ASC's outsourcing could affect NSOs

Sport & Events eBulletin - 23 April 2013

Summary

As part of the Australian Sports Commission's (ASC) Winning Edge Strategy, the ASC is proposing to "outsource" certain coaching and high performance roles to National Sporting Organisations (NSOs) that it had previously "insourced" to itself. It is likely that this proposal will affect most, if not all, NSOs who receive ASC high performance funding.

This outsourcing has serious employment law implications for the ASC and the separate NSOs. In this eBulletin we set out a brief overview of these implications and what they will mean for NSOs.

 

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Employment law implications of the move from ASC to NSO

The move of the employees from the ASC to NSOs is likely to constitute a "transfer of business" under the Fair Work Act 2009 (Cth) (FW Act). This would mean that the Australian Sports Commission Enterprise Agreement 2011 – 2014 (ASC Agreement) would then transfer to the NSOs and would apply to the employment of the transferring employees.

The ASC and the NSOs may also be considered "associated entities" under corporations law. Accordingly, employees' annual and personal leave balances should transfer with them when they transfer from the ASC to the relevant NSOs.

 

What this will mean for NSOs

NSOs can apply to the Fair Work Commission (FWC) for an order that the ASC Agreement does not transfer with the employees. However, there is no guarantee that such an order would be granted. To succeed with this kind of application, the relevant sporting body would likely have to give certain undertakings to the FWC regarding the affected employees' ongoing entitlements. 

If the ASC and the NSOs are "associated entities", the NSOs will have to allow the transfer of employees' annual and personal leave balances. However, in some circumstances, the NSOs may not be legally required to recognise the transferring employees' service for the purposes of long service leave.

If you are thinking of insourcing roles from the ASC, we encourage you to seek legal advice about the employment ramifications of this transfer.  

Authors
Catherine Berry | Senior Associate, Workplace Relations & Safety
Daniel Proietto | Partner, Workplace Relations & Safety 
 

Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.

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