Mechanically, the Act authorises the Treasurer to sell TOTE Tasmania’s shares or business, and the shares or business of its subsidiaries, and to take related steps (contracts, transfers, constitution amendments). The Treasurer sets sale terms and must have regard to a fair and reasonable price (ss5,6,8).
The Act affects employees (transfer/termination orders, special long‑service‑leave and superannuation rules), purchasers (vesting of contracts and liabilities, confidentiality limits) and directs sale proceeds into the Public Account; it vests broad discretionary powers in the Treasurer (ss11,15–19,21,23,9).
The TOTE Tasmania (Sale) Act 2009 establishes a statutory regime by which the Treasurer may sell shares in TOTE Tasmania or its subsidiaries, or sell the business of TOTE Tasmania or of any TOTE subsidiary, and manages the legal and administrative consequences of those sales. The Act authorises transactions (s 5), gives the Treasurer broad powers to effect and facilitate sales (ss 6-9), and sets out transitional arrangements for assets, liabilities, contracts and employees where either shares or business are sold (Parts 3 and 4; ss 11-19). It also enables the Crown to take title to any remaining business that is not sold (s 18), and provides for the deregistration of companies once their business has been sold (s 20). The Act makes provision for disclosure of information to potential purchasers subject to confidentiality obligations and an express penalty for unauthorised disclosure (s 21). It requires that proceeds of sale are paid into the Public Account (s 23), and directs the Auditor-General to review sales and lay a report to Parliament within set timeframes (s 24). The Act includes protections for acts done in good faith under its authority (s 25), declares certain matters excluded for the purposes of s 5F of the Corporations Act (s 26), and permits the Treasurer to approve contracts that would otherwise raise Trade Practices Act or competition issues (s 27). The Governor may make regulations for matters connected to the sale process (s 29). Commencement is upon Royal Assent (s 2).
Mechanically, the Act changes ownership and regulatory relationships by: permitting share transfers (s 5(1)(a), (c)); permitting transfers of whole businesses and their legal incidents (s 5(1)(b), (d); ss 14, 18); authorising the Treasurer to direct the company or subsidiaries to take actions to facilitate a sale and to amend their constitutions despite any contrary provision (ss 6-8); providing statutory rules for exclusion of parts of the business from the operation of the Act (s 4(3)-(4)); and prescribing particular treatment of employee entitlements including long service leave and superannuation consequences (ss 11-12, 15-17). The Act also affects statutory oversight and post-sale administration: it mandates Auditor-General review (s 24), contemplates deregulatory steps like deregistration under s 601AA of the Corporations Act (s 20), and provides for repeal of antecedent TOTE legislation once relevant events occur (s 32).
Current sections
Direct links to the current provisions in TOTE Tasmania (Sale) Act 2009.
This Act commences on the day on which this Act receives the Royal Assent.
3
Interpretation
3 Interpretation
In this Act, unless the contrary intention appears –
asset includes any real and personal property, operation, right and licence;
business, in relation to TOTE Tasmania or a TOTE subsidiary, has the meaning given by section 4 ;
contract includes an agreement and an arrangement;
legal proceeding includes arbitration and mediation;
liability means an actual, contingent or prospective liability, duty or obligation;
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 TOTE subsidiary; and
(d) any other rights;
right means a right, power, privilege or immunity, whether present or future and whether vested or contingent;
sale day means –
(a) in relation to the sale of shares in TOTE Tasmania or in a TOTE subsidiary under section 5(1)(a) or (c) , the day on which those shares are acquired by the purchaser; or
(b) in relation to the sale of the business of TOTE Tasmania or of a TOTE subsidiary under section 5(1)(b) or (d) , the day on which the business vests in the purchaser;
(1) In relation to TOTE Tasmania or a TOTE subsidiary –
business includes –
(a) the business conducted by TOTE Tasmania or the TOTE subsidiary; and
(b) the goodwill of that business; and
(c) the assets of TOTE Tasmania or the TOTE subsidiary; and
(d) the liabilities, duties and obligations of TOTE Tasmania or the TOTE subsidiary, whether present or future and whether vested or contingent; and
(e) a part of the business of TOTE Tasmania or the TOTE subsidiary.
(2) However –
(a) this Act does not apply in relation to a part of the business of TOTE Tasmania or of a TOTE subsidiary that the Treasurer, under subsection (3) , has excluded from the operation of this Act; and
(b) a provision of this Act does not apply in relation to a part of the business of TOTE Tasmania or of a TOTE subsidiary that the Treasurer, under subsection (3) , has excluded from the operation of that provision.
(3) The Treasurer, by order, may exclude a part of the business of TOTE Tasmania, or the whole or a part of the business of a TOTE subsidiary, from the operation of this Act or a provision of this Act.
Part 2 Authority of Treasurer to Sell TOTE Tasmania
5
Authority of Treasurer to sell TOTE Tasmania
5 Authority of Treasurer to sell TOTE Tasmania
(1) While all the shares in TOTE Tasmania are held by the Treasurer and another Minister in trust for the Crown, the Treasurer may sell and transfer, in accordance with this Act, one or more of the following:
(a) those shares in TOTE Tasmania;
(b) the business of TOTE Tasmania;
(c) the shares in a TOTE subsidiary;
(d) the business of a TOTE subsidiary.
(2) A sale under this section will be on the conditions the Treasurer considers appropriate.
(3) In exercising a power of sale under this section, the Treasurer is to have regard to the achievement of a fair and reasonable price.
6
Treasurer may do convenient things
6 Treasurer may do convenient things
For the purposes of a sale under section 5 , the Treasurer may –
(a) enter into contracts; and
(b) transfer shares in TOTE Tasmania or in a TOTE subsidiary in accordance with this Act; and
(c) transfer the business of TOTE Tasmania or of a TOTE subsidiary; and
(d) do any other thing the Treasurer considers necessary or convenient in connection with the sale.
7
Treasurer may give directions to TOTE Tasmania or TOTE subsidiary
7 Treasurer may give directions to TOTE Tasmania or TOTE subsidiary
(1) The Treasurer may direct TOTE Tasmania or a TOTE subsidiary to do one or more of the following to facilitate a sale under section 5 :
(a) take the action specified in the notice;
(b) take all reasonable steps and actions.
(2) A direction is to be in writing provided to TOTE Tasmania or the TOTE subsidiary.
(3) TOTE Tasmania and a TOTE subsidiary are to comply with a direction.
(4) The board of directors and chief executive officer of TOTE Tasmania, and the board of directors and chief executive officer of a TOTE subsidiary, may do all things necessary or convenient to be done to enable compliance with a direction.
8
Treasurer may amend constitution of TOTE Tasmania or TOTE subsidiary, &c.
8 Treasurer may amend constitution of TOTE Tasmania or TOTE subsidiary, &c.
(1) In this section –
amend means do any one or more of the following:
(a) omit matter;
(b) insert matter;
(c) omit matter and substitute other matter.
(2) Despite anything to the contrary in the constitution of TOTE Tasmania or a TOTE subsidiary, the Treasurer may amend, or revoke and substitute, that constitution for the purposes of facilitating a sale under section 5 .
9
Exemption from State tax
9 Exemption from State tax
(1) In this section –
State tax means any tax, duty, charge or application, registration or other fee imposed by an Act or other law of Tasmania.
(2) The Treasurer may determine that State tax is not payable in respect of any document prepared in relation to, or for the purposes of, a sale under section 5 .
(3) A determination is to be made by certificate provided to the person who would otherwise be required to pay the State tax.
(4) State tax is not payable in respect of an order under section 18(2) or any other document prepared in relation to, or for the purposes of, the transfer of the business of TOTE Tasmania or of a TOTE subsidiary under section 18 .
Part 3
Sale of Shares in TOTE Tasmania or TOTE Subsidiary
Part 3 Sale of Shares in TOTE Tasmania or TOTE Subsidiary
10
Application of Part
10 Application of Part
This Part applies in relation to –
(a) a sale under section 5(1)(a) of shares in TOTE Tasmania; and
(b) a sale under section 5(1)(c) of shares in a TOTE subsidiary.
11
Long service leave if shares sold
11 Long service leave if shares sold
(1) This section applies to an employee of TOTE Tasmania or of a TOTE subsidiary to whom, immediately before the sale day, the Long Service Leave (State Employees) Act 1994 applies.
(3) In calculating, on or after the sale day, the period of service an employee has completed with TOTE Tasmania, or a TOTE subsidiary, 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 TOTE Tasmania, or the TOTE subsidiary, calculated in accordance with the following formula:
where:
Calculated service is the period of service the employee is taken to have completed with TOTE Tasmania, or the TOTE subsidiary, immediately before the sale day;
S is the total period of service the employee has completed with TOTE Tasmania, or with the TOTE subsidiary and TOTE Tasmania, (including service the employee is taken to have completed with TOTE Tasmania) 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 TOTE Tasmania, or the TOTE subsidiary, had always been owned by the person who purchased them in the sale under section 5 .
Sale of Business of TOTE Tasmania or TOTE Subsidiary
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
Division 1
Preliminary
Division 1 Preliminary
13
Application of Part
13 Application of Part
This Part applies in relation to –
(a) a sale under section 5(1)(b) of the business of TOTE Tasmania; and
(b) a sale under section 5(1)(d) of the business of a TOTE subsidiary.
Division 2
Sale of business of TOTE Tasmania or TOTE subsidiary
Division 2 Sale of business of TOTE Tasmania or TOTE subsidiary
14
Transitional provisions if business sold
14 Transitional provisions if business sold
(1) In this section –
transferring business means the business of TOTE Tasmania, or of a TOTE subsidiary, that the Treasurer agrees to sell.
