Division Division 3 - Dairy Industry Service Reform Act 2003 - Transfer of assets and liabilities of the Dairy Research and Development Corporation | Zoe
An Act relating to the dairy industry, and for related purposes
Part 1—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Dairy Industry Service Reform Act 2003.
2 Commencement [see Note 1]
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
3 Schedule(s)
Each Act, and each set of regulations, that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
4 Crown to be bound
This Act binds the Crown in all its capacities.
5 External Territories
This Act extends to all the external Territories.
6 Extraterritorial operation
This Act applies both within and outside Australia.
Part 2—Provision of levy information to the Australian Dairy Corporation
7 Provision of levy information to the Australian Dairy Corporation
Provision of information
(1) The Australian Dairy Corporation may, by notice in writing, require a first purchaser who purchases relevant dairy produce from the producer of the produce to provide to the Corporation, within the time specified in the notice, the name, address, contact details and ABN of the producer.
(2) A first purchaser must comply with a notice under subsection (1).
Use or disclosure of information
(3) The Australian Dairy Corporation may use or disclose information about producers provided to it under this section for any of the following purposes:
(a) to inform the producers about the amendments to be made by this Act;
(b) to make the producers aware of their eligibility to become a member of Dairy Australia Limited;
(c) to invite the producers to make applications to the Corporation to become such a member;
(d) to develop a list of those producers eligible to become such a member.
Definitions
(4) In this section:
ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
first purchaser has the same meaning as in the Primary Industries Levies and Charges Collection Act 1991.
producer has the same meaning as in the Primary Industries Levies and Charges Collection Act 1991.
relevant dairy produce has the same meaning as in the Primary Industries (Excise) Levies Act 1999.
Part 3—Privatisation of dairy corporations
Division 1—Definitions
8 Definitions
In this Part, unless the contrary intention appears:
ADC means the Australian Dairy Corporation as in existence before the conversion time.
ASIC means the Australian Securities and Investments Commission.
asset means:
(a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and
(b) any right, power, privilege or immunity, whether actual, contingent or prospective.
combined service period, in relation to a transferring employee, means the total of:
(a) the period that is, immediately before the conversion time, the employee’s period of service for the purposes of the Long Service Leave Act; and
(b) the period during which the employee continues to be an employee of Dairy Australia Limited.
commencing time means the beginning of the day on which this Act receives the Royal Assent.
conversion time means the time when Schedule 1 commences.
Dairy Australia Limited means ADC, after it is registered under the Corporations Act 2001 as mentioned in section 11 of this Act.
DRDC means the Dairy Research and Development Corporation as in existence before the conversion time.
employee, in relation to DRDC, means a person who is an officer or employee of DRDC immediately before the conversion time.
liability means any liability, duty or obligation, whether actual, contingent or prospective.
Long Service Leave Act means the Long Service Leave (Commonwealth Employees) Act 1976, as in force immediately before the conversion time.
Maternity Leave Act means the Maternity Leave (Commonwealth Employees) Act 1973, as in force immediately before the conversion time.
proposed director means a person specified as a director under paragraph 601BC(2)(f) of the Corporations Act 2001 in relation to the application to ASIC to register ADC as a company limited by guarantee.
SRC Act means the Safety, Rehabilitation and Compensation Act 1988, as in force immediately before the conversion time.
transferring ADC employee means a person who is an officer or employee of ADC immediately before the conversion time.
transferring DRDC employee means a person who is taken to have been engaged as an employee of Dairy Australia Limited under section 20.
transferring employee means a transferring ADC employee or a transferring DRDC employee.
Division 2—Registration of the Australian Dairy Corporation as a Corporations Act company
9 Application for registration
Application
(1) As soon as practicable after the commencing time, ADC must apply to ASIC under Part 5B.1 of the Corporations Act 2001 to register ADC as a company limited by guarantee.
(2) ADC is hereby authorised to make the application.
