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Labour Relations Act, 1995 (Act No. 66 of 1995)

Notices

National Bargaining Council for the Electrical Industry of South Africa

Extension to Non-parties of the Main Collective Agreement

Part l: Scope of Application, Definitions and General Terms and Conditions of Employment

Clause 28 - Transfer of Contract of Employment

 

(1) A contract of employment may not be transferred from one employer (referred to as "the old employer") to another employer (referred to as "the new employer") without the employee's consent, unless—
(a) the whole or any part of a business, trade or undertaking is transferred by the old employer as a going concern, or
(b) the whole or any part of a business, trade or undertaking is transferred as a going concern:
(i) if the old employer is insolvent and being wound up or is being sequestrated, or
(ii) because a scheme of arrangement or compromise is being entered into to avoid winding-up or sequestration for reasons of insolvency.

 

(2)

(a) If a business, trade or undertaking is transferred in the circumstances referred to in sub-clause (1)(a) above unless otherwise agreed, all the rights and obligations between the old employer and each employee at the time of the transfer shall continue to be in force as if they had been rights and obligations between the new employer and each employee and anything done before the transfer by or in relation to the old employer shall be considered to have been done by or in relation to the new employer.
(b) If a business is transferred in the circumstances envisaged by sub-clause (1)(b) above, unless otherwise agreed, the contracts of all employees that were in existence immediately before the old employer's winding-up or sequestration shall transfer automatically to the new employer, but all the rights and obligations between the old employer and each employee at the time of the transfer shall remain rights and obligations between the old employer and each employee, and anything done before the transfer by the old employer in respect of each employee shall be considered to have been done by the old employer.

 

(3) An agreement contemplated in sub-clause (2) above shall be concluded with the appropriate person or body referred to in Section 189(1) of the Act.

 

(4) A transfer referred to in sub-clause (1) shall not interrupt the employee's continuity of employment, which shall continue with the new employer as if with the old employer.

 

(5) The provisions of this clause shall not transfer or otherwise affect the liability of any person to be prosecuted for, convicted of, and sentenced for any offence.