(2) If the business of TOTE Tasmania or of a TOTE subsidiary is sold, on and after the sale day the following provisions apply except as otherwise agreed, in writing, by the Treasurer and the purchaser:
(a) a reference in an existing document to TOTE Tasmania, or the TOTE subsidiary, in relation to the transferring business is taken, where appropriate, to be or to include a reference to the purchaser;
(b) a legal proceeding that could have been instituted by or against TOTE Tasmania, or the TOTE subsidiary, immediately before the sale day and that relates to the transferring business may be instituted by or against the purchaser;
(c) a legal proceeding instituted by or against TOTE Tasmania, or the TOTE subsidiary, that relates to the transferring business and is pending immediately before the sale day may be continued by or against the purchaser;
(d) a document served on TOTE Tasmania, or the TOTE subsidiary, in respect of a legal proceeding referred to in paragraph (c) is taken to have been served on the purchaser;
(e) a judgment or order of a court obtained by or against TOTE Tasmania, or the TOTE subsidiary, in relation to the transferring business may be enforced by or against the purchaser but may not be enforced by or against TOTE Tasmania, or the TOTE subsidiary;
(f) a contract made by TOTE Tasmania, or the TOTE subsidiary, relating to the transferring business but not performed or discharged before the sale day is taken to have been made by the purchaser.
(3) If the business of TOTE Tasmania or of a TOTE subsidiary is sold, the obligations of TOTE Tasmania or the TOTE subsidiary in relation to a liability that becomes the liability of the purchaser as part of that sale are discharged on the sale day.
15
Arrangements for employees if business sold
15 Arrangements for employees if business sold
(1) In this section –
transferred employee means a person whose employment with TOTE Tasmania, or a TOTE subsidiary, is transferred by reason of an order made under subsection (2)(a) and the operation of subsection (6) .
(2) If the Treasurer sells the business of TOTE Tasmania or of a TOTE subsidiary, the Treasurer may, by order provided to TOTE Tasmania or the TOTE subsidiary –
(a) transfer to the purchaser the employment of a person who, immediately before the sale day, was employed by TOTE Tasmania or the TOTE subsidiary for the purposes of that business; or
(b) terminate on any conditions the Treasurer considers appropriate the employment of a person who, immediately before the sale day, was employed by TOTE Tasmania or the TOTE subsidiary for the purposes of that business.
(3) Before transferring or terminating the employment of a person under subsection (2) , the Treasurer is to consult with the person in any manner the Treasurer considers appropriate including, but not limited to, consultation with the representatives of the person or the employee organisation to which the person belongs.
(4) In terminating the employment of a person under subsection (2) , the Treasurer is to do so subject to, and in accordance with, any relevant contract, award or agreement.
(5) On receipt of an order under subsection (2) , TOTE Tasmania or the TOTE subsidiary is to give to each person whose employment is transferred or terminated by the order written notice of that transfer or termination.
(6) On the sale day, or on the day specified in the order under subsection (2) as the day on which the employment of a person is transferred –
(a) if the order transfers the employment to the purchaser, that person becomes an employee of the purchaser and the purchaser becomes the employer of that person; and
(b) that person ceases to be an employee of TOTE Tasmania or the TOTE subsidiary.
(7) A transferred employee –
(a) is taken to have been employed by the purchaser for the same remuneration as he or she was receiving immediately before the transfer; and
(b) except where an award, agreement or law otherwise provides, retains all accrued entitlements as if employment as an employee of the purchaser were a continuation of employment with TOTE Tasmania or the TOTE subsidiary; and
(c) is entitled to claim those entitlements against the purchaser; and
(8) An award or agreement 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, except where another award or agreement or any law provides otherwise.
(9) The period of service with TOTE Tasmania, or with the TOTE subsidiary and TOTE Tasmania, (including service the transferred employee is taken to have completed with TOTE Tasmania) of a person who becomes a transferred employee is taken to be service with the purchaser.
(10) Nothing in this section prevents any of the terms of employment of a transferred employee being altered by an award, agreement or law after he or she becomes a transferred employee.
(11) If an order under subsection (2) terminates the employment of a person employed by TOTE Tasmania or a TOTE subsidiary –
(a) that employment is terminated immediately before the sale day or on the day specified in the order; and
(12) An order under subsection (2) is not a statutory rule.
16
Long service leave if business sold
16 Long service leave if business sold
(1) In this section –
transferred employee means a person whose employment with TOTE Tasmania, or a TOTE subsidiary, is transferred by reason of an order made under section 15(2)(a) and the operation of section 15(6) .
(3) In calculating the period of service a transferred employee has completed with the purchaser for the purposes of calculating his or her entitlement to long service leave under any Act, award or agreement, the transferred employee is taken to have completed, on the day on which he or she becomes the employee of the purchaser, a period of service with the purchaser calculated in accordance with the following formula:
where:
Calculated service is the period of service the transferred employee is taken to have completed with the purchaser on the day on which he or she becomes the employee of the purchaser;
S is the total period of service the transferred employee has completed with TOTE Tasmania, or the TOTE subsidiary and TOTE Tasmania, (including service the transferred employee is taken to have completed with TOTE Tasmania) immediately before the sale day;
P is the period of service that would have been required to be completed by the transferred employee to be entitled to long service leave under the relevant Act, award or agreement if the transferred employee had always been an employee of the purchaser.
17
Superannuation if business sold
17 Superannuation if business sold
If the Treasurer makes an order under section 15(2)(a) on the sale of the business of TOTE Tasmania or a TOTE subsidiary transferring to the purchaser the employment of a person, the Minister administering the Retirement Benefits Act 1993 is to make a declaration under regulation 3(3) of theRetirement Benefits Regulations 2005 declaring the agreement for that sale to be a prescribed arrangement for the purposes of those regulations.
Division 3
Transfer of remaining business of TOTE Tasmania or TOTE subsidiary to Crown
Division 3 Transfer of remaining business of TOTE Tasmania or TOTE subsidiary to Crown
18
Transfer of remaining business to Crown
18 Transfer of remaining business to Crown
(1) In this section –
transfer day means the day specified in an order under subsection (2) as the day on which the transfer of the business of TOTE Tasmania, or of a TOTE subsidiary, to which the notice relates takes effect;
transferring business means the business of TOTE Tasmania or of a TOTE subsidiary that is the subject of an order under subsection (2) .
(2) If the Treasurer sells only a part of the business of TOTE Tasmania or of a TOTE subsidiary under section 5 and a further part of that business remains unsold, the Treasurer, by order published in the Gazette, may –
(a) transfer to the Crown the whole or any part of the remaining business of TOTE Tasmania or of the TOTE subsidiary; and
(b) specify the day on which that transfer takes effect; and
(c) specify conditions relating to that transfer; and
(d) provide for any matter that is incidental to that transfer.
(3) An order under subsection (2) may be made in anticipation of the sale of the business of TOTE Tasmania or of a TOTE subsidiary.
(4) On the transfer day –
(a) any business, other than a liability, of TOTE Tasmania or of the TOTE subsidiary that is specified in, and transferred by, the order vests in the Crown; and
(b) any business of TOTE Tasmania or of the TOTE subsidiary that is a liability and is specified in, and transferred by, the order becomes the liability of the Crown.
(5) Except as otherwise provided in an order under subsection (2) , on and after the transfer day the following provisions apply:
(a) a reference in an existing document to TOTE Tasmania or the TOTE subsidiary, or the board of directors of TOTE Tasmania or the TOTE subsidiary, in relation to the transferring business is taken, where appropriate, to be or to include a reference to the Crown;
(b) a legal proceeding that could have been instituted by or against TOTE Tasmania or the TOTE subsidiary immediately before the transfer day and that relates to the transferring business may be instituted by or against the Crown;
(c) a legal proceeding instituted by or against TOTE Tasmania or the TOTE subsidiary that relates to the transferring business and is pending immediately before the transfer day may be continued by or against the Crown;
(d) a document served on TOTE Tasmania or the TOTE subsidiary in respect of a legal proceeding referred to in paragraph (c) is taken to have been served on the Crown;
(e) a judgment or order of a court obtained by or against TOTE Tasmania or the TOTE subsidiary in relation to the transferring business may be enforced by or against the Crown but may not be enforced by or against TOTE Tasmania or the TOTE subsidiary;
(f) a contract made by TOTE Tasmania or the TOTE subsidiary relating to the transferring business but not performed or discharged before the transfer day is taken to have been made by the Crown.
(6) If any dispute arises –
(a) as to whether any business of TOTE Tasmania or of a TOTE subsidiary is transferring business; or
(b) as to whether any, or any part of any, contract relates to transferring business –
the Treasurer may determine the matter and is to provide TOTE Tasmania or the TOTE subsidiary with written notice of that determination.
(7) The determination of the Treasurer under subsection (6) is final and binding on TOTE Tasmania or the TOTE subsidiary and on the Crown.
(8) An order under subsection (2) is not a statutory rule.
19
Arrangements for employees if business transferred
19 Arrangements for employees if business transferred
(1) In this section –
transfer day means the day specified in an order under section 18(2) as the day on which the transfer of the business of TOTE Tasmania, or of a TOTE subsidiary, to which the notice relates takes effect.
(2) If the business of TOTE Tasmania or of a TOTE subsidiary is transferred to the Crown under section 18 , the Treasurer, by order provided to TOTE Tasmania or the TOTE subsidiary, may terminate on any conditions the Treasurer considers appropriate the employment of a person who, immediately before the transfer day, was employed by TOTE Tasmania or the TOTE subsidiary for the purpose of that business.