Directors
(3) The application must not specify a person as a director under paragraph 601BC(2)(f) of the Corporations Act 2001 unless the Minister has first approved in writing the person being so specified.
Constitution
(4) The application must be accompanied by a copy of ADC’s proposed constitution. The proposed constitution must first be approved in writing by the Minister.
10 Funding contract before registration
(1) During the period beginning at the commencing time and ending immediately before the conversion time:
(a) the Minister, on behalf of the Commonwealth; and
(b) at least 3 of the proposed directors, on behalf of Dairy Australia Limited;
may enter into a contract of a kind that could be entered into after the conversion time under section 5 of the Dairy Produce Act 1986.
(2) If such a contract is entered into, then, at the conversion time:
(a) the Commonwealth and Dairy Australia Limited are taken to have entered into the contract under section 5 of the Dairy Produce Act 1986; and
(b) Dairy Australia Limited becomes bound by the contract and entitled to its benefit.
Note: If such a contract is entered into, one of the effects of this section is that, after the conversion time, the Minister would be able to declare Dairy Australia Limited as the industry services body under section 7 of the Dairy Produce Act 1986.
11 Registration as a company under the Corporations Act
(1) At the conversion time, ASIC is taken to have registered ADC under section 601BD of the Corporations Act 2001:
(a) as a company limited by guarantee; and
(b) with the name “Dairy Australia Limited”.
Note: The effect of registration of ADC under the Corporations Act 2001 is not to create a new legal entity: see section 601BM of that Act.
(2) ASIC must issue a certificate and ACN under section 601BD of the Corporations Act 2001 in respect of the registration. The date of registration is to be the day on which the conversion time occurred.
12 Operation of the Corporations Act after conversion time
Nothing in this Part prevents, after the conversion time:
(a) a change in the name of Dairy Australia Limited; or
(b) a change in the structure, constitution or membership of Dairy Australia Limited.
13 Accounting records
For the purposes of the Corporations Act 2001:
(a) the accounting records kept by ADC before the conversion time under section 20 of the Commonwealth Authorities and Companies Act 1997 are to be treated as financial records of Dairy Australia Limited; and
(b) an annual report and financial statements prepared in relation to a financial year by ADC under section 9 of the Commonwealth Authorities and Companies Act 1997 are to be treated as a financial report of Dairy Australia Limited for that financial year.
14 Dairy Australia Limited not to be a Commonwealth authority etc.
(1) After the conversion time, Dairy Australia Limited is not taken, for the purposes of a law, to be:
(a) a Commonwealth authority; or
(b) established for a public purpose or for a purpose of the Commonwealth; or
(c) a public authority or an agency or instrumentality of the Crown;
(within the ordinary meaning of the expression concerned) unless a law expressly provides otherwise.
(2) In this section:
law means:
(a) an Act of the Commonwealth or of a State or Territory; or
(b) regulations or any other instrument made under such an Act.
Division 3—Transfer of assets and liabilities of the Dairy Research and Development Corporation
15 Transfer of assets and liabilities
(1) This section applies to:
(a) the assets of DRDC; and
(b) the liabilities of DRDC.
(2) At the conversion time, the assets and liabilities cease to be assets and liabilities of DRDC and become assets and liabilities of Dairy Australia Limited without any conveyance, transfer or assignment.
(3) Immediately after the conversion time, Dairy Australia Limited becomes DRDC’s successor in law in relation to the assets and liabilities.
Note: The effect of converting ADC into a Corporations Act company is not to create a new legal entity. The assets and liabilities of ADC immediately before the conversion time will remain assets and liabilities of Dairy Australia Limited immediately after that time.
16 Transfer of pending proceedings
If any proceedings to which DRDC was a party:
(a) were pending in any court or tribunal immediately before the conversion time; and
(b) related, in whole or in part, to an asset or liability of DRDC;
Dairy Australia Limited is, by force of this section, substituted for DRDC as a party to the proceedings to the extent to which the proceedings relate to the asset or liability.
