The point of transfer of a contract is a time when the employment relationship is both legally continuous and in a state of flux. During this time many decisions are made about the nature of the ongoing work: where work will take place; to whom workers will report; and what tasks will be undertaken. One focus group of commercial cleaners talked about the choices they were confronted with at the time of transfer of the contract:
I know when we first rolled over to [the new company] we had a choice of going with [the new company] or staying with [the old company] so the supervisor, he says to me, „well, come with us to the [new site], we‟ll look after you over there‟, so thinking I‟ll be looked after, eh, eh, I rolled over [to a new company]. Ivan
Ivan made an election to follow the supervisor to the new company because he felt secure in the knowledge that his supervisor would look after him. Ivan made a decision to go with the new company even though many of his colleagues chose to stay with the old cleaning company. However, for this participant everything changed at the interview with his new employer:
They asked me what hours did I work for [the old company], what days off do I have. Then they told me that when we rolled over to [the new company] our hours would
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be reduced. I got no say in that myself. So they said „you‟re going to be working thirty seven-and-a-half hours.‟ I can‟t tell them I don‟t want to work 37, I want to work 40, I can‟t tell them that, so I just roll over and, even though I am not happy, what can I do? They have promised us a shoe allowance – shoes (he looks at his colleague) – you know those shoes? And now we‟re not getting them -
The new job was going to entail changes to the number of hours Ivan would work, the benefits he would receive and the new roster being implemented. Ivan worked nearly 60 hours a week for his employer across six days a week and this was dropped to 37.5 hours across five days with the new contractor. Ivan had worked out he could sustain a drop to 40 hours a week and still pay his mortgage but no further. He was asked what difference the adjustment in hours made to his life:
A big difference to me - I have a mortgage to pay and that‟s why I work all these extra hours and my mortgage is not paid off „til I am 65. I am now 53 years old so I have a long way to go „til I am 65….I‟ve always been a worker all my life – most of the money I get goes toward my mortgage, it comes into my bank account and every week the bank checks to see if there‟s enough money for the mortgage and if there‟s not enough money for the mortgage they will send a reminder out saying „you didn‟t pay the amount of $250 a week – can you make it by next week?‟
The consequence for Ivan was that he would have to find another cleaning job to make up for the loss of hours so that he could pay his mortgage. Ivan believed the company could eventually provide him with the hours he needed but there was no guarantee and he was not in a position to wait:
I have been advised to go to another cleaning company to work extra hours - to build up the time I have lost with [the company], which will be classed as secondary employment. That‟s the only way – until [the company] gives me extra hours - we
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don‟t know how long before [they] might give me extra hours so from here (referring to the focus group) I‟ll be going out to look for part time work.
In a one-on-one interview, Ivan was encouraged by his supervisor to transfer to the new company but after he made an election he was told the hours would be reduced.
A large group of cleaners on Ivan‟s worksite chose not to change company because they were told by their employer that they would be better off financially, if they remained. He describes what happened:
[The company] promised them $13.00 an hour. They thought they could get $13.00 an hour at the same job they were doing, so they all decided to roll over [with the same contractor]…I was the only one that went to the [new contractor] - so when the workers rolled over they thought they were getting a good deal until they got their first pay. When they got their first pay, $12.55 - what happened to their $13.00? Nothing – so they all had to work under $12.55 – they were thinking they would get $13.00. They tricked us to lure us over to save them hiring more cleaners.
The legislation entitles an employee to bargain alternative arrangements at the time of transfer and, therefore, to choose not to transfer to the new employer. Any such agreement must be recorded in writing (s. 69H (3)). The workers on Ivan‟s site negotiated away their right to transfer because they were offered a pay rise. Subsequently they left the company, without jobs to go to because, in Ivan‟s words, “they were tricked”.