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TASMANIA
__________
RAIL COMPANY BILL 2009
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Purposes of Act
4. Interpretation
PART 2 COMPANY
Division 1 Formation and status of Company
5. Formation of Company
6. Principal objectives of Company
7. Constitution of Company
8. Members of Company
9. Shares
10. Consideration for further shares
11. Status of Company
Division 2 Financial affairs of Company and subsidiary
12. Audit
13. Borrowing
14. Guarantee or indemnity
15. Guarantee fees
16. Tax equivalents
[Bill 55]-III
17. Superannuation contributions
18. Effect of Financial Agreement Act 1994
Division 3 Duties of members, Board and Company
19. Directors of Company
20. Members' statement of expectations
21. Corporate plan of Company
22. Accounts and report of Company
Division 4 Non-commercial activities
23. Non-commercial activities
PART 3 ACQUISITION AND OPERATION OF RAIL BUSINESSES
IN TASMANIA
24. Company to act as Crown nominee under Business Sale
Agreement
25. Company may operate rail business on Emu Bay Railway
26. Exemptions relating to operation of rail business, &c.
PART 4 TRANSFER OF RAIL INFRASTRUCTURE AND RELATED
ASSETS, &C., AND EMPLOYEES TO OR FROM
COMPANY
27. Transfer of rail infrastructure and related assets, &c., to or from
Company
28. Transitional provisions on transfer of rail infrastructure and
related assets, &c.
29. Removing doubt relating to transfer
30. Transfer of employees
31. Superannuation for certain employees
32. Long service leave for certain employees
PART 5 SALE OF COMPANY AND SUBSIDIARY
33. Sale of Company
34. Direction to facilitate sale
35. Superannuation for certain employees
36. Long service leave for certain employees
37. Proceeds of sale of Company
2
PART 6 MISCELLANEOUS
38. Protection for acts done under this Act
39. Displacement of Corporations legislation
40. Non-application of certain Acts
41. Delegation by Minister
42. Regulations
43. Administration of Act
44. Repeals
45. Consequential amendments
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
3
4
RAIL COMPANY BILL 2009
(Brought in by the Minister for Infrastructure, the Honourable
Graeme Lindsay Sturges)
A BILL FOR
An Act to provide for the establishment of a State-owned
company under the Corporations Act for the purpose of
acquiring, owning and operating a rail business in
Tasmania, to provide for the sale of that company and for
related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Rail Company Act
2009.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
THIS BILL IS COGNATE WITH THE EMU BAY RAILWAY (OPERATION AND ACQUISITION)
BILL 2009 AND THE CONSOLIDATED FUND APPROPRIATION (SUPPLEMENTARY
APPROPRIATION FOR 2009-2010) BILL 2009
[Bill 55] 5
Rail Company Act 2009
Act No. of
s. 3 Part 1 Preliminary
3. Purposes of Act
The purposes of this Act are to
(a) provide for the establishment and
registration under the Corporations Act
of a State-owned company to acquire,
own and operate a rail business in
Tasmania; and
(b) provide for that company to act as the
nominee of the Crown under the
Business Sale Agreement; and
(c) provide for the transfer to that company
from the Crown, or to the Crown from
that company, of rail infrastructure and
related assets, liabilities and contracts;
and
(d) provide for the transfer to that company
from the Crown of State Service
employees and State Service officers;
and
(e) provide for the sale of that company, or
part of that company, by the sale of the
shares in the company or the assets of the
company.
4. Interpretation
In this Act, unless the contrary intention
appears
6
Rail Company Act 2009
Act No. of
Part 1 Preliminary s. 4
"asset" includes any, and any part of any,
property, business, operation and right;
"Board" means the Board of Directors of the
Company;
"Business Sale Agreement" means the
agreement, for the sale and purchase of
rail infrastructure and related assets and
rail businesses, entered into on
4 September 2009
(a) by Pacific National Pty Ltd (ACN
098 060 550), Pacific National
(Tasmania) Pty Limited (ACN
079 371 305), PN Tas
(Operations) Pty Limited (ACN
078 295 468) and PN Tas
(Services) Pty Limited (ACN
078 906 519), together as the
seller; and
(b) by the Crown, as the buyer;
"Company" means a company formed under
section 5;
"constitution" means the constitution of the
Company;
"contract" means
(a) an agreement, arrangement,
undertaking, lease, licence,
warranty or other contract; or
7
Rail Company Act 2009
Act No. of
s. 4 Part 1 Preliminary
(b) part of an agreement,
arrangement, undertaking, lease,
licence, warranty or other
contract;
"director" means a director of the Company;
"document" includes an instrument and part
of a document;
"legal or other proceeding" includes
arbitration proceedings and mediation
proceedings;
"liability" includes any, or any part of any,
liability, duty and obligation, whether
actual, contingent or prospective;
"member", in respect of the Company, means
a member referred to in section 8;
"principal objectives" means the principal
objectives of the Company specified in
section 6;
"property" means
(a) any legal or equitable estate or
interest (whether present or future
and whether vested or contingent)
in real or personal property; and