17 Exemption from stamp duty etc.
(1) No stamp duty or other tax is payable under a law of a State or Territory in respect of an exempt matter, or anything connected with an exempt matter.
(2) The Minister may certify in writing:
(a) that a specified matter is an exempt matter; or
(b) that a specified thing was done in connection with a specified exempt matter.
(3) In all courts, and for all purposes, a certificate under subsection (2) is evidence of the matter stated in the certificate.
(4) In this section:
exempt matter means:
(a) the transfer of an asset or a liability under section 15; or
(b) the operation of this Division in any other respect.
18 References in certain instruments
(1) This section applies to an instrument if:
(a) it is in operation immediately before the conversion time; and
(b) it is an instrument:
(i) to which DRDC is a party; or
(ii) which was given to, or in favour of, DRDC; or
(iii) in which a reference is made to DRDC; or
(iv) under which any right or liability accrues or may accrue to DRDC.
(2) The instrument continues to have effect after the conversion time as if a reference in the instrument to DRDC were a reference to Dairy Australia Limited.
(3) In this section:
instrument does not include regulations or any other instrument made under the Superannuation Act 1976 or the Superannuation Act 1990.
19 Certificates in relation to assets
(1) This section applies if:
(a) an asset vests in Dairy Australia Limited under this Division; and
(b) there is lodged with an assets official a certificate that:
(i) is signed by the Minister; and
(ii) identifies the asset; and
(iii) states that the asset has become vested in Dairy Australia Limited under this Division.
(2) The assets official may:
(a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and
(b) make such entries in the register as are necessary having regard to the effect of this Division.
(3) In this section:
assets official means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.
Division 4—Transferring employees of dairy corporations
Subdivision A—Preliminary
20 Transfer of staff
At the conversion time, each employee of DRDC ceases to be employed by DRDC and is taken to have been engaged as an employee of Dairy Australia Limited.
Note: The effect of converting ADC into a Corporations Act company is not to create a new legal entity. The employees of ADC immediately before the conversion time will remain employees of Dairy Australia Limited immediately after that time.
21 Terms and conditions of transferring employees
DRDC employees
(1) A transferring DRDC employee is taken:
(a) to have been engaged by Dairy Australia Limited on the same terms and conditions as those that applied to the person, immediately before the conversion time, as an employee of DRDC; and
(b) to have accrued an entitlement to benefits, in connection with that engagement by Dairy Australia Limited, that is equivalent to the entitlement that the person had accrued, as an employee of DRDC, immediately before the conversion time.
(2) The service of a transferring DRDC employee as an employee of Dairy Australia Limited is taken, for all purposes, to be continuous with his or her service as an employee of DRDC.
(3) Except as provided by this Division, a transferring DRDC employee is not entitled to receive any payment or other benefit merely because of the operation of this Division.
ADC employees
(4) Except as provided by this Division, a transferring ADC employee is not entitled to receive any payment or other benefit merely because of the operation of this Part.
Other
(5) This section:
(a) has effect subject to this Division; and
(b) is not to be taken to be a law of the Commonwealth for the purposes of paragraph 170XA(2)(b) of the Workplace Relations Act 1996, as in force immediately before the reform commencement within the meaning given by that Act.
22 Variation of terms and conditions of employment
(1) This Part does not prevent the terms and conditions of a transferring ADC employee’s employment, or a transferring DRDC employee’s employment, after the conversion time from being varied:
(a) in accordance with those terms and conditions; or
(b) by or under a law, award, determination or agreement.
(2) In this section:
law means:
(a) a law of the Commonwealth or of a State or Territory; or
(b) regulations or any other instrument (other than an award, determination or industrial agreement) made under such a law.
vary, in relation to terms and conditions, includes:
(a) omitting any of those terms and conditions; or
(b) adding to those terms and conditions; or
(c) substituting new terms or conditions for any of those terms and conditions.