(3) In terminating the employment of a person under subsection (2) , the Treasurer is to do so subject to, and in accordance with, any relevant contract, award or agreement.
(4) On receipt of an order under subsection (2) , TOTE Tasmania or the TOTE subsidiary is to give to each person whose employment is terminated by the order written notice of that termination.
(5) If an order under subsection (2) terminates the employment of a person employed by TOTE Tasmania or a TOTE subsidiary –
(a) that employment is terminated immediately before the transfer day or on the day specified in the order; and
(6) An order under subsection (2) is not a statutory rule.
Division 4
Deregistration of TOTE Tasmania or TOTE subsidiary
Division 4 Deregistration of TOTE Tasmania or TOTE subsidiary
20
Deregistration of TOTE Tasmania
20 Deregistration of TOTE Tasmania
(1) In this section –
business of TOTE Tasmania includes the shares in, and the business of, each TOTE subsidiary.
(2) After the business of TOTE Tasmania has been sold, the Treasurer may apply, or require TOTE Tasmania to apply, for the deregistration of TOTE Tasmania under section 601AA of the Corporations Act.
(3) After the business of a TOTE subsidiary has been sold, the Treasurer may require TOTE Tasmania or the TOTE subsidiary to apply for the deregistration of the TOTE subsidiary under section 601AA of the Corporations Act.
(5) TOTE Tasmania or a TOTE subsidiary is to comply with a requirement under subsection (2) or (3) .
Part 5
Miscellaneous
Part 5 Miscellaneous
21
Power to disclose information
21 Power to disclose information
(1) In this section –
potential purchaser means a person determined by the Treasurer to be a potential purchaser of –
(a) the shares in TOTE Tasmania or in a TOTE subsidiary; or
(b) the business of TOTE Tasmania or of a TOTE subsidiary.
(2) Each of the following persons may disclose information to one or more of the other following persons, or to one or more of the persons referred to in subsection (3)(a) , (b) , (c) or (e) , as the person considers necessary or convenient for the purposes of facilitating a sale under section 5 of shares in, or the business of, TOTE Tasmania or a TOTE subsidiary:
(a) TOTE Tasmania;
(b) a director or employee of TOTE Tasmania;
(c) a TOTE subsidiary;
(d) a director or employee of a TOTE subsidiary;
(e) the Treasurer;
(f) a person providing professional advice to the Treasurer on any matter relating to such a sale;
(g) the Auditor-General;
(h) a person, or a person of a class, authorised by the Treasurer, in writing, to disclose information.
(3) A person to whom information is disclosed under this section must not disclose that information to a person who is not –
(a) the potential purchaser; or
(b) a director, agent or employee of the potential purchaser; or
(c) a person providing professional advice to the potential purchaser on any matter relating to the potential purchase; or
(1) The Auditor-General is to review all sales under section 5 as he or she considers appropriate and lay a report of his or her findings before each House of Parliament within 120 days after –
(a) the sale day if the shares in TOTE Tasmania are sold under section 5(1)(a) ; or
(b) the day fixed by proclamation made under section 32(2)(b) if TOTE Tasmania has been deregistered pursuant to section 20 .
(2) For the purposes of enabling the Auditor-General to conduct the review and make the report in accordance with subsection (1) , the Treasurer is to ensure that the Auditor-General –
(a) is notified of the sale day, or the day fixed by proclamation made under section 32(2)(b) , either before or on that day or as soon as is reasonably practicable after that day; and
(b) is given access to all information the Auditor-General considers relevant.
25
Protection for acts done under this Act
25 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.
26
Excluded matters under Corporations Act
26 Excluded matters under Corporations Act
For the purposes of section 5F of the Corporations Act, the following matters are declared to be excluded matters in relation to the whole of that Act:
(a) any matter included in this Act;
(b) any thing done or omitted to be done for the purposes of a matter included in this Act.
(2) The Treasurer, 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 5 .
(3) An order under subsection (2) is not a statutory rule.
28
Offence by TOTE Tasmania or TOTE subsidiary
28 Offence by TOTE Tasmania or TOTE subsidiary
(1) If TOTE Tasmania or a TOTE subsidiary commits an offence against this Act, each director and other person concerned in the management of TOTE Tasmania or the TOTE subsidiary is taken to have also committed the offence and may be convicted of the offence unless the person establishes that –
(a) the act or omission constituting the offence took place without the director or other person's knowledge or consent; or
(b) the director or other person used all due diligence to prevent that act or omission by TOTE Tasmania or the TOTE subsidiary.
(2) A director or other person referred to in subsection (1) may be convicted of an offence against this Act whether or not TOTE Tasmania or the TOTE subsidiary is charged with or convicted of the offence.
29
Regulations
29 Regulations
(1) The Governor may make regulations for the purposes of this Act.
(2) Without limiting the generality of subsection (1) , the regulations may provide for all matters relating to, or necessary or convenient to be provided for in connection with, any one or more of the following matters:
(b) a transfer of the business of TOTE Tasmania or of a TOTE subsidiary to the Crown under section 18 ;
(c) the arrangements relating to persons employed by TOTE Tasmania or by a TOTE subsidiary who are affected by a sale under section 5 or a transfer of the business of TOTE Tasmania or of the TOTE subsidiary to the Crown under section 18 ;
(d) the deregistration under the Corporations Act of TOTE Tasmania or a TOTE subsidiary.
(3) Despite section 26 , the regulations may declare for the purposes of section 5F of the Corporations Act that any matter included in this Act, or any act done or omitted for the purposes of a matter included in this Act, is not declared to be an excluded matter in relation to –
(a) the whole, or any provision, of that Act; or
(b) that Act other than to an extent specified in the regulations.
(4) The regulations may be made so as to apply differently according to such factors as are specified in the regulations.
(5) 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.
(6) The regulations may authorise any matter to be from time to time approved, determined, applied or regulated by the Treasurer.
(7) The regulations may contain provisions of a savings or transitional nature consequent on –
(c) a transfer of the business of TOTE Tasmania or of a TOTE subsidiary to the Crown under section 18 .
(8) Regulations made under subsection (7) 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.
(a) the administration of this Act is assigned to the Treasurer; and
(b) the department responsible to the Treasurer in relation to the administration of this Act is the Department of Treasury and Finance.
31
Savings and transitional provisions
31 Savings and transitional provisions
(1) Despite the completion of a sale under section 5(1)(a) of the shares in TOTE Tasmania, the Auditor-General is to continue to act as auditor of TOTE Tasmania in respect of a financial year completed before that sale.
(2) After a sale under section 5(1)(a) of the shares in TOTE Tasmania, TOTE Tasmania must –
(a) allow the Auditor-General to access documents and information, and to do all other things, necessary for the purposes of complying with subsection (1) ; and
(b) provide, in respect of a financial year completed before that sale, copies of any financial statement, directors' report and auditor's report and the annual return as required by the Corporations Act to the Treasurer unless that financial statement, directors' report, auditor's report or annual return has previously been provided under section 13 of theTOTE Tasmania Act 2000 as in force on the day on which this Act commences.
Penalty: Fine not exceeding 200 penalty units.
(3) The Treasurer is to cause a copy of any financial statement, directors' report, auditor's report or annual return provided under subsection (1) to be laid before each House of Parliament within 7 sitting-days after receiving it.
32
Repeals
32 Repeals
(1) In this section –
prescribed legislation means the following Acts and proclamations:
(2) The prescribed legislation is repealed and revoked –
(a) if the shares in TOTE Tasmania are sold under section 5(1)(a) , on the sale day; or
(b) if TOTE Tasmania has been deregistered pursuant to section 20 , on the day fixed by proclamation made under subsection (3) .
(3) On the recommendation of the Treasurer, the Governor, by proclamation, may repeal and revoke the prescribed legislation.
(4) Before making a recommendation for the purpose of subsection (3) , the Treasurer is to be satisfied that TOTE Tasmania has been deregistered pursuant to section 20 .
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the TOTE Tasmania (Sale) Act 2009 .
2 Commencement
2 Commencement
This Act commences on the day on which this Act receives the Royal Assent.
3 Interpretation
3 Interpretation
In this Act, unless the contrary intention appears –
asset includes any real and personal property, operation, right and licence;
business, in relation to TOTE Tasmania or a TOTE subsidiary, has the meaning given by section 4 ;
contract includes an agreement and an arrangement;
legal proceeding includes arbitration and mediation;
liability means an actual, contingent or prospective liability, duty or obligation;
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 TOTE subsidiary; and
(d) any other rights;
right means a right, power, privilege or immunity, whether present or future and whether vested or contingent;
sale day means –
(a) in relation to the sale of shares in TOTE Tasmania or in a TOTE subsidiary under section 5(1)(a) or (c) , the day on which those shares are acquired by the purchaser; or
The Act frames these changes around discrete legal instruments: orders by the Treasurer (many of which are not statutory rules, see ss 4(3), 15(12), 18(8), 27(3)), Gazettal for transfers to the Crown (s 18(2)), written directions to the companies (s 7(2)), and certificates for tax exemption (s 9(3)). Those instruments determine who decides, who pays, and what assets and liabilities move on specified days defined as "sale day" or "transfer day" (s 3 definitions; s 18(1)).
Main concepts
The Act constructs a limited menu of legal concepts and transactional building blocks that determine how sale transactions are implemented and what legal consequences follow.