(b) money, documents and securities;
and
(c) shares in a subsidiary of the
Company; and
8
Rail Company Act 2009
Act No. of
Part 1 Preliminary s. 4
(d) any other rights and property;
"rail business" means the business of
(a) rail haulage on a railway in
Tasmania and associated
services, including (without
limitation) capital works,
maintenance, storage, loading,
train control and safety functions,
carried on in Tasmania; or
(b) owning a railway in Tasmania; or
(c) administering, managing,
controlling, controlling access to,
controlling operations on,
maintaining or developing a
railway in Tasmania;
"rail infrastructure and related assets"
means
(a) rail infrastructure within the
meaning of the Rail
Infrastructure Act 2007; or
(b) rolling stock within the meaning
of the Rail Safety Act 1997; or
(c) any other asset used, or that is
intended for use or has been used,
in connection with the operation
of rail businesses in Tasmania; or
9
Rail Company Act 2009
Act No. of
s. 4 Part 1 Preliminary
(d) any other asset purchased by the
Crown or a nominee under the
Business Sale Agreement;
"railway" includes the track of the railway,
the land corridor along which the track of
the railway is laid and all of the attendant
rail infrastructure and related assets, but
does not include the railways, or railways
of a kind, specified in Part 2 of Schedule
1 to the Rail Infrastructure Act 2007;
"regulations" means regulations made under
section 42;
"right" includes any right, power, privilege
and immunity, whether actual, contingent
or prospective;
"State tax" means any of the following if
imposed by any Act or law of Tasmania:
(a) a fee, including an application fee
and registration fee;
(b) a tax, including a duty;
(c) a charge;
"subsidiary" has the same meaning as in the
Corporations Act;
"transfer day" means the day on which a
transfer notice, or the relevant part of a
transfer notice, takes effect;
"transfer notice" means
10
Rail Company Act 2009
Act No. of
Part 1 Preliminary s. 4
(a) a notice made under
subsection (2) or (3) of
section 27, or both of those
subsections; or
(b) a part of such a notice;
"transfer recipient", in relation to a transfer
notice or transfer day, means
(a) the Company if the relevant
transfer notice transfers any rail
infrastructure and related assets,
liabilities or contract to the
Company; or
(b) the Crown if the relevant transfer
notice transfers any rail
infrastructure and related assets,
liabilities or contract to the
Crown;
"transferor", in relation to a transfer notice
or transfer day, means
(a) the Crown if the relevant transfer
notice transfers any rail
infrastructure and related assets,
liabilities or contract to the
Company; or
(b) the Company if the relevant
transfer notice transfers any rail
infrastructure and related assets,
liabilities or contract to the
Crown;
11
Rail Company Act 2009
Act No. of
s. 4 Part 1 Preliminary
"transferred employee" means a person who
becomes the employee of the Company
on the transfer day by the operation of
section 30(4).
12
Rail Company Act 2009
Act No. of
Part 2 Company s. 5
PART 2 COMPANY
Division 1 Formation and status of Company
5. Formation of Company
(1) The Minister may form, or participate in the
formation of, a company limited by shares that is
to be incorporated under the Corporations Act.
(2) The purpose of the Company is to acquire, own
and operate a rail business in Tasmania.
6. Principal objectives of Company
The principal objectives of the Company are
(a) to operate a rail business in Tasmania
effectively and efficiently; and
(b) to operate its activities in accordance
with sound commercial practice; and
(c) to maximise its sustainable return to its
members.
7. Constitution of Company
(1) The constitution of the Company is to include
the principal objectives of the Company.
(2) The provisions of the constitution of the
Company are to be consistent with this Act.
13
Rail Company Act 2009
Act No. of
s. 8 Part 2 Company
8. Members of Company
(1) The members of the Company are to be 2
persons of whom
(a) one is the Minister; and
(b) one is the Treasurer.
(2) If at any time the one person is both the Minister
and the Treasurer, the members of the Company
are 2 persons of whom
(a) one is the Minister; and
(b) one is another Minister determined by
the Minister to be a member of the
Company.
9. Shares
(1) Shares in the Company issued to its members are
held by the members in trust for the Crown.
(2) A member of the Company who holds shares in
trust for the Crown is not to acquire shares in the
Company for his or her own benefit.
(3) Any shares acquired in the Company in
contravention of subsection (2) are taken to be
held in trust for the Crown but the Crown is not
liable to meet the cost of that acquisition.
14
Rail Company Act 2009
Act No. of
Part 2 Company s. 10
10. Consideration for further shares
The consideration for any further shares issued
to the members of the Company after the
commencement of this section is to be any one
or more of the following as agreed between the
Company and its members:
(a) any money provided by Parliament for
that purpose;
(b) any rail infrastructure and related assets
vested in the Company by the operation
of section 27(7);
(c) any other consideration as so agreed.