Subdivision B—Application of the Safety, Rehabilitation and Compensation Act
23 Expressions defined in SRC Act
Expressions that are defined in the SRC Act and used in this Subdivision have the same meanings as in that Act.
24 Continued application of SRC Act
The SRC Act continues to apply after the conversion time in relation to:
(a) injuries suffered before that time by a transferring employee; and
(b) loss of, or damage to, property incurred before that time by a transferring employee.
25 Commonwealth liability to meet certain SRC Act liabilities
After the conversion time, the Commonwealth:
(a) is liable to pay the liabilities of ADC under section 128A of the SRC Act; and
(b) subject to section 26 of this Act, is taken to have been the employer of the transferring ADC employees before the conversion time for the purposes of the application of the SRC Act in relation to those liabilities.
26 SRC Act: rehabilitation provisions
(1) If a transferring employee had, before the conversion time, suffered an injury resulting in an incapacity for work or an impairment, Dairy Australia Limited must, after that time, provide such reasonable co‑operation and assistance as the Commonwealth requires to enable the Commonwealth to fulfil its obligations under sections 36, 37, 38, 39, 41 and 41A of the SRC Act in relation to the transferring employee.
(2) After the conversion time, Dairy Australia Limited is, for the purposes of section 40 of the SRC Act, taken to be the relevant employer of each transferring employee.
(3) After the conversion time, Dairy Australia Limited is, for the purposes of applying section 71 of the SRC Act in relation to each transferring employee, taken to be a Commonwealth authority.
27 Premiums under the SRC Act
(1) Comcare must, as soon as practicable after the conversion time, determine the amount (if any) by which the premium for ADC and DRDC for the transitional financial year should be reduced.
(2) If:
(a) an amount equal to the premium for ADC or DRDC for the transitional financial year has been paid under Division 4A of Part VII of the SRC Act; and
(b) the amount of the premium is reduced as a result of a determination under subsection (1);
the Secretary of the Department may, in writing, direct that an amount equal to the refund amount, or amounts that together add up to the refund amount, be paid to Dairy Australia Limited in accordance with the direction.
(3) A direction by the Secretary of the Department may be given subject to such conditions (if any) about the use or expenditure of the amount or amounts to which it relates as are set out in the direction.
(4) If the Secretary of the Department gives a direction, the amount or amounts to which it relates are payable to Dairy Australia Limited out of the Consolidated Revenue Fund, which is appropriated accordingly.
(5) The payment of an amount under subsection (4) must be made in accordance with the direction, and is subject to the conditions (if any) set out in the direction.
(6) A copy of each direction must be published in the Gazette within 14 days after the direction is given.
(7) The direction is not invalid merely because it has not been published as required under subsection (6).
(8) In this section:
refund amount means the amount equal to the difference between the amount of premium for ADC or DRDC for the transitional financial year and the amount of that premium as reduced because of a determination under subsection (1).
transitional financial year means the financial year in which the conversion time occurs.
Subdivision C—Maternity leave provisions
28 Maternity leave starting before conversion time
(1) This section applies in relation to a transferring employee if:
(a) immediately before the conversion time, the employee was a female employee of ADC or DRDC who was on leave granted under the Maternity Leave Act; and
(b) the employee would have been entitled to have remained on that leave after the conversion time if the employee had continued to be an employee of ADC or DRDC.
(2) After the conversion time, the Maternity Leave Act continues to apply to the employee in relation to the confinement in respect of which the leave was granted as if Dairy Australia Limited were a prescribed authority for the purposes of that Act.
29 Maternity leave starting after conversion time
(1) This section applies in relation to a transferring employee if:
(a) immediately before the conversion time, the person was a female employee of ADC or DRDC; and
(b) within 9 months after the conversion time, the employee would have been entitled to start leave granted under the Maternity Leave Act if the employee had continued to be an employee of ADC or DRDC.
