Are you a cleaner or food catering worker? Are you an orderly, laundry worker or caretaker?

You may be able to keep doing the work you do for another employer - even if the business you work for is sold or loses the contract for the work you do

If you could be affected by this type of change, find out more about your rights. Contact your union or the Department of Labour through our website www.dol.govt.nz or call 0800 20 90 20 during business hours.

Who has these extra rights at work?

• Employees doing cleaning or food catering work, in any workplace.
• Employees doing laundry work for hospitals, rest homes or educational institutions.
• Employees doing orderly work for hospitals and rest homes.
• Employees doing caretaking work for schools, universities, polytechnics and other educational institutions.

When do they apply?

•        When the company you work for is sold

• When the company you work for loses the contract for the work you do to another business

•        When the work you do is contracted out

•        When the company you work for loses the contract for the work you do because the customer wants to do it themselves.

What are your rights?

In these circumstances:

• You have the right to transfer to the new employer on the same terms and conditions of employment you have with your current employer.
• You can choose to stay with your current employer.
• You must be given the name of the business that will be doing the work and enough information about the changes so you can decide whether to transfer. You must be given this information before the changes take place.
• You must be given time to decide whether you want to transfer to the business that will be doing the work and be told who you must tell about that decision.

These rights don’t stop you talking with your current employer about alternative employment they may have to offer you.

What information must you be given?

The information you must be given includes:

• the type of change and its scope. For example, whether your work is being contracted out, or the business is being sold, and whether this will affect all of your work or only some of it
• the date when the change is going to happen
• the date by which you need to decide whether to transfer to the new employer
• the name of the company taking over the work from your employer, and
• details of who you must contact about whether or not you want to transfer, and how you must tell them of your choice. For example, whether it’s by fax, email or letter.

Your employer must give you time to understand and consider the information and to seek advice from your union or an advisor.

What happens if I transfer?

You continue to receive the wages, leave and conditions that apply in your job, including any arrangements regarding hours of work. Your new employer can only change your conditions if you agree.

What about my sick leave and holiday entitlements?

If you transfer to a new employer, you keep any sick leave, annual leave and alternative holidays owed by your current employer. Your current employer cannot pay you out for any benefits you are owed, like holiday pay, before you transfer to the new employer.

What about my employment agreement?

If you transfer, you keep your current employment agreement. It becomes the employment agreement between you and your new employer. When it comes to calculating your right to benefits mentioned in your agreement, you are treated as if your employment hasn’t been broken. So if you transfer, you keep any progress you have made towards being entitled to benefits such as long service leave, service payments or parental leave.

What about my collective agreement and union membership?

If you are covered by a collective employment agreement, your new employer becomes part of the collective agreement. You continue to have the right to belong to your union.

When your collective agreement is renegotiated, you and your union can decide whether or not you wish to continue to be part of the collective agreement. You need to talk to your union about this.

What if I leave the job after I transfer?

You receive holiday pay and other payments as if you had always been employed by the new employer.

What if I transfer and the new employer makes me redundant soon after?

Your new employer must follow a fair process before deciding to make you redundant. This process includes talking with you (and your union, if you are a union member) about alternatives to redundancy.

If you are made redundant, you are entitled to any redundancy benefits in your employment agreement, calculated as if you had always worked for the new employer.

If the redundancy clause in your employment agreement does not deal with redundancy entitlements in a restructuring, your employer must negotiate with you about redundancy entitlements. If you and your employer can’t reach an agreement, you can ask the Employment Relations Authority to decide them for you.

What if I don’t want to work for the new employer?

You can choose not to transfer to the new employer. If you don’t want to transfer, talk to your current employer about options for finding you other work in their business or any other options. If, after talking through all the possibilities, there isn’t other work you can do, or you don’t want to do any alternative work offered, you may be made redundant by your current employer. If this happens you may be entitled to redundancy benefits if these are provided for in your employment agreement and if the agreement says benefits will be provided in this type of redundancy situation.

What happens if I work on two or more worksites for my current employer, but only one worksite is changing?

If your current employer loses the contract for the work you do at one worksite, but there is no change at the other places where you work:

• you can choose whether or not to transfer to the new employer taking over part of your work
• if you transfer you will have two employers
• your remaining work with your current employer continues unchanged, regardless of whether you decide to transfer
• neither employer can require you to stop working for the other employer.

What if I have a fixed-term employment agreement?

If the term of your fixed-term employment agreement means that your employment would end at the same time as a restructuring, you may still have the right to transfer to the new employer. This will happen if the reason for the fixed-term agreement is linked to the end of a contract for service or because of an anticipated restructuring.

If the work you do is contracted out and you transfer to the new employer, the fixed-term of your employment agreement with the new employer will mirror the length of the contract awarded to your new employer.  This will also apply if your employer loses the contract for the work you do to another business.

If your new employer is taking over the work on a permanent basis (because a business was sold or if work was taken in-house) you become a permanent employee.

If the reason for your agreement having a fixed-term isn’t linked to a contract or restructuring you may still choose to transfer. However, the fixed-term will expire on the date or in the situation described in the fixed-term agreement.

What is a food catering service employee?

There is no legal definition of this term. Who is considered to be a food catering service employee (and entitled to the extra employment protection) will depend on the facts of each individual situation.

The intent is to provide protection to employees whose employment conditions are particularly at risk of being undermined when contracts change hands as a result of restructurings.

For example, an employee of a food catering company who prepares the food for an airport cafeteria is likely to be covered. This means that if the airport decides to change the provider that runs its cafeteria, employees of the provider whose work is affected should have the right to choose to transfer.

For more information on who is a food catering service employee contact the Department of Labour via our website www.dol.govt.nz or call 0800 20 90 20 during business hours.

What help can I get?

These are legal rights and your employer can’t require you to give them up. If a change is happening in your workplace and you believe it is one of the changes referred to in this factsheet, you can get help to:

• resolve any issues that arise with your employer
• understand your employment agreement
• find out your rights and what benefits you should get, and
• in some situations, deal with problems that arise after you have transferred to your new employer.

Where can I get help?

• contact your union
• contact the Department of Labour through our website www.dol.govt.nz or call 0800 20 90 20 during business hours.

This factsheet is a guide only and may not be accurate for all situations. It should not be used as a substitute for legislation or for legal or other expert advice.