11. Status of Company
(1) Unless this or any other Act expressly provides
otherwise, the Company or a subsidiary of the
Company
(a) is not, and does not represent, the Crown;
and
(b) is not exempt from any rates, tax, duty or
other impost under any law merely
because the Crown has beneficial
ownership of shares in it.
(2) The Crown is not liable for any liability or
obligation of the Company or subsidiary of the
Company unless the Treasurer gives a guarantee
or indemnity under section 14 in relation to that
liability or obligation.
15
Rail Company Act 2009
Act No. of
s. 12 Part 2 Company
Division 2 Financial affairs of Company and subsidiary
12. Audit
The Auditor-General is to act as the auditor for
the Company and a subsidiary of the Company.
13. Borrowing
The Company, and a subsidiary of the Company,
are not to borrow from any person other than the
Tasmanian Public Finance Corporation except as
otherwise approved by the Treasurer in writing.
14. Guarantee or indemnity
(1) On the written request of the Company or a
subsidiary of the Company, the Treasurer, in
writing, may guarantee, give an indemnity in
relation to, or guarantee and give an indemnity
in relation to
(a) the repayment of any money lent or
agreed to be lent to the Company or
subsidiary; or
(b) the performance of an obligation
undertaken by the Company or
subsidiary or which the Company or
subsidiary has agreed to undertake
(whether that obligation is monetary or
otherwise).
(2) A guarantee or an indemnity
16
Rail Company Act 2009
Act No. of
Part 2 Company s. 15
(a) may include a guarantee of, or an
indemnity relating to, any interest and
other charges payable in respect of
money lent or agreed to be lent or in
respect of or arising from an obligation
undertaken or agreed to be undertaken;
and
(b) is subject to any conditions determined
by the Treasurer and specified in the
guarantee or indemnity.
(3) The Treasurer is to make any payment required
under or arising from a guarantee or indemnity
out of money provided by Parliament for the
purpose.
(4) This section has effect regardless of whether the
loan or obligation was undertaken, agreed to be
undertaken or required to be repaid or performed
in Tasmania or elsewhere.
15. Guarantee fees
(1) Division 1 of Part 11 of the Government
Business Enterprises Act 1995 applies in relation
to the Company and a subsidiary of the
Company as if
(a) the Company were a Government
Business Enterprise specified in
Schedule 3 to that Act; and
(b) the subsidiary were a subsidiary within
the meaning of that Act.
17
Rail Company Act 2009
Act No. of
s. 16 Part 2 Company
(2) Any Treasurer's Instructions issued under the
Government Business Enterprises Act 1995
providing for guidelines in respect of
(a) the determination, calculation and
payment of guarantee fees; or
(b) any other matter relating to guarantee
fees
apply to the Company and a subsidiary of the
Company as if both the Company and subsidiary
were Government Business Enterprises under
that Act.
16. Tax equivalents
(1) The provisions of Part 10 of the Government
Business Enterprises Act 1995 apply in relation
to the Company and a subsidiary of the
Company as if
(a) the Company were a Government
Business Enterprise specified in
Schedule 2 to that Act; and
(b) the subsidiary were a subsidiary within
the meaning of that Act.
(2) Any Treasurer's Instructions issued under the
Government Business Enterprises Act 1995
providing for guidelines in respect of
(a) the determination, calculation and
payment of income tax equivalents; or
18
Rail Company Act 2009
Act No. of
Part 2 Company s. 17
(b) any other matter relating to income tax
equivalents
apply to the Company and a subsidiary of the
Company as if the Company were a Government
Business Enterprise under that Act and the
subsidiary were a subsidiary within the meaning
of that Act.
17. Superannuation contributions
(1) The Company, or a subsidiary of the Company,
is not to establish a superannuation scheme but
may make contributions to one or more
superannuation schemes that comply with the
law of the Commonwealth relating to
superannuation.
(2) A contribution by the Company or a subsidiary
of the Company to a superannuation scheme in
respect of any of its employees is not to exceed
the rate specified in section 6(7) of the Public
Sector Superannuation Reform Act 1999.
18. Effect of Financial Agreement Act 1994
If, under section 5(1) of the Financial Agreement
Act 1994, the Treasurer requires the Company or
a subsidiary of the Company to do or refrain
from doing anything for the purpose of
implementing the Agreement, within the
meaning of that Act, the Company or subsidiary
is to comply with that requirement.
19
Rail Company Act 2009
Act No. of
s. 19 Part 2 Company
Division 3 Duties of members, Board and Company
19. Directors of Company
(1) The members of the Company are to ensure that
it has a Board of Directors who have the
experience and skills necessary to enable the
Company to achieve its objectives.
(2) The members of the Company are to appoint the
Board in accordance with the constitution.
20. Members' statement of expectations
(1) As soon as practicable after the day on which the
Company is incorporated, the members are to
provide the Board with a statement of
expectations.
(2) The statement of expectations is to specify
(a) the strategic priorities of the Company;
and
(b) the policy expectations of the members
for the performance of the Company and
its subsidiaries.
(3) The members may at any time at their own
discretion, or on the application of the Board
(a) amend the statement of expectations; or
(b) revoke the statement of expectations and
substitute another statement of
expectations.