(2) After the conversion time, the Maternity Leave Act continues to apply to the employee in relation to the confinement in respect of which she would have been entitled to leave as if Dairy Australia Limited were a prescribed authority for the purposes of that Act.
Subdivision D—Provisions relating to superannuation
30 Application of Superannuation Acts
Dairy Australia Limited is not an approved authority for the purposes of the Superannuation Act 1976 or the Superannuation Act 1990.
31 Application of the Superannuation Benefits (Supervisory Mechanisms) Act 1990
(1) The Minister must not declare Dairy Australia Limited to be a relevant body for the purposes of the Superannuation Benefits (Supervisory Mechanisms) Act 1990.
(2) In this section:
Minister has the same meaning as in the Superannuation Benefits (Supervisory Mechanisms) Act 1990.
Subdivision E—Provisions relating to long service leave
32 Expressions defined in Long Service Leave Act
Expressions that are defined in the Long Service Leave Act and used in this Subdivision have the same meanings as in that Act.
33 Long service leave for employees with less than 10 years service
(1) This section applies in relation to a transferring employee whose period of service for the purposes of the Long Service Leave Act immediately before the conversion time was less than 10 years.
(2) This section does not apply in relation to an employee who dies.
(3) If the employee continues to be employed by Dairy Australia Limited until his or her combined service period is at least 10 years, Dairy Australia Limited may grant the employee long service leave on full salary for a period up to the employee’s long service leave credit under subsection 36(1).
(4) If:
(a) the employee stops being an employee of Dairy Australia Limited on or after reaching the minimum retiring age, or because of retrenchment; and
(b) the employee’s combined service period at the time when he or she stops being an employee of Dairy Australia Limited is at least one year;
Dairy Australia Limited may grant the employee long service leave on full salary for a period up to the employee’s long service leave credit under subsection 36(1).
(5) If a period of long service leave may be granted to an employee under subsection (3) or (4), Dairy Australia Limited may, if the employee asks in writing, grant the employee long service leave on half salary for a period not longer than twice the first‑mentioned period.
(6) Long service leave granted in the circumstances set out in subsection (4) must be taken so as to end immediately before the employee stops being an employee.
(7) For the purposes of this section, the rate of salary to be used in working out the full salary of an employee is the rate that would apply to the employee under section 20 of the Long Service Leave Act if:
(a) that section applied to the employee; and
(b) for the expression “section 16 or 17” in that section there were substituted the expression “section 33 of the Dairy Industry Service Reform Act 2003”.
34 Payments in lieu of long service leave for employees with less than 10 years service
(1) This section applies to a transferring employee whose period of service for the purposes of the Long Service Leave Act immediately before the conversion time was less than 10 years.
(2) This section does not apply in relation to an employee who dies.
(3) If the employee stops being an employee of Dairy Australia Limited on or after the day on which his or her combined service period reaches 10 years, Dairy Australia Limited must pay him or her an amount equal to full salary in respect of his or her long service leave credit under subsection 36(2).
(4) If:
(a) the employee stops being an employee of Dairy Australia Limited, on or after reaching the minimum retiring age, or because of retrenchment; and
(b) at that time the employee’s combined service period is at least one year;
Dairy Australia Limited must pay him or her an amount equal to full salary in respect of his or her long service leave credit under subsection 36(2).
(5) If:
(a) the employee stops being an employee of Dairy Australia Limited; and
(b) Dairy Australia Limited is satisfied that the employee left Dairy Australia Limited’s employment because of ill‑health that justified his or her so leaving; and
(c) when the employee left, his or her combined service period was at least one year;
Dairy Australia Limited must pay him or her an amount equal to full salary in respect of his or her long service leave credit under subsection 36(2).
(6) For the purposes of this section, the rate of salary to be used in working out the full salary of an employee is the rate that would apply to the employee under section 21 of the Long Service Leave Act if:
(a) that section applied to the employee; and
(b) for the expression “sections 16 and 17” in that section there were substituted the expression “section 34 of the Dairy Industry Service Reform Act 2003”.