Sale authority and scope: The Treasurer may sell one or more of four categories listed in s 5(1): shares in TOTE Tasmania, the business of TOTE Tasmania, shares in a TOTE subsidiary, or the business of a TOTE subsidiary. The Act applies Part 3 to share sales (s 10), and Part 4 to business sales (s 13).
Sale day and transfer day: The Act defines temporal triggers. "Sale day" is the day on which shares are acquired or the business vests in the purchaser (s 3). "Transfer day" is the day specified in an order under s 18(2) for transfers of remaining business to the Crown (s 18(1)). These dates determine when statutory rights and obligations change hands and when transitional rules apply (e.g. ss 11-12, 14-16, 18(4)-(5)).
Business definition and exclusions: "Business" encompasses the enterprise, goodwill, assets, liabilities and parts of the enterprise (s 4(1)). The Treasurer can exclude a part of the business or exclude specific provisions of the Act from applying to parts of the business, by order that is a statutory rule (s 4(2)-(4)). That creates a mechanism for carving out assets or operations from the statutory sale regime.
Treasurer discretion and procedural powers: The Treasurer has broad discretions: to set sale conditions (s 5(2)), to act to achieve a "fair and reasonable price" (s 5(3)), to enter into contracts and transfer shares or business in connection with sales (s 6), to give written directions that must be complied with by TOTE Tasmania and subsidiaries (s 7), and to amend company constitutions despite contrary provisions (s 8). The Treasurer also may make orders to transfer unsold parts of the business to the Crown (s 18(2)) and to transfer or terminate employees on sale (s 15(2)).
Employee transitional treatment: The Act contains bespoke transitional entitlements and mechanics. For employees covered by the Long Service Leave (State Employees) Act 1994 immediately before a share sale, that Act ceases to apply to the employer on sale day, while a formula fixes the employee's service credit with the purchaser for long service leave purposes (s 11). For business transfers and transferred employees, the Long Service Leave Act ceases to apply to transferred employees on and after the sale day and a similar formula operates on transfer to the purchaser (s 16). Superannuation consequences require the Minister administering the Retirement Benefits Act 1993 to make a prescribed-arrangement declaration using the Retirement Benefits Regulations (ss 12, 17).
Information sharing and confidentiality: The Act authorises disclosure between enumerated parties for sale facilitation (s 21(2)), but imposes a confidentiality restriction on recipients limiting onward disclosure to a defined class of persons and prescribes a fine up to 200 penalty units for breach (s 21(3)).
Protections and limitations on remedies: Acts or omissions done in good faith under the Act do not, except as expressly provided or agreed, terminate contracts or give rise to claims, breaches or releases, and do not constitute civil or criminal wrongs or breaches of confidence (s 25). That constrains post-sale claims arising from implementation steps taken under the Act.
Exclusions under other statutes: The Act declares matters included in it, and acts done for those purposes, to be "excluded matters" for s 5F of the Corporations Act (s 26). It also authorises certain contracts, if approved by order published in the Gazette, to be treated as authorised for the purposes of the Trade Practices Act 1974 and the Competition Policy Reform (Tasmania) Act 1996 (s 27).
Regulatory instruments and review: The Governor may make regulations (s 29), which can cover, among other things, offences and fines, savings and transitional provisions, and may declare that an Act matter is not an excluded matter for s 5F of the Corporations Act (s 29(3)). The Auditor-General must review sales and lay a report to Parliament within 120 days after specified trigger events (s 24).
These concepts form a compact statutory framework that prioritises executive facilitation of sale transactions while embedding specific protections and transitional mechanics for employees, creditors and purchasers. The Act relies on several external statutory references to determine corporate form, superannuation treatment, and long service leave calculations (see ss 3, 11, 12, 16, 17, 20, 26-27, 29).
Who it affects
The Act creates discrete roles and obligations for a defined set of actors. Identifying these parties is essential for compliance and transactional planning.
The Treasurer: Central decision-maker. The Treasurer may authorise and implement sales (s 5), enter contracts and transfer shares or business (s 6), give written directions that companies must follow (s 7), amend company constitutions for sale facilitation (s 8), exempt State tax on sale documents by certificate (s 9), transfer remaining business to the Crown (s 18), and make orders affecting employees (s 15, s 19). The Treasurer also recommends repeal of prescribed legislation (s 32(3)) and is required to provide the Auditor-General with information and access for review (s 24(2)). The Treasurer holds significant administrative, contractual and regulatory discretion under the Act.
TOTE Tasmania and TOTE subsidiaries: Subject entities. The Act authorises sale of their shares or business (s 5). They must comply with written directions from the Treasurer (s 7(3)), implement orders transferring or terminating employees (s 15(2), s 19(2)), give written notices to affected employees (ss 15(5), 19(4)), and comply with duties to provide documents to the Auditor-General after sale (s 31(2)). The Treasurer may require them to apply for deregistration under s 601AA of the Corporations Act after sale (s 20). Directors and managers of these companies face potential criminal or civil liability under the Act for offences committed by the company unless they can establish defences (s 28).
Directors and officers: Directors and persons concerned in management are specifically brought into individual liability where the company commits an offence under the Act (s 28(1)-(2)). They bear a burden to establish they lacked knowledge or consent, or exercised due diligence to prevent the act or omission. They also may be required to act to enable compliance with Treasurer directions (s 7(4)).
Employees and transferred employees: Employees of TOTE Tasmania or subsidiaries who are affected by a sale or transfer are covered by detailed rules. For share sales where the Long Service Leave (State Employees) Act 1994 applied immediately before sale day, that Act ceases to apply on sale day and a formula fixes service for long service leave entitlements (s 11). If the business is sold, the Treasurer may order transfer or termination of employment; transferred employees become employees of the purchaser on the date specified and retain accruals and entitlements subject to awards or agreement (s 15). For transferred employees the Long Service Leave Act ceases to apply to them on and after the sale day and a formula applies (s 16). Superannuation arrangements require declarations under the Retirement Benefits Regulations for transfers (ss 12, 17). Employees must receive written notice of transfer or termination (ss 15(5), 19(4)).
Potential purchasers and purchasers: The Act defines "potential purchaser" (s 21(1)) and permits limited disclosure of information to certain persons for sale facilitation (s 21(2)). Purchasers receive, by operation of the Act, assignment of contracts, rights to sue or be sued in relation to transferring business, and vesting of assets and liabilities where the Act prescribes those effects (ss 14(2)(a)-(f), 18(4)-(5)). Purchasers must be aware of the Treasurer's discretion to set sale conditions (s 5(2)) and the Treasurer's duty to have regard to achieving a fair and reasonable price (s 5(3)).
Auditor-General: Empowered and obliged to review sales and lay a report before each House of Parliament within 120 days of defined triggering events, and entitled to access relevant information and documents (s 24(1)-(2)). The Auditor-General also continues as auditor in respect of financial years completed before a share sale (s 31(1)) and can call for documents from the post-sale company (s 31(2)).
Crown and public account: Where the Treasurer transfers remaining unsold business to the Crown, the Crown takes on assets or liabilities specified in the order (s 18(4)). Sale proceeds are to be paid into the Public Account (s 23), meaning the public purse is the recipient of sale proceeds.
Professional advisers and authorised third parties: The Act permits disclosure to professional advisers to the Treasurer and to potential purchasers, and permits the Treasurer to authorise persons or classes of persons in writing to disclose or to receive information (s 21(2)-(3)). Those recipients are bound by confidentiality restrictions and face statutory penalties for unauthorised disclosure (s 21(3)).
Regulatory bodies and statutes referenced: The Act interacts with the Corporations Act (definition of subsidiary, deregistration under s 601AA), the Long Service Leave (State Employees) Act 1994, Retirement Benefits Act 1993 and its regulations, the Trade Practices Act 1974 and the Competition Policy Reform (Tasmania) Act 1996 (s 27). The Rules Publication Act 1953 is referenced for the meaning of "statutory rule" (s 3).
Collectively, these actors face a combination of statutory commands (must comply with directions, provide notices, accept orders), contractual change (contracts treated as if made by purchaser, ss 14(2)(f), 18(5)(f)), confidentiality and disclosure constraints with penalty exposure (s 21), and special transitional calculations for employee entitlements (ss 11, 16). The Treasurer is the primary decision-making node, and many effects are implemented by Treasurial order or certificate.
Key duties and rights
This Act prescribes duties for public actors and rights for purchasers and employees, implemented chiefly through orders, directions and statutory operation on sale or transfer days.
Duties of the Treasurer
Authority and obligation to sell: The Treasurer may sell shares or businesses (s 5(1)) and, when exercising the power of sale, must have regard to achieving a fair and reasonable price (s 5(3)). The Treasurer may set conditions of sale as considered appropriate (s 5(2)).
Facilitating powers: The Treasurer may enter into contracts, transfer shares and businesses, and take any other action considered necessary or convenient for purposes of a sale (s 6).
Directions to entities: The Treasurer may give written directions to TOTE Tasmania or a TOTE subsidiary to take specified or all reasonable steps to facilitate a sale, and those entities must comply (s 7(1)-(3)); boards and CEOs may take necessary actions to comply (s 7(4)).
Constitutional amendment: The Treasurer can amend or substitute the constitutions of TOTE Tasmania or a TOTE subsidiary notwithstanding any contrary provision (s 8(2)), which is a procedural duty to execute governance changes the Treasurer deems necessary to facilitate sale.
Tax concessions: The Treasurer may determine that State tax is not payable in respect of documents prepared for the sale and must provide a certificate to the person who would otherwise be required to pay that tax (s 9(2)-(3)).