20
Rail Company Act 2009
Act No. of
Part 2 Company s. 21
(4) Before or while preparing a statement of
expectations or an amendment to a statement of
expectations, the members are to consult with
the Board.
21. Corporate plan of Company
(1) The Board is to prepare a corporate plan each
financial year and submit it to the members.
(2) The corporate plan is to be prepared in the
context of the statement of expectations provided
to the Board under section 20.
(3) The Company is to comply with the corporate
plan.
22. Accounts and report of Company
(1) The Board is to provide the members with a
copy of each of the following documents:
(a) the constitution of the Company, the
constitution of each of the Company's
subsidiaries and any amendments to any
of those constitutions;
(b) the annual financial report, directors'
report and auditor's report for the
Company.
(2) The Minister is to cause to be laid before each
House of Parliament each copy provided to him
21
Rail Company Act 2009
Act No. of
s. 23 Part 2 Company
or her under subsection (1) within 7 sitting-days
after receiving it.
Division 4 Non-commercial activities
23. Non-commercial activities
(1) The members may direct the Company to do one
or more of the following:
(a) to perform an activity that the members
consider to be in the public interest but
that may cause the Company to suffer
financial detriment;
(b) to cease to perform such an activity;
(c) to cease to perform an activity that the
Company is otherwise entitled to
perform if the members consider that the
activity is not in the public interest.
(2) A direction is to be in writing provided to the
Company.
(3) The Company is to comply with a direction.
(4) If the Company satisfies the members that it has,
or will, suffer financial detriment as a result of
complying with a direction, the Company is
entitled to compensation or payment for
compliance with the direction in the amount
determined by the Treasurer.
(5) A reference in this section to suffering financial
detriment includes a reference to incurring net
22
Rail Company Act 2009
Act No. of
Part 2 Company s. 23
costs that are greater than would have been
incurred if the Company had not complied with
the direction.
23
Rail Company Act 2009
Act No. of
s. 24 Part 3 Acquisition and Operation of Rail Businesses in Tasmania
PART 3 ACQUISITION AND OPERATION OF RAIL
BUSINESSES IN TASMANIA
24. Company to act as Crown nominee under Business
Sale Agreement
(1) If the Crown appoints the Company as its
nominee under the Business Sale Agreement, the
Company is to act as that nominee under that
Agreement.
(2) State tax is not payable in respect of the
Business Sale Agreement or any document
prepared to give effect to a purchase by the
Company under the Business Sale Agreement.
25. Company may operate rail business on Emu Bay
Railway
(1) In this section
"Agreement day" means 4 September 2009,
being the day on which the Business Sale
Agreement was made;
"authorised rail operator" means a
subsidiary of the Company or another
person authorised by the Company to
operate a rail business on the Emu Bay
Railway;
"Emu Bay Railway" means
24
Rail Company Act 2009
Act No. of
Part 3 Acquisition and Operation of Rail Businesses in Tasmania s. 25
(a) the railway in Tasmania known
as the Emu Bay Railway, and
also known as the Melba Line,
extending from the port at Emu
Bay in the City of Burnie to
Melba Flats, including the
Handling Facilities within the
meaning of the Business Sale
Agreement; and
(b) the railway known as the Hellyer
Spur which runs from the Hellyer
Mine site to the eastern boundary
of the railway referred to in
paragraph (a) at Moory Junction;
"railway access contract" means a contract
entered into by the owner or occupier of
the relevant rail corridor in respect of the
use of, or access to, the relevant rail
corridor;
"relevant rail corridor" means a part of the
rail corridor of the Emu Bay Railway that
is not owned by the Company, an
authorised rail operator or the Crown.
(2) The Company and an authorised rail operator are
authorised to operate a rail business on a relevant
rail corridor.
(3) Subsection (2) operates to extinguish any right
of an owner or occupier of the relevant rail
corridor to require the Company or an authorised
rail operator to pay or provide any fee or other
consideration in respect of its use of, or access
25
Rail Company Act 2009
Act No. of
s. 26 Part 3 Acquisition and Operation of Rail Businesses in Tasmania
to, the rail corridor if PN Tas (Operations) Pty
Limited (ACN 078 295 468) was not paying or
providing such a fee or other consideration on
the Agreement day in accordance with a railway
access contract.
(4) If on the Agreement day the owner or occupier
of a relevant rail corridor, in accordance with a
railway access contract, was entitled to receive a
fee or other consideration in respect of the use of
or access to the relevant rail corridor, that owner
or occupier is entitled after that day to require
the payment or provision of a reasonable fee or
other reasonable consideration in respect of the
use of, or access to, the relevant rail corridor by
the Company or an authorised rail operator.
(5) Nothing in subsection (3) or (4) authorises the
owner or occupier of a relevant rail corridor to
prevent the use of, or access, to the relevant rail
corridor by the Company or an authorised rail
operator.
26. Exemptions relating to operation of rail business,
&c.
