Balancing employee protection with promoting business productivity during organisational restructuring

Abstract

Part 2-8 of the Fair Work Act 2009 (Cth) Fair Work Act contains a number of provisions that regulate the employment implications of an organisational restructure, for example, requiring that employees’ terms and conditions of employment continue to apply even after they are transferred to a new employer as a result of a transaction that can be characterised as a transfer of business.

This thesis seeks to answer the following question: Does Australia's transfer of business regime strike an appropriate balance between providing employees with protection and allowing businesses to restructure their operations in order to maximise productivity, making some comparisons with the German situation?

Drawing on the insights provided by the theories of organisational justice and workplace partnership, I intend to develop a model for the regulation of organisational restructuring which is capable of striking an appropriate balance; a model that ensures both the protection of employees as well as allowing businesses to make productivity improvements. I then proceed to compare the law in Australia to that which operates in Germany to determine whether there are any deficiencies in the Australian rules.