It is certainly possible for there to be a transfer of employment whereby an agency or labour hire employee becomes a temporary employee of the host business client. This may be done at the request of the host business client, at the insistence of the labour hire employer or as a natural incident of the working arrangement. However, before a transfer of employment can occur, certain aspects of the transfer must be considered.
There can be no transfer without consent.
A transfer of employment cannot occur, unless and until the employee either expressly or impliedly consents to the change. Thus, at the outset it is important to consult with the employee, make them aware of the proposed change and obtain their written consent to the same. Towards this end, it is prudent to draft a temporary and or permanent transfer agreement between the business host client, employee and your business. Such an agreement will take the guesswork out of the transfer by clearly defining the scope of the transfer, as well as the rights and responsibilities of all involved.
What degree of control, if any, do you wish to maintain over the worker?
In undertaking a transfer of employment you must define what degree of control, if any, you wish to continue to exert over the transferred employee. You must decide whether you will play an active role in the day-to-day activities of the employee and if so to what degree. Alternatively, you may simply wish to act as a conduit for the business host client and pay the employees wages and deal with the ongoing costs, such as workers compensation and insurance.
Who bears the liability for the transferred employee?
Under the law, labour hire companies have a non-delegable duty of care to ensure that:
- the host workplace is safe,
- the host employer has in place appropriate safety systems,
- the tasks for which the employee is hired are clearly defined, and that
- the worker is provided with safe plant and equipment.
Accordingly, when undertaking a transfer of employment it is paramount to ensure that you also transfer liability for the employee to the host business. The degree of liability transferred is up to you and it is possible for you and the host business client to share responsibility for the worker. The degree of liability maintained will depend upon your particular circumstances and preferences.
Whilst the transfer of an employee from a labour hire company to a host business client is possible. It brings with it certain considerations that must be addressed before a smooth and effective transfer can take place. Whether you are seeking to transfer an employee permanently or under a more temporary arrangement, our team of LegalVision employment lawyers would be happy to assist you with any questions or queries that you may have. Contact us on 1300 544 755 for more information.
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