(1) The regulations may exempt the Company, in
relation to its operation of a rail business in
Tasmania, from an Act, or a provision of an Act,
that relates to railways or the ownership or
operation of railways.
(2) An exemption in the regulations prescribed
under subsection (1) is subject to any prescribed
conditions.
26
Rail Company Act 2009
Act No. of
Part 3 Acquisition and Operation of Rail Businesses in Tasmania s. 26
(3) A regulation referred to in subsection (1) may
take effect on the day on which this Act
commences or a later day as specified in the
regulations, whether the day so specified is
before, on or after the day on which the
regulations are made.
27
Rail Company Act 2009
Act No. of
s. 27 Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and
Employees to or from Company
PART 4 TRANSFER OF RAIL INFRASTRUCTURE
AND RELATED ASSETS, &C., AND EMPLOYEES TO
OR FROM COMPANY
27. Transfer of rail infrastructure and related assets,
&c., to or from Company
(1) In this section
"specified" means specified in a transfer
notice.
(2) The Minister, by notice published in the Gazette,
may transfer to the Company such
(a) rail infrastructure and related assets
owned by the Crown; and
(b) liabilities of the Crown; and
(c) contracts to which the Crown is a party,
other than contracts of employment
as are specified in the notice.
(3) The Minister, by notice published in the Gazette,
may transfer to the Crown such
(a) rail infrastructure and related assets
owned by the Company; and
(b) liabilities of the Company; and
(c) contracts to which the Company is a
party, other than contracts of
employment
28
Rail Company Act 2009
Act No. of
Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and s. 27
Employees to or from Company
as are specified in the notice.
(4) A transfer notice under subsection (2) may be
combined with a transfer notice under
subsection (3).
(5) A transfer notice may
(a) specify conditions including, without
limitation
(i) conditions relating to the transfer
of the rail infrastructure and
related assets, liabilities and
contracts; and
(ii) conditions relating to the
payment of consideration, if any
is payable; and
(b) provide for any matter that is incidental
to the transfer of the rail infrastructure
and related assets, liabilities and
contracts.
(6) A transfer notice takes effect on the specified
day or days, whether that day is before, on or
after the day on which the transfer notice is
published in the Gazette.
(7) On the transfer day
(a) the specified rail infrastructure and
related assets vest in the transfer
recipient, in accordance with the transfer
notice, without the need for any further
conveyance, transfer, assignment or
29
Rail Company Act 2009
Act No. of
s. 27 Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and
Employees to or from Company
assurance but subject to any conditions
specified in the transfer notice; and
(b) the specified liabilities become the
liabilities of the transfer recipient, in
accordance with the transfer notice,
without the need for any further
conveyance, transfer, assignment or
assurance but subject to any conditions
specified in the transfer notice; and
(c) the transferor ceases to be a party to the
specified contracts unless the transfer
notice provides otherwise or except to
the extent specified in the transfer notice.
(8) On and after the transfer day
(a) a specified contract is taken to have been
made by the transfer recipient; and
(b) a reference to the transferor in a specified
contract is taken to be or include, as
appropriate, a reference to the transfer
recipient.
(9) Subsection (7)(c) and subsection (8) have effect
despite any contrary provision in the specified
contract.
(10) The Minister may amend or revoke a transfer
notice.
(11) A transfer notice is not a statutory rule for the
purposes of the Rules Publication Act 1953.
30
Rail Company Act 2009
Act No. of
Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and s. 28
Employees to or from Company
(12) State tax is not payable in respect of any
document prepared to give effect to a transfer
notice.
28. Transitional provisions on transfer of rail
infrastructure and related assets, &c.
(1) In this section
"transferring asset" means any rail
infrastructure and related assets specified
in a transfer notice;
"transferring contract" means a contract
specified in a transfer notice;
"transferring liability" means a liability
specified in a transfer notice.
(2) On and after the transfer day, the following
provisions apply unless the transfer notice
provides otherwise:
(a) a reference to the transferor in a
document in relation to a transferring
asset, transferring liability or transferring
contract is taken where appropriate to be
or to include a reference to the transfer
recipient;
(b) a legal proceeding that could have been
instituted by or against the transferor
immediately before the transfer day and
that relates to a transferring asset,
transferring liability or transferring
contract may be instituted by or against
31
Rail Company Act 2009
Act No. of
s. 28 Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and
Employees to or from Company
the transfer recipient but not by or
against the transferor;
(c) a legal proceeding instituted by or
against the transferor that relates to a
transferring asset, transferring liability or
transferring contract and is pending
immediately before the transfer day may
be continued by or against the transfer
recipient but not by or against the
transferor;
(d) a document relating to a legal proceeding
referred to in paragraph (c) served on or
by the transferor before the transfer day
is taken to have been served on or by the
transfer recipient;
(e) a judgment or order of a court obtained
by or against the transferor before the
transfer day in relation to a transferring
asset, transferring liability or transferring
contract may be enforced by or against
the transfer recipient but not by or
against the transferor;
(f) a contract made by the transferor relating
to a transferring asset, transferring
liability or transferring contract but not
performed or discharged before the
transfer day is taken to have been made
by the transferor or transfer recipient, as
appropriate;
(g) any act done or omitted to be done in
relation to a transferring asset,
32
Rail Company Act 2009
Act No. of
Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and s. 29
Employees to or from Company
transferring liability or transferring
contract by the transferor before the
transfer day is taken, where appropriate,
to have been done or omitted by the
transfer recipient.
