish to check that.

  • Contracts/ agreements are in place that set down the true employment relationship of the employee (Casual, Perm or Fixed term)
  • Ensure that employees are employed under the correct Modern Award and paid the correct rate for the true employment relationship. A purchaser may wish to ask for or complete a BOOT (Better overall test) for annualized or increased wage employees to show with certainty they are being paid correctly.
  • Check also any previous or current compensation claims made by employees as you do not want to get caught out employing someone who may not be physically capable of carrying out their role and you may face legal action if you then terminate their employment because of this.

If Employee’s Transfer with the business the former business must provide you with:

  • up to date employee records
  • notify you of any contractual, leave, financial and legal obligations you have with your employees (including Ling service)
  • work out with you what obligations you’ll be responsible for and what obligations will be transferred to you as the new owner
  • provide your employees with notice of ending employment and let them know that they’ll need to sign a new contract with you as the new owner that will be effective from the date of the new ownership.

The purchaser must then keep the employee records as if they had been made by the purchaser at the time at which they were made by the vendor (as the old employer), which means that they must be stored for at least 7 years.

The new employers (YOU) must give every new employee a copy of the Fair Work Information Statement before, or as soon as possible after, they start their new job.

Transfer of Employees – what you need to know

Generally, where there is a transfer of employment, service with the old employer counts as service with the new employer.

However, there are exceptions to this general principle.

  • When a new employer is not an associated entity of the old employer, they may decide not to recognise a transferring employee’s previous accumulated service for annual leave or redundancy pay under the National Employment Standards (NES) that now apply.
  • Given this, the old employer may be under an obligation to pay the affected employees their accrued entitlements (such as annual leave or redundancy). You will work this out with your lawyer who will be assisting you in the purchase documents and process.
  • If the employee has already received entitlements based on service from the old employer, that service is not counted again in determining entitlements with the new employer. For example, if payment in lieu of notice of termination is given by the old employer, the period of notice for any subsequent termination by the second employer is not calculated based on service with the old employer.

Voluntary Transfer of Employees

A buyer who decides to transfer employees from the original to the new business the original business needs to provide notice to these employees. You need to do this before you finalize the sale of business contract. Once the existing employees agree to the transfer, you should include a clear list of employee entitlements in the sale of business agreement. This ensures that the purchase price takes these entitlements into account.

If taking on employees who will be undertaking the same or near same duties, then you need to recognize their prior service. For example, in terms of accrued personal leave, annual leave and long service leave. You can include these leave entitlements in the sale price adjustments before settlement.

 Can you as the purchaser choose not to recognise prior Service of an Employee?

Provided the two parties are no-associated entities, the buyer in a FW Act transfer of business situation may choose not to acknowledge continuity of service for the purpose of annual leave and redundancy pay entitlements under the FW Act.

Not Transferring Employees

During a business purchase and depending on the terms of the contract, you can elect not to take on some or all of the employees. This can reduce the business expenses for the time being.

If you do not take on certain employees, the seller may need to make their roles redundant. However, redundancy payments are not always be required. For instance,

  • where there are less than 15 employees (subject to limited exceptions).
  • and if the employee is casual or has been engaged for less than 12 continuous months

 Important: If this is the case, the buyer must advise the transferring employee in writing that their prior service will not be recognized before they commence employment with them. The seller of the business must then pay the employee for those entitlements upon termination of the employee’s employment with the seller.

Also, Important: if you are an associated entity with the vendor and are buying the business, you cannot buy without acknowledging existing staff service.

Post-Purchase

Avoid imposing your management and business beliefs too heavily on the employees but instead look for ways to bring them together with the existing systems. The most important thing you need to remember during and after purchase of a business is that it comes first. The old adage of the ‘staff making the company’ leaves you in a position where you may take risks to keep people happy while sacrificing the health of the business. It is truer that your customers and the service they receive from you is the company. With this in mind, you can make decisions about staff with a clear head. If you do need to let people go, do it honestly and quickly. People will respond better to the truth if it is delivered quickly during the transition process of the business.

For help when it comes to buying a new Business give us a call for a no obligation chat. You can book this is with our FREE 30-minute general consult

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