35 Payments on the death of an employee
(1) This section applies to a transferring employee whose period of service for the purposes of the Long Service Leave Act immediately before the conversion time was less than 10 years.
(2) If the employee dies after the conversion time and immediately before his or her death:
(a) the employee was an employee of Dairy Australia Limited; and
(b) the employee’s combined service period was at least one year; and
(c) the employee had one or more dependants;
Dairy Australia Limited must make a payment to the dependant or dependants.
(3) The total amount of the payment or payments is the amount that would have been payable to the person under section 34 if, on the day of his or her death, the person had instead stopped being an employee of Dairy Australia Limited on or after reaching the minimum retiring age.
(4) If subsection (2) applies, section 23 of the Long Service Leave Act has effect as if:
(a) that section applied to an employee of Dairy Australia Limited; and
(b) a reference in that section to the approving authority were a reference to Dairy Australia Limited; and
(c) for the expression “this Act” in that section there were substituted the expression “section 35 of the Dairy Industry Service Reform Act 2003”; and
(d) for the expression “subsection 16(7) or 17(5)” there were substituted the expression “section 35 of the Dairy Industry Service Reform Act 2003”.
36 Employee’s long service leave credit for the purposes of sections 33 and 34
(1) For the purposes of section 33, an employee’s long service leave credit is equal to the long service leave credit that the employee would have under the Long Service Leave Act for the period:
(a) beginning when the employee began his or her period of service; and
(b) ending at the conversion time;
if the employee had been retrenched at the conversion time.
(2) For the purposes of section 34, an employee’s long service leave credit is the employee’s long service leave credit worked out under subsection (1) of this section reduced by any long service leave credit used under section 33.
37 Employees with at least 10 years service
(1) This section applies to a transferring employee whose period of service for the purposes of the Long Service Leave Act immediately before the conversion time was at least 10 years.
(2) Even though the employee ceases to be employed in Government Service for the purposes of the Long Service Leave Act, the employee’s accrued rights under that Act continue. However, the employee is not entitled to receive any payment because he or she ceases to be in Government Service.
(3) The Long Service Leave Act has effect after the conversion time in relation to the employee’s rights under that Act that accrued before the conversion time, as if Dairy Australia Limited were an approving authority for the purposes of that Act.
38 Division not to affect post‑commencement long service leave rights
(1) This Division does not affect an employee’s post‑commencement long service leave rights.
(2) In this section:
law means:
(a) a law of the Commonwealth or of a State or Territory; or
(b) regulations or any other instrument (other than an award, determination or industrial agreement) made under such a law.
post‑commencement long service leave rights means any long service leave rights the employee acquires after the conversion time under an award, determination, industrial agreement or law (other than this Act).
Division 5—Other provisions
39 Operation of Archives Act
(1) This Part does not authorise a Commonwealth record (within the meaning of the Archives Act 1983) to be transferred or otherwise dealt with except in accordance with the provisions of that Act.
(2) A Commonwealth record (within the meaning of the Archives Act 1983) must not be transferred to a person under this Part unless the National Archives of Australia has given permission under paragraph 24(2)(b) of that Act.
40 Certificates etc. taken to be authentic etc.
A document that appears to be a certificate or other document made or issued under this Part:
(a) is taken to be such a certificate or other document; and
(b) is taken to have been properly given;
unless the contrary is established.
Part 4—Other provisions
41 Delegation
(1) The Minister may, by writing, delegate all or any of his or her powers and functions under this Act to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, in the Department.
(2) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Minister.
42 Compensation for acquisition of property
(1) If:
(a) apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay the person a reasonable amount of compensation in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
43 Regulations
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) arising from:
(a) the amendments or repeals made by this Act; and
(b) the enactment of this Act.