(3) On the transfer day, the obligations of the
transferor in relation to a transferring liability are
discharged.
(4) A transfer notice may limit the extent to which
the provisions of subsections (2) and (3) apply.
29. Removing doubt relating to transfer
(1) If there is any doubt
(a) as to whether any rail infrastructure and
related assets, liability or contract, or any
part of any rail infrastructure and related
assets, liability or contract, is transferred
to the transfer recipient by the operation
of section 27(7); or
(b) as to whether any contract or other
document relates to any rail
infrastructure and related assets, liability
or contract that is transferred to the
transfer recipient by the operation of
section 27(7)
the Minister is to determine the matter and is to
provide written notice of that determination to
the transfer recipient and, if the Minister
33
Rail Company Act 2009
Act No. of
s. 30 Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and
Employees to or from Company
considers it appropriate, a party to a contract that
is relevant to the determination of the matter.
(2) The determination of the Minister under
subsection (1) is final and binding.
30. Transfer of employees
(1) A transfer notice under section 27(2) may
specify the State Service employees and State
Service officers whose employment is to be
transferred to the Company.
(2) Before the transfer day, the Minister is to give to
each State Service employee and State Service
officer who is to become a transferred employee
written notice that his or her employment is to be
transferred to the Company and the date, or
approximate date, on which that transfer will
take effect.
(3) A State Service employee or State Service
officer may not be specified in a transfer notice
unless that person has agreed, in writing, to the
transfer of his or her employment to the
Company.
(4) On the transfer day, each State Service employee
and State Service officer who is specified in a
transfer notice
(a) becomes an employee of the Company
and the Company becomes the employer
of that person; and
34
Rail Company Act 2009
Act No. of
Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and s. 30
Employees to or from Company
(b) ceases to be a State Service employee or
State Service officer.
(5) A transferred employee
(a) is to be employed by the Company for
not less than the same remuneration as he
or she was receiving immediately before
becoming a transferred employee; and
(b) except where an award, industrial
agreement, any other law or the transfer
notice otherwise provides, retains all
accrued entitlements as if employment as
an employee of the Company were a
continuation of employment with the
Crown; and
(c) is entitled to claim those entitlements
against the Company; and
(d) except where the transfer notice provides
otherwise, is not entitled to any
compensation or other payment in
respect of the change of employer or any
change in his or her position description,
title, role or duties that results from the
change of employer.
(6) Subject to subsection (8), a contract of
employment that had effect in relation to a
person immediately before the person became a
transferred employee continues to have effect in
relation to the person as a transferred employee
and for that purpose
35
Rail Company Act 2009
Act No. of
s. 31 Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and
Employees to or from Company
(a) a reference in that contract to the Crown
is taken where appropriate to be or to
include a reference to the Company; and
(b) that contract is taken where appropriate
to be or to include a reference to the
Company.
(7) The period of service with the Crown of a person
who becomes a transferred employee is taken to
be service with the Company.
(8) Before, or as soon as practicable after, the
employment of a person is transferred to the
Company by the operation of subsection (4), the
Company by written notice provided to the
person may determine position description, title,
role or duties for the position to be occupied, or
occupied, by the person in the Company that is
different from his or her position description,
title, role or duties with the Crown.
(9) Nothing in this section prevents any of the terms
of employment of a transferred employee being
altered by an award, industrial agreement or law
after he or she becomes a transferred employee.
31. Superannuation for certain employees
(1) The Company, or a subsidiary of the Company,
may participate in the superannuation scheme
provided by the Retirement Benefits Act 1993 in
respect of a transferred employee employed by
the Company or subsidiary, if that transferred
36
Rail Company Act 2009
Act No. of
Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and s. 31
Employees to or from Company
employee was subject to that superannuation
scheme immediately before the transfer day.
(2) If under subsection (1) the Company or a
subsidiary of the Company participates in the
superannuation scheme provided by the
Retirement Benefits Act 1993
(a) the Company or subsidiary is taken to be
a prescribed authority for the purposes of
that Act in respect of any of its
employees who are subject to the
scheme; and
(b) the Minister administering the
Retirement Benefits Act 1993 may, by
written notice provided to the Company
or subsidiary
(i) require the Company or
subsidiary to provide such
information as is required for an
actuarial review of any of its
liabilities under that Act; and
(ii) give to the Company or
subsidiary such other instructions
relating to superannuation as he
or she considers appropriate.
(3) If the Company or a subsidiary of the Company
is given a requirement or instruction under
subsection (2), the Company or subsidiary is to
comply with the requirement or instruction.