Employee orders and transfers: On sale of business, the Treasurer may order transfer or termination of employment and must consult with the person or their representatives before doing so (s 15(2)-(4)). The Treasurer may also terminate employment when business is transferred to the Crown (s 19(2)-(4)).
Transfer to Crown: The Treasurer may, by Gazetted order, transfer unsold parts of the business to the Crown, specify the transfer day and conditions, and provide for incidental matters (s 18(2)-(3)).
Duties of TOTE Tasmania and subsidiaries
Compliance with directions and orders: TOTE Tasmania and subsidiaries must comply with written directions (s 7(3)) and with written Treasury requirements to apply for deregistration (s 20(2)-(3), (5)).
Notification and consultation duties: When the Treasurer orders transfer or termination of employment, companies must give written notice to affected persons (ss 15(5), 19(4)).
Cooperation with audits and document provision: Following share sales, TOTE Tasmania must allow the Auditor-General to access documents and provide financial statements, directors’ and auditors’ reports and annual returns as required (s 31(2)-(3)). Failure to comply with prescribed obligations under s 31(2) attracts a penalty not exceeding 200 penalty units.
Rights and effects for purchasers
Assignment and vesting by operation: Upon sale day, contracts relating to the transferring business but not performed are taken to have been made by the purchaser (s 14(2)(f), s 18(5)(f)). The purchaser may institute or continue legal proceedings that could have been instituted by or against TOTE Tasmania in relation to the transferring business (s 14(2)(b)-(c); s 18(5)(b)-(c)). Judgments and orders can be enforced by or against the purchaser (s 14(2)(e); s 18(5)(e)). Assets and liabilities specified in orders transferring business to the Crown vest in the Crown as assets or liabilities as applicable (s 18(4)).
Employee continuity: A transferred employee is taken to have been employed by the purchaser for the same remuneration immediately prior to transfer and retains accrued entitlements as if employment with the purchaser were a continuation (s 15(7)(a)-(b)). Transferred employees are entitled to claim those entitlements against the purchaser (s 15(7)(c)).
Employee rights and entitlements
Preservation of accruals: Transferred employees retain accrued entitlements and service continuity is recognised for purposes such as long service leave calculation by a statutory formula (ss 15(7), 11, 16). However, transferred employees are not entitled to compensation for the change of employer except as provided by specified superannuation statutes (s 15(7)(d); s 15(11)(b)).
Consultation: Before transfer or termination of employment, the Treasurer must consult the person in any manner the Treasurer considers appropriate (s 15(3)).
Confidentiality and disclosure rights/duties
Broad authorised disclosures: A defined list of persons (including the Treasurer, company directors, employees, advisers, Auditor-General and authorised persons) may disclose information to facilitate a sale (s 21(2)).
Restriction on onward disclosure: Recipients must not disclose information to persons outside an enumerated class unless authorised in writing by the Treasurer (s 21(3)). There is a statutory penalty for breach (s 21(3), penalty: fine not exceeding 200 penalty units).
Protections and limits on remedies
Good-faith protection: Actions or omissions done in good faith under or authorised by the Act do not, except as otherwise provided, terminate contracts, give rise to rights to terminate contracts, release sureties, constitute breaches or wrongs, or constitute breaches of confidence (s 25). That means parties affected by implementation steps must look to the Act’s express provisions rather than implicit contractual remedies for many disputes arising from good-faith implementation.
Regulatory and sanctioning instruments
Regulations may impose offences and fines: The Governor may make regulations that create offences with fines up to 50 penalty units and continuing fines up to 10 penalty units per day (s 29(5)). Regulations can address sale procedures, transfer to Crown, employee arrangements and deregistration (s 29(2)).
These duties and rights allocate decision-making power to the Treasurer, create specific entitlements for transferred employees and purchasers, and limit remedial avenues for actions taken in good faith under the Act. The Act therefore both authorises change in property and contractual relations and constrains downstream disputes by defining statutory mechanisms for transfer and review.
Penalties and enforcement
The Act contains a limited set of explicit penalties and a broader architecture that affects enforcement and remedies.
Express criminal or monetary penalties
Confidentiality breach: A person who receives information under s 21 and who discloses it to an unauthorised third party commits an offence punishable by a fine not exceeding 200 penalty units (s 21(3); penalty specified in that subsection).
Failure to provide financial documents: Under s 31(2), TOTE Tasmania must provide documents to the Auditor-General in respect of financial years completed before a sale. Subsection (2) concludes with "Penalty: Fine not exceeding 200 penalty units." That creates an enforcement lever to ensure documents are produced to support the Auditor-General’s mandated review (s 24).
Regulation-created offences: The Governor may make regulations that make contraventions of those regulations offences with penalties up to 50 penalty units; for continuing offences, a further fine up to 10 penalty units per day may be imposed (s 29(5)). The regulations may therefore create a discretised range of sanctions tailored to specific procedural obligations under the Act.
Corporate officer liability
Attribution of corporate offences: If TOTE Tasmania or a TOTE subsidiary commits an offence against the Act, each director and other person concerned in management is taken also to have committed the offence and may be convicted unless they establish specified defences (s 28(1)). The defences are that the act or omission occurred without their knowledge or consent, or that they used all due diligence to prevent it (s 28(1)(a)-(b)). A director may be convicted regardless of whether the company itself is charged (s 28(2)). This shifts enforcement focus from corporate entity to individual officers and places a burden on officers to demonstrate due diligence.
Administrative enforcement and finality
Mandatory compliance with Treasurer directions: TOTE Tasmania and subsidiaries must comply with written directions from the Treasurer issued to facilitate a sale (s 7(2)-(3)). The Act does not specify a separate penalty for non-compliance with a direction, but the mandatory duty creates a legal obligation that can lead to administrative enforcement, orders compelling compliance, and potential derivative exposure under s 28 for directors.
Treasurer determinations final and binding: Where the Treasurer determines whether a particular contract or business is a "transferring business" for s 18 transfers, that determination is final and binding on TOTE Tasmania, the subsidiary and the Crown (s 18(6)-(7)). Finality reduces avenues for judicially mediated disputes over that statutory classification, although the Act does not expressly oust judicial review of legality.
Protections that affect enforcement
Good-faith immunity from civil and criminal wrongs: Acts or omissions done in good faith under, or authorised by, the Act do not constitute civil or criminal wrongs or breaches of contract or confidence, except where the Act otherwise expressly provides or the person has agreed to provide remedies (s 25). That limits the viability of many civil claims that would otherwise arise from steps taken under statutory authority, and therefore shapes enforcement risk by shrinking private litigation options.
Enforcement oversight
Parliamentary reporting via Auditor-General: The Auditor-General is required to review sales and lay a report before each House of Parliament within 120 days after specified trigger events (s 24(1)). The Auditor-General’s review carries political and public accountability implications and can be a practical enforcement mechanism by exposing shortcomings, but the Act does not convert Auditor-General findings directly into criminal or civil consequences.
Regulatory discretion and non-statutory rule instruments
Orders not statutory rules: Several orders authorised by the Act are expressly not statutory rules (e.g. s 15(12), s 18(8), s 27(3)). That affects the nature of parliamentary oversight and the formality of the instruments used to implement the Act. Enforcement of non-statutory orders will therefore rely more on administrative compliance and political accountability than on the procedural protections typically associated with statutory rules.
In sum, the Act deploys a mix of specified monetary penalties (notably for unauthorised disclosure and failure to provide audited documents), corporate-officer exposure for corporate offences, administrative commands binding on companies, final Treasury determinations in specified contexts, and a public accountability mechanism via the Auditor-General. It also narrows private enforcement by protecting good-faith acts done under the Act from constituting civil or criminal wrongs except where expressly provided.
How it interacts with other laws
The Act deliberately references and modifies the operation of several existing statutes and regulatory regimes, creating interactions that practitioners must manage.
Corporations Act
Definition and deregistration: The Act defines a "TOTE subsidiary" according to the Corporations Act (s 3). It authorises application for deregistration of TOTE Tasmania or a subsidiary under s 601AA of the Corporations Act after the business has been sold (s 20(2)-(3)). The Treasurer can require those applications and companies must comply (s 20(4)-(5)). This creates a statutory pathway from sale to corporate deregistration under the Corporations Act framework.
Excluded matters: Section 26 expressly declares for the purposes of s 5F of the Corporations Act that matters included in this Act and acts done for their purposes are excluded matters. That affects how certain Corporations Act provisions interact with this Act and the extent to which Corporations Act constraints apply. However, s 29(3) allows regulations to declare that some matters included in the Act are not excluded matters for s 5F, creating a regulatory override possibility.
Long Service Leave (State Employees) Act 1994
The Long Service Leave Act’s application to employers and employees is explicitly modified on share sales and business transfers. Where the Long Service Leave Act applied immediately before sale of shares, it ceases to apply to TOTE and its employees on sale day, and service for long service leave is calculated by formula (s 11). For transferred employees after a business sale, the Long Service Leave Act does not apply to transferred employees on and after the sale day and a similar formula determines credited service for calculations under awards or agreements (s 16). These bespoke rules displace normal statutory application of the Long Service Leave Act in the sale context.
Retirement Benefits Act 1993 and Retirement Benefits Regulations 2005
Where shares or business are sold and the Treasurer agrees, the Minister administering the Retirement Benefits Act 1993 is to make a declaration under reg 3(3) of the Retirement Benefits Regulations 2005 declaring the agreement a prescribed arrangement for the purposes of those regulations (ss 12, 17). This integrates superannuation treatment into the sale mechanics and ensures relevant superannuation obligations and transfers are regulated under the Retirement Benefits statutory framework.
Section 27(1) authorises entering into and giving effect to a contract, or class of contracts, if approved under s 27(2), for the purposes of the Trade Practices Act 1974 and the Competition Policy Reform (Tasmania) Act 1996. The Treasurer, by Gazette order, may approve a contract or class of contracts relating to a sale (s 27(2)). This provides a mechanism to immunise certain transaction structures from competition law issues where the Treasurer deems it necessary.
Rules Publication Act 1953 and statutory rules
The Act uses the Rules Publication Act to define "statutory rule" (s 3) and expressly creates some orders as statutory rules (s 4(3)-(4)), while other orders are expressly not statutory rules (e.g. ss 15(12), 18(8), 27(3)). This differential treatment determines the procedural regime and parliamentary oversight applicable to different instruments under the Act.
Administrative Arrangements Act 1990
Until otherwise assigned by order under s 4 of the Administrative Arrangements Act 1990, administration of this Act is assigned to the Treasurer and the Department of Treasury and Finance (s 30). The Administrative Arrangements Act governs the executive allocation of administrative responsibility.
Public Account and public finance law
Proceeds of sale are to be paid into the Public Account (s 23). That integrates sale proceeds with public finance law and budgeting processes.
Auditor-General responsibilities
The Auditor-General’s review function under s 24 interacts with the Auditor-General’s general statutory role and audit powers. The Treasurer must notify and give access to information as the Auditor-General deems relevant (s 24(2)).
Interplay and potential tensions
The Act modifies the operation of employment, superannuation and corporate law in narrowly defined sale contexts, often by statutory override or by prescribing special calculation methods (ss 11, 16). It also creates a bespoke confidentiality regime (s 21) that intersects with privacy law and obligations under other statutes. Section 26’s declaration of excluded matters under the Corporations Act limits Corporations Act overlap, but s 29(3) reserves to regulations the power to reverse that exclusion for specified parts of the Corporations Act, which may alter legal exposure. Practitioners must therefore map each transaction against these cross-references to determine which statutory regime applies and whether regulatory instruments or orders under the Act apply to alter typical statutory treatment.
Amendment history
The text provided contains one explicit amendment note and several internal references to other instruments and schedules that create consequential amendments.
Section 23 amendment: The Act as presented includes an annotation that s 23 was amended by No. 4 of 2017, Schedule 1, applied 01 Jul 2019. The amended s 23 now provides that proceeds of a sale under s 5 are to be paid into the Public Account. The annotation indicates a post-enactment modification to the destination of sale proceeds, but the text of the amending instrument is not included in the provided material beyond that note (s 23 annotation).
Schedule 1: The Act contains a Schedule 1 headed "Consequential Amendments" and refers to the TOTE Tasmania Act 2000 (see s 33 and Schedule 1 heading). The schedule is titled to indicate consequential amendments, particularly in relation to the TOTE Tasmania Act 2000, but the full text of the consequential amendments is not reproduced in the text provided beyond the reference (s 33; Schedule 1 heading).
Repeals contingent on sale or deregistration: Section 32 creates contingent repeals of "prescribed legislation" (defined in s 32(1) to include the TOTE Tasmania Act 2000, the TOTE Tasmania (Transitional and Consequential Provisions) Act 2000, and two proclamations under those Acts) which are repealed and revoked either on the sale day if shares are sold under s 5(1)(a) or on a day fixed by proclamation if TOTE Tasmania has been deregistered pursuant to s 20 (s 32(2)). The Governor may, on the Treasurer's recommendation, repeal and revoke the prescribed legislation by proclamation once the Treasurer is satisfied that TOTE Tasmania has been deregistered (s 32(3)-(4)). Those provisions operate as contingent legislative repeal rather than retroactive amendment.
Regulations and possible future amendment via regulation: Section 29 empowers the Governor to make regulations for the purposes of the Act, including the capacity to declare that matters included in the Act are not excluded matters for s 5F of the Corporations Act (s 29(3)). That is not an amendment to the Act itself, but it permits future regulatory instruments to change the interaction between this Act and the Corporations Act.
No other amendment history or prior versions are provided in the text. The Act commences on Royal Assent (s 2), and the Administrative Arrangements Act may shift administration by order (s 30). Practitioners should consult current consolidated versions and the Tasmanian legislation register for any subsequent amendments beyond the 2017 note indicated in s 23.
Litigation history
The provided text does not contain any judicial decisions or litigation records relating to the Act. There are no cases named in the Act itself and no references to judicial interpretation. Accordingly, the statutory text alone does not present an internal litigation history.
That said, the Act creates several legal configurations that could give rise to disputes, and it builds in mechanisms that affect litigation risk:
Finality of Treasurer determinations: Section 18(6) empowers the Treasurer to determine disputes about whether a particular contract or item of business is "transferring business" and requires the Treasurer to provide written notice of that determination. Section 18(7) then makes the Treasurer’s determination "final and binding" on TOTE Tasmania, the TOTE subsidiary and the Crown. The express finality clause will limit disputation over classification within the statutory scheme, at least as between the parties. The Act does not expressly state whether that finality ousts judicial review, so questions about the scope for judicial challenge to determinations of jurisdictional fact could arise in litigation but are not addressed in the text.
Limits on private causes of action: Section 25 immunises acts or omissions done in good faith under, or authorised by, the Act from constituting breaches of contract or other causes of action, except where the Act otherwise expressly provides or as agreed by the person doing or omitting the thing. That will reduce the number of actionable claims in the wake of good-faith statutory implementation, and could be a live contested point in litigation where claimants allege breach notwithstanding statutory protection.
Officer liability and corporate offences: Section 28 gives rise to independent liability risk for directors and managers when the company commits an offence against the Act. Whether a director has established the statutory defences (lack of knowledge or due diligence) is enforceable in court, so litigation on that point would be a straightforward application of the Act’s provisions.
Confidentiality and disclosure offences: Section 21 creates a penal enforcement option for unauthorised disclosure. Criminal or regulatory proceedings under that provision would be brought if a recipient improperly disclosed material to unauthorised third parties.
Auditor-General reports and parliamentary scrutiny: The Auditor-General’s mandated review (s 24) and access obligations (s 24(2)) could produce findings that catalyse further litigation, administrative action or parliamentary inquiries, although the Act itself contemplates the accuracy and thoroughness of the Auditor-General’s review rather than litigation.
Because the Act expressly constrains some disputes (via s 25 immunity and s 18 finality) while exposing officers to personal liability and recipients to penalty for disclosure, the litigation profile is concentrated in: challenges to Treasurer determinations (to the extent not precluded by finality), enforcement of confidentiality obligations, officer liability prosecutions or proceedings, and cases concerning the application or interpretation of the transitional provisions (e.g. the long service leave formula in ss 11 and 16, entitlement claims against purchasers under s 15(7)). None of these appear in the statutory text as adjudicated, so practitioners must plan on hypothetical litigation risk and consider administrative remedies, statutory defences and evidentiary records.
Gotchas
The Act contains several features that can produce surprising legal or practical consequences unless actively managed.
The Treasurer determines sale conditions (s 5(2)) and may take "any other thing the Treasurer considers necessary or convenient" in connection with the sale (s 6(d)). The Treasurer may amend company constitutions "despite anything to the contrary" in those constitutions (s 8(2)). These are wide powers that can alter corporate governance, contractual rights and transaction terms without express procedural checks beyond consultation obligations in relation to employees (s 15(3)). Practitioners must seek to secure contractual protections or purchaser warranties where constitutional or corporate governance changes could affect value.
Some orders are statutory rules (s 4(4)), but the Act expressly makes other orders not statutory rules (e.g. s 15(12), s 18(8), s 27(3)). Non-statutory orders may have less formal parliamentary oversight and fewer procedural safeguards. Corporate officers should not assume typical statutory rule procedural protections apply to every Treasurer order.
Provisional immunities reduce private remedies (s 25)
The good-faith protection in s 25 immunises many acts or omissions from constituting breaches of contract, civil or criminal wrongdoing, or breaches of confidence. Parties that lose contractual positions as a result of actions taken under statutory authority may have limited private remedies unless the Act expressly preserves them or there is an agreement to the contrary. Purchasers and creditors should consider securing express protections and representations in sale agreements.
Long service leave and superannuation mechanics differ from ordinary law (ss 11, 12, 16, 17)
The Act removes the Long Service Leave (State Employees) Act from operation in certain sale contexts and replaces credited service for long service leave calculations with a statutory formula (ss 11, 16). Superannuation transitions depend on declarations under the Retirement Benefits Regulations 2005 (ss 12, 17). Employers, purchasers and employees must follow these specific statutory calculation and declaration processes. Failure to apply the formula or obtain necessary declarations could create unanticipated disputes.
Confidentiality regime with high penalty and narrow onward disclosure permitted (s 21)
Many parties are authorised to exchange sale-related information (s 21(2)), but recipients are statutorily barred from disclosing information to anyone outside an enumerated class (s 21(3)) and face a penalty up to 200 penalty units for breach. Professional advisers and purchasers must carefully manage information flows and obtain Treasurer authorisation where broader dissemination is required.
Finality of Treasurer’s determinations (s 18(7))
The Treasurer’s determinations on whether something is "transferring business" are "final and binding" (s 18(7)). This reduces commercial certainty where third parties would otherwise contest such classifications in court. Buyers and sellers should seek contractual clarity and reserve the right to require written determinations prior to closing where classification matters materially affect value.
Officer criminal exposure when corporate offences occur (s 28)
Directors and managers may be convicted of offences committed by the company unless they can demonstrate lack of knowledge or due diligence (s 28(1)). Officers should document compliance processes and decisions carefully to preserve defences.