37
Rail Company Act 2009
Act No. of
s. 32 Part 4 Transfer of Rail Infrastructure and Related Assets, &c., and
Employees to or from Company
32. Long service leave for certain employees
If immediately before the transfer day a
transferred employee was an employee within
the meaning of the Long Service Leave (State
Employees) Act 1994, the transferred employee
continues to be such an employee while
employed by the Company or a subsidiary of the
Company and, for that purpose, the Company or
subsidiary is taken to be a prescribed authority
within the meaning of that Act.
38
Rail Company Act 2009
Act No. of
Part 5 Sale of Company and Subsidiary s. 33
PART 5 SALE OF COMPANY AND SUBSIDIARY
33. Sale of Company
(1) While all the shares in the Company are held in
trust for the Crown, the members, jointly, may
do one or more of the following:
(a) sell their shares in the Company;
(b) direct the Company to sell its shares in a
subsidiary of the Company;
(c) direct the Company to sell all or any of
its assets;
(d) require the Company to direct a
subsidiary of the Company to sell all or
any of its assets.
(2) A direction or requirement is to be in writing.
(3) The Company, and a subsidiary of the Company,
are to comply with a direction or requirement.
34. Direction to facilitate sale
(1) The members may direct the Company, or
require the Company to direct a subsidiary of the
Company, to do one or more of the following to
facilitate a sale under section 33:
(a) take the action specified in the notice;
39
Rail Company Act 2009
Act No. of
s. 35 Part 5 Sale of Company and Subsidiary
(b) take all reasonable steps and actions to
facilitate the sale.
(2) A direction or requirement is to be in writing
provided to the Company or the subsidiary of the
Company.
(3) The Company, and the subsidiary of the
Company, are to comply with a direction or
requirement.
(4) The Board and the chief executive officer of the
Company, and the board of directors and chief
executive officer of the subsidiary of the
Company, may do all things necessary or
convenient to be done to enable compliance with
a direction or requirement.
35. Superannuation for certain employees
If
(a) any employees of the Company or a
subsidiary of the Company are subject to
a superannuation scheme provided by the
Retirement Benefits Act 1993; and
(b) either
(i) an agreement for the sale of
shares in the Company or in a
subsidiary of the Company has
been made; or
(ii) an agreement for the sale of any
assets of the Company or of a
40
Rail Company Act 2009
Act No. of
Part 5 Sale of Company and Subsidiary s. 36
subsidiary of the Company has
been made and provides for the
purchaser under that agreement to
employ an employee referred to
in paragraph (a)
the Minister administering the Retirement
Benefits Act 1993 is to make a declaration under
regulation 3(3) of the Retirement Benefits
Regulations 2005 declaring the agreement for
that sale to be a prescribed arrangement for the
purposes of those regulations.
36. Long service leave for certain employees
(1) In this section
"prescribed employee" means
(a) in the case of a sale of the shares
in a Company or in a subsidiary
of the Company, an employee of
the Company or subsidiary to
whom, immediately before the
sale day, the Long Service Leave
(State Employees) Act 1994
applies; or
(b) in the case of a sale of any asset
of the Company or of a
subsidiary of the Company, an
employee of the Company or
subsidiary to whom, immediately
before the sale day, the Long
Service Leave (State Employees)
41
Rail Company Act 2009
Act No. of
s. 36 Part 5 Sale of Company and Subsidiary
Act 1994 applies if the agreement
for the sale of the assets provides
for the purchaser under the
agreement to become the
employer of that employee;
"sale day" means
(a) the day on which the shares in the
Company, or in the subsidiary of
the Company, are acquired by the
purchaser in the sale under
section 33; or
(b) the day on which any assets of
the Company, or of the subsidiary
of the Company, vest in the
purchaser of those assets under an
agreement for their sale under
section 33.
(2) On the sale day, the Long Service Leave (State
Employees) Act 1994 ceases to apply to the
Company and its prescribed employees or the
subsidiary of the Company and its prescribed
employees.
(3) In calculating, on or after the sale day, the period
of service an employee has completed with the
Company or a subsidiary of the Company, for
the purposes of calculating his or her entitlement
to long service leave under any Act, award or
agreement, the employee is taken to have
completed, immediately before the sale day, a
period of service with the Company, or the
42
Rail Company Act 2009
Act No. of
Part 5 Sale of Company and Subsidiary s. 37
subsidiary, calculated in accordance with the
following formula:
where
"Calculated service" is the period of service
the employee is taken to have completed
with the Company, or the subsidiary of
the Company, immediately before the
sale day;
"S" is the total period of service the employee
has completed with the Company, or
with the subsidiary and the Company,
(including service the employee is taken
to have completed with the Company)
immediately before the sale day;
"P" is the period of service that would have
been required to be completed by the
employee to be entitled to long service
leave under the relevant Act, award or
agreement if the shares in the Company,
or the subsidiary, had always been owned
by the person who purchased them in the
sale under section 33.
37. Proceeds of sale of Company
The proceeds of a sale referred to in
section 33(1) are to be paid into the Consolidated
Fund.