Regulations can alter the interface with the Corporations Act (s 29(3))
Section 29(3) allows regulations to declare that specified matters included in this Act are not excluded matters in relation to the Corporations Act. That means the regulatory environment can be changed without amending the principal Act, creating potential uncertainty for corporate actors unless they monitor subordinate legislation.
Deregistration demands and timing issues (s 20)
The Treasurer may require companies to apply for deregistration under s 601AA of the Corporations Act (s 20). Deregistration timing affects creditors, ongoing contracts and audit obligations. Companies must plan for the timing of financial reporting and the Auditor-General’s continuing audit obligations for prior years (s 31).
Auditor-General oversight timeline tightens post-sale scrutiny (s 24)
The Auditor-General must lay a report within 120 days of the sale day or the day fixed by proclamation in the case of deregistration (s 24(1)). The Treasurer must provide notice and access to information (s 24(2)). Sales should therefore be structured to ensure immediate availability of records and prompt cooperation to avoid findings that could have reputational or political consequences.
Awareness and active management of these features are essential. The Act gives the Treasurer significant unilateral tools to structure and implement sales. Parties on either side of the transaction should draft commercial documentation to anticipate and accommodate the Act’s statutory mechanisms, secure necessary Treasurer approvals or certificates (e.g. s 9 tax determinations), and ensure administrative steps such as Gazettal (s 18(2)) and written notices to employees (ss 15(5), 19(4)) are performed in the proper form and timing.
How to comply
For each principal actor, compliance requires attention to documentary form, timing triggers, consultation duties, confidentiality rules and interaction with other statutes. The following is a practical checklist, tied to the Act’s sections.
For the Treasurer and Treasury legal/transaction teams
Document discretionary decisions: Record the Treasurer’s reasoning with regard to achieving "a fair and reasonable price" (s 5(3)) and the conditions of sale (s 5(2)). Maintain contemporaneous records to support determinations and for the Auditor-General’s review (s 24).
Use formal instruments: When giving directions to TOTE Tasmania or a TOTE subsidiary, provide them in writing (s 7(2)) and ensure compliance steps are documented (s 7(3)-(4)). Where the Act requires consultation with employees, document the consultation process and any communications with employee representatives (s 15(3)).
Certificates for tax exemption: If determining State tax not payable on sale-related documents, issue written certificates to the payee as required by s 9(3). Retain copies for audit.
Gazette requirements: Publish any order to transfer remaining business to the Crown in the Gazette and specify the transfer day and conditions on the face of the order (s 18(2)). Ensure Gazettal occurs before or on the effective date specified where required by the Act.
Employee orders: When making orders under s 15 or s 19 to transfer or terminate employment, ensure the orders are in writing, specify the day of effect, comply with consultation obligations, and that written notices are sent to affected persons (ss 15(2)-(5); s 19(2)-(4)). Check awards and agreements to ensure terminations comply with relevant contract, award or law (s 15(4); s 19(3)).
Superannuation declarations: Coordinate with the Minister administering the Retirement Benefits Act 1993 to secure declarations under reg 3(3) of the Retirement Benefits Regulations 2005 where required (ss 12, 17).
Auditor-General access and notifications: Notify the Auditor-General of the sale day or proclamation day either before, on, or as soon as reasonably practicable after the day, and ensure timely access to all relevant information (s 24(2)). Ensure the files are audit-ready given the 120-day reporting deadline (s 24(1)).
Orders and statutory rule status: Be deliberate about whether an order should be a statutory rule or not. Where the Act permits non-statutory orders, document the legal basis for choosing one form over the other and consider transparency and oversight implications (s 4(3)-(4); ss 15(12), 18(8), 27(3)).
For TOTE Tasmania, TOTE subsidiaries, boards and senior officers
Comply with written directions and orders: Promptly comply with written Treasurer directions and keep written records of steps taken to implement them (s 7(2)-(4)).
Employee notifications and record-keeping: On receipt of an order transferring or terminating employment, issue written notices to affected employees as required and retain proof of delivery (ss 15(5), 19(4)). For transferred employees, ensure payroll and HR systems reflect continuity of service, remuneration and accrued entitlements (s 15(7)).
Long service leave calculations: Apply the statutory formula in ss 11 and 16 to calculate credited service for long service leave where applicable. Consult payroll and HR specialists to ensure correct application of the variables S and P in the formula and maintain documentation to substantiate the calculations.
Superannuation coordination: Maintain records of any superannuation arrangements and cooperate with ministerial declarations under the Retirement Benefits Regulations as applicable (ss 12, 17).
Deregistration processes: If required to apply for deregistration under s 601AA of the Corporations Act by the Treasurer, comply in writing and ensure all corporate registers, creditor notifications and statutory filings satisfy Corporations Act requirements (s 20(2)-(5)).
Auditor-General cooperation: Provide access and the documents identified in s 31(2). Ensure financial reporting obligations for pre-sale years are kept and supplied as required to the Treasurer for laying before Parliament within seven sitting-days (s 31(3)); non-provision attracts a penalty up to 200 penalty units (s 31(2) penalty).
For purchasers and potential purchasers
Confidentiality compliance: Abide by the restricted onward-disclosure rules in s 21(3). Only disclose received information to categories permitted by the Act: potential purchaser’s agents, advisers, directors, a person listed in s 21(2) or persons authorised in writing by the Treasurer. Seek written Treasurer authorisation where broader disclosures are required.
Contractual protections and warranties: Negotiate express representations, indemnities and warranties dealing with title to assets, allocation of liabilities, employee entitlements, tax exemptions (s 9), and any dowry of unsettled liabilities. Given s 25’s good-faith protections for acts done under the Act, purchasers should insist on contractual mechanisms rather than relying on implied common law remedies.
Confirm Treasurer determinations: Where classification of assets or whether a contract relates to transferring business is material to value, seek a prior written Treasurer determination under s 18(6) and be aware the determination is final and binding (s 18(7)). Consider contractual conditions precedent that require the Treasurer to make necessary determinations.
Due diligence and director exposure: Ensure that director-level due diligence is documented both to inform bid pricing and to protect officers from personal liability should company-level offences later be alleged (s 28(1)-(2)).
For employees and unions
Understand transfer entitlements: Where employment is transferred under s 15, employees become employees of the purchaser with continuity of service and retention of accrued entitlements except where award or law provides otherwise (s 15(7)). Employees should obtain written notice of transfer or termination and request clarification on any changes to awards, agreements, or conditions that may affect future terms (ss 15(5), 15(10)).
Long service leave and superannuation: Verify how the statutory formula for long service leave crediting applies to personal service histories (ss 11, 16) and check whether superannuation consequences require ministerial declarations (ss 12, 17). Seek confirmation in writing from employers or Treasury about credited service calculations.
For professional advisers
Manage information flows: Ensure that client instructions and data sharing comply with s 21 disclosure restrictions and obtain written Treasurer authorisation if you or your client require disclosure beyond the permitted class (s 21(3)). Retain records of authorisation and information handling.
Draft clear sale documentation: Work with transactional teams to ensure sale agreements reflect statutory mechanics, contain appropriate indemnities and specify steps for cooperation with Treasurer orders, Gazettal, and Auditor-General review (ss 18, 24, 31).
Regulatory monitoring: Track any regulations made under s 29, and Gazette orders under ss 4, 15, 18, 27, because those instruments can materially change the legal landscape without an amendment to the primary Act.
Common compliance controls for all parties
Maintain contemporaneous written records of all directions, orders, notices, consultations, determinations and certificates under the Act (ss 7, 9, 15, 18, 21).
Map timelines against defined sale day or transfer day triggers and ensure actions that must occur on or before those days (e.g. notices, Gazettal, Auditor-General notifications) are scheduled and evidenced (s 3 definitions; ss 15(6), 18(2), 24).
Ensure audit-ready documentation is available promptly to the Auditor-General for the mandated review period (s 24(2) and s 31).
Following these steps aligns operational practice to the statutory requirements and reduces exposure to the express penalties, corporate-officer liability, and political and reputational risk flagged by the Act.
(b) in relation to the sale of the business of TOTE Tasmania or of a TOTE subsidiary under section 5(1)(b) or (d) , the day on which the business vests in the purchaser;
statutory rule means a statutory rule within the meaning of the Rules Publication Act 1953 ;
TOTE subsidiary means a subsidiary, within the meaning of the Corporations Act, of TOTE Tasmania;
TOTE Tasmania means the company formed under section 6 of theTOTE Tasmania Act 2000 .
4 Business defined
4 Business defined
(1) In relation to TOTE Tasmania or a TOTE subsidiary –
business includes –
(a) the business conducted by TOTE Tasmania or the TOTE subsidiary; and
(b) the goodwill of that business; and
(c) the assets of TOTE Tasmania or the TOTE subsidiary; and
(d) the liabilities, duties and obligations of TOTE Tasmania or the TOTE subsidiary, whether present or future and whether vested or contingent; and
(e) a part of the business of TOTE Tasmania or the TOTE subsidiary.
(2) However –
(a) this Act does not apply in relation to a part of the business of TOTE Tasmania or of a TOTE subsidiary that the Treasurer, under subsection (3) , has excluded from the operation of this Act; and
(b) a provision of this Act does not apply in relation to a part of the business of TOTE Tasmania or of a TOTE subsidiary that the Treasurer, under subsection (3) , has excluded from the operation of that provision.
(3) The Treasurer, by order, may exclude a part of the business of TOTE Tasmania, or the whole or a part of the business of a TOTE subsidiary, from the operation of this Act or a provision of this Act.