43
Rail Company Act 2009
Act No. of
s. 38 Part 6 Miscellaneous
PART 6 MISCELLANEOUS
38. Protection for acts done under this Act
Any thing done or omitted in good faith that is
done or omitted under, or authorised by, this Act
does not, except as otherwise expressly provided
by or under this Act or as provided or agreed by
the person doing or omitting the thing
(a) terminate a contract, other instrument or
obligation; or
(b) give rise to a right to terminate a
contract, other instrument or obligation
by fulfilling a condition or in any other
manner; or
(c) release a surety or other obligee wholly
or in part from an obligation; or
(d) give rise to any right or remedy by a
party to a contract or other instrument; or
(e) constitute a breach of a contract or other
instrument; or
(f) constitute a civil or criminal wrong; or
(g) constitute a breach of confidence.
39. Displacement of Corporations legislation
To the extent that a provision of this Act is
incapable of concurrent operation with the
44
Rail Company Act 2009
Act No. of
Part 6 Miscellaneous s. 40
Corporations Act, that provision is declared to be
a displacement provision for the purposes of
section 5G of the Corporations Act.
40. Non-application of certain Acts
(1) Entering into and giving effect to a contract, or a
contract of a class, approved under
subsection (2) is authorised by this Act for the
purposes of the Trade Practices Act 1974 of the
Commonwealth and the Competition Policy
Reform (Tasmania) Act 1996.
(2) The Minister, by order published in the Gazette,
may approve for the purposes of this section a
contract, or a class of contracts, that relates to a
sale under section 33.
(3) An order under subsection (2) is not a statutory
rule for the purposes of the Rules Publication
Act 1953.
41. Delegation by Minister
The Minister, in writing, may delegate to any
person any of his or her powers or functions
under this Act, other than this power of
delegation.
42. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
45
Rail Company Act 2009
Act No. of
s. 42 Part 6 Miscellaneous
(2) Without limiting the generality of subsection (1),
the regulations may
(a) provide, or provide for, a process for the
resolution of a dispute as to what is a
reasonable fee or other reasonable
consideration for the purposes of
section 25(4); and
(b) provide for such a process by reference
to another Act or in any other manner;
and
(c) authorise the Valuer-General, or another
person specified in the regulations, to
determine such a dispute; and
(d) provide that the determination of such a
dispute in accordance with the process
provided in, or provided for by, the
regulations is binding on the parties to
the dispute; and
(e) provide for arrangements for employees
affected by a transfer of employment by
virtue of this Act or a sale under
section 33; and
(f) provide for the deregistration of the
Company or a subsidiary of the
Company under the Corporations Act.
(3) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
46
Rail Company Act 2009
Act No. of
Part 6 Miscellaneous s. 42
(4) The regulations may
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding 50
penalty units and, in the case of a
continuing offence, a further fine not
exceeding 10 penalty units for each day
during which the offence continues.
(5) The regulations may authorise any matter to be
from time to time approved, determined, applied
or regulated by the Minister or the Treasurer.
(6) The regulations may
(a) provide for savings or transitional
matters necessary or expedient for
bringing this Act into operation; and
(b) provide for savings or transitional
matters consequent on
(i) a sale under section 33; or
(ii) a transfer of any rail
infrastructure and related assets,
liabilities and contracts to a
transfer recipient under a transfer
notice.
(7) Regulations made under subsection (6) may
(a) include, without limitation, provisions
providing for the transfer of employees
47
Rail Company Act 2009
Act No. of
s. 43 Part 6 Miscellaneous
to a transfer recipient and for related
matters; and
(b) provide for any of the savings or
transitional matters to take effect when
this Act commences or on a later day
specified in the regulations, whether the
day so specified is before, on or after the
day on which the regulations are made.
43. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Infrastructure; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of
Infrastructure, Energy and Resources.
44. Repeals
(1) In this section
"prescribed legislation" means this Act and
the regulations.
(2) The prescribed legislation is repealed and
rescinded
48
Rail Company Act 2009
Act No. of
Part 6 Miscellaneous s. 45
(a) if the shares in the Company are sold
under section 33, on the day on which
those shares in the Company are acquired
by the purchaser in the sale; or
(b) if the Company has been deregistered, on
the day fixed by proclamation under
subsection (3).
(3) On the recommendation of the Minister, the
Governor, by proclamation, may repeal and
rescind the prescribed legislation.
45. Consequential amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
49
Rail Company Act 2009
Act No. of
sch. 1
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
Section 45
Tasmanian Public Finance Corporation Act 1985
1. The definition of "participating authority" in
section 3(1) is amended as follows:
(a) by omitting from paragraph (d) "Water
and Sewerage Corporations Act 2008;"
and substituting "Water and Sewerage
Corporations Act 2008; or";
(b) by inserting the following paragraph after
paragraph (d):
(e) a company formed under section
5 of the Rail Company Act 2009
while all the shares in that
company are held in trust for the
Crown, or a subsidiary of that
company while all the shares in
that subsidiary are held by that
company;
50 Government Printer, Tasmania