(4) An order under subsection (3) is a statutory rule.
Part 2 Authority of Treasurer to Sell TOTE Tasmania
Part 2 Authority of Treasurer to Sell TOTE Tasmania
5 Authority of Treasurer to sell TOTE Tasmania
5 Authority of Treasurer to sell TOTE Tasmania
(1) While all the shares in TOTE Tasmania are held by the Treasurer and another Minister in trust for the Crown, the Treasurer may sell and transfer, in accordance with this Act, one or more of the following:
(a) those shares in TOTE Tasmania;
(b) the business of TOTE Tasmania;
(c) the shares in a TOTE subsidiary;
(d) the business of a TOTE subsidiary.
(2) A sale under this section will be on the conditions the Treasurer considers appropriate.
(3) In exercising a power of sale under this section, the Treasurer is to have regard to the achievement of a fair and reasonable price.
6 Treasurer may do convenient things
6 Treasurer may do convenient things
For the purposes of a sale under section 5 , the Treasurer may –
(a) enter into contracts; and
(b) transfer shares in TOTE Tasmania or in a TOTE subsidiary in accordance with this Act; and
(c) transfer the business of TOTE Tasmania or of a TOTE subsidiary; and
(d) do any other thing the Treasurer considers necessary or convenient in connection with the sale.
7 Treasurer may give directions to TOTE Tasmania or TOTE subsidiary
7 Treasurer may give directions to TOTE Tasmania or TOTE subsidiary
(1) The Treasurer may direct TOTE Tasmania or a TOTE subsidiary to do one or more of the following to facilitate a sale under section 5 :
(a) take the action specified in the notice;
(b) take all reasonable steps and actions.
(2) A direction is to be in writing provided to TOTE Tasmania or the TOTE subsidiary.
(3) TOTE Tasmania and a TOTE subsidiary are to comply with a direction.
(4) The board of directors and chief executive officer of TOTE Tasmania, and the board of directors and chief executive officer of a TOTE subsidiary, may do all things necessary or convenient to be done to enable compliance with a direction.
8 Treasurer may amend constitution of TOTE Tasmania or TOTE subsidiary, &c.
8 Treasurer may amend constitution of TOTE Tasmania or TOTE subsidiary, &c.
(1) In this section –
amend means do any one or more of the following:
(a) omit matter;
(b) insert matter;
(c) omit matter and substitute other matter.
(2) Despite anything to the contrary in the constitution of TOTE Tasmania or a TOTE subsidiary, the Treasurer may amend, or revoke and substitute, that constitution for the purposes of facilitating a sale under section 5 .
9 Exemption from State tax
9 Exemption from State tax
(1) In this section –
State tax means any tax, duty, charge or application, registration or other fee imposed by an Act or other law of Tasmania.
(2) The Treasurer may determine that State tax is not payable in respect of any document prepared in relation to, or for the purposes of, a sale under section 5 .
(3) A determination is to be made by certificate provided to the person who would otherwise be required to pay the State tax.
(4) State tax is not payable in respect of an order under section 18(2) or any other document prepared in relation to, or for the purposes of, the transfer of the business of TOTE Tasmania or of a TOTE subsidiary under section 18 .
Part 3 Sale of Shares in TOTE Tasmania or TOTE Subsidiary
Part 3 Sale of Shares in TOTE Tasmania or TOTE Subsidiary
10 Application of Part
10 Application of Part
This Part applies in relation to –
(a) a sale under section 5(1)(a) of shares in TOTE Tasmania; and
(b) a sale under section 5(1)(c) of shares in a TOTE subsidiary.
11 Long service leave if shares sold
11 Long service leave if shares sold
(1) This section applies to an employee of TOTE Tasmania or of a TOTE subsidiary to whom, immediately before the sale day, the Long Service Leave (State Employees) Act 1994 applies.
(2) On the sale day, the Long Service Leave (State Employees) Act 1994 ceases to apply to TOTE Tasmania and its employees or the TOTE subsidiary and its employees.
(3) In calculating, on or after the sale day, the period of service an employee has completed with TOTE Tasmania, or a TOTE subsidiary, 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 TOTE Tasmania, or the TOTE subsidiary, calculated in accordance with the following formula:
where:
Calculated service is the period of service the employee is taken to have completed with TOTE Tasmania, or the TOTE subsidiary, immediately before the sale day;
S is the total period of service the employee has completed with TOTE Tasmania, or with the TOTE subsidiary and TOTE Tasmania, (including service the employee is taken to have completed with TOTE Tasmania) 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 TOTE Tasmania, or the TOTE subsidiary, had always been owned by the person who purchased them in the sale under section 5 .
12 Superannuation if shares sold
12 Superannuation if shares sold
If the Treasurer agrees to sell the shares in TOTE Tasmania or a TOTE subsidiary, the Minister administering the Retirement Benefits Act 1993 is to make a declaration under regulation 3(3) of theRetirement Benefits Regulations 2005 declaring the agreement for that sale to be a prescribed arrangement for the purposes of those regulations.
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
Part 4 Sale of Business of TOTE Tasmania or TOTE Subsidiary
Division 1 Preliminary
Division 1 Preliminary
13 Application of Part
13 Application of Part
This Part applies in relation to –
(a) a sale under section 5(1)(b) of the business of TOTE Tasmania; and
(b) a sale under section 5(1)(d) of the business of a TOTE subsidiary.
Division 2 Sale of business of TOTE Tasmania or TOTE subsidiary
Division 2 Sale of business of TOTE Tasmania or TOTE subsidiary
14 Transitional provisions if business sold
14 Transitional provisions if business sold
(1) In this section –
transferring business means the business of TOTE Tasmania, or of a TOTE subsidiary, that the Treasurer agrees to sell.
(2) If the business of TOTE Tasmania or of a TOTE subsidiary is sold, on and after the sale day the following provisions apply except as otherwise agreed, in writing, by the Treasurer and the purchaser:
(a) a reference in an existing document to TOTE Tasmania, or the TOTE subsidiary, in relation to the transferring business is taken, where appropriate, to be or to include a reference to the purchaser;
(b) a legal proceeding that could have been instituted by or against TOTE Tasmania, or the TOTE subsidiary, immediately before the sale day and that relates to the transferring business may be instituted by or against the purchaser;
(c) a legal proceeding instituted by or against TOTE Tasmania, or the TOTE subsidiary, that relates to the transferring business and is pending immediately before the sale day may be continued by or against the purchaser;
(d) a document served on TOTE Tasmania, or the TOTE subsidiary, in respect of a legal proceeding referred to in paragraph (c) is taken to have been served on the purchaser;
(e) a judgment or order of a court obtained by or against TOTE Tasmania, or the TOTE subsidiary, in relation to the transferring business may be enforced by or against the purchaser but may not be enforced by or against TOTE Tasmania, or the TOTE subsidiary;
(f) a contract made by TOTE Tasmania, or the TOTE subsidiary, relating to the transferring business but not performed or discharged before the sale day is taken to have been made by the purchaser.
(3) If the business of TOTE Tasmania or of a TOTE subsidiary is sold, the obligations of TOTE Tasmania or the TOTE subsidiary in relation to a liability that becomes the liability of the purchaser as part of that sale are discharged on the sale day.
15 Arrangements for employees if business sold
15 Arrangements for employees if business sold
(1) In this section –
transferred employee means a person whose employment with TOTE Tasmania, or a TOTE subsidiary, is transferred by reason of an order made under subsection (2)(a) and the operation of subsection (6) .
(2) If the Treasurer sells the business of TOTE Tasmania or of a TOTE subsidiary, the Treasurer may, by order provided to TOTE Tasmania or the TOTE subsidiary –
(a) transfer to the purchaser the employment of a person who, immediately before the sale day, was employed by TOTE Tasmania or the TOTE subsidiary for the purposes of that business; or
(b) terminate on any conditions the Treasurer considers appropriate the employment of a person who, immediately before the sale day, was employed by TOTE Tasmania or the TOTE subsidiary for the purposes of that business.
(3) Before transferring or terminating the employment of a person under subsection (2) , the Treasurer is to consult with the person in any manner the Treasurer considers appropriate including, but not limited to, consultation with the representatives of the person or the employee organisation to which the person belongs.
(4) In terminating the employment of a person under subsection (2) , the Treasurer is to do so subject to, and in accordance with, any relevant contract, award or agreement.
(5) On receipt of an order under subsection (2) , TOTE Tasmania or the TOTE subsidiary is to give to each person whose employment is transferred or terminated by the order written notice of that transfer or termination.
(6) On the sale day, or on the day specified in the order under subsection (2) as the day on which the employment of a person is transferred –
(a) if the order transfers the employment to the purchaser, that person becomes an employee of the purchaser and the purchaser becomes the employer of that person; and
(b) that person ceases to be an employee of TOTE Tasmania or the TOTE subsidiary.
(7) A transferred employee –
(a) is taken to have been employed by the purchaser for the same remuneration as he or she was receiving immediately before the transfer; and
(b) except where an award, agreement or law otherwise provides, retains all accrued entitlements as if employment as an employee of the purchaser were a continuation of employment with TOTE Tasmania or the TOTE subsidiary; and
(c) is entitled to claim those entitlements against the purchaser; and
(d) is not entitled to any compensation or other payment in respect of the change of employer except as provided by the Retirement Benefits Act 1993 or the Public Sector Superannuation Reform Act 1999 .
(8) An award or agreement that had effect in relation to a person immediately b
This is an opening excerpt, not the complete document.
