Superannuation Administration Corporation (Pillar) (Authorised Transaction) Act 2016 (NSW)

Superannuation Administration Corporation (Pillar) (Authorised Transaction) Act 2016 No 19 An Act to provide for the transfer of the business of the Superannuation Administration Corporation; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Superannuation Administration Corporation (Pillar) (Authorised Transaction) Act 2016. 2 Commencement (1) This Act commences on the date of assent to this Act, except as provided by subsection (2). (2) Schedule 5 (Ownership restrictions in floated transaction companies) commences on a day to be appointed by proclamation. 3 Interpretation—key definitions Note— Schedule 1 contains other interpretative provisions. In this Act— authorised transaction means a transfer of Pillar assets authorised by Part 2. Pillar means the Superannuation Administration Corporation constituted by the Superannuation Administration Authority Corporatisation Act 1999. Note— The Superannuation Administration Corporation operates under the trading name of Pillar Administration. Pillar assets means the assets, rights and liabilities of Pillar. Part 2 The authorised transaction 4 Authorisation for transfer of Pillar assets This Act authorises the transfer of Pillar assets to the private sector or to any public sector agency. 5 Payment and application of proceeds of transaction (1) The proceeds of the transfer of Pillar assets to the private sector pursuant to the authorised transaction (the transaction proceeds) belong to and are payable directly to the State. (2) The transaction proceeds paid to the State are to be paid into the Restart NSW Fund (the Restart Fund) established under the Restart NSW Fund Act 2011. (3) The following deductions are authorised to be made from the transaction proceeds— (a) deduction of such amounts as the Treasurer approves to repay debt and satisfy other liabilities of a public sector agency in respect of Pillar assets transferred for the purposes of the authorised transaction, (b) deduction of such amounts as the Treasurer approves to reimburse public sector agencies for payments made by them in respect of any tax, duty, fee or charge imposed by any Act or law of the State or any other jurisdiction in connection with a transaction arrangement, (c) deduction of such amounts as the Treasurer approves to satisfy any liability of a public sector agency arising under or in connection with a transaction arrangement, (d) deduction of such amounts as the Treasurer approves to meet expenses reasonably incurred by public sector agencies for the purposes of the authorised transaction. (4) The transaction proceeds do not include any amount certified by the Treasurer as paid or payable to a public sector agency as a tax, duty, fee or charge imposed by any Act or law of the State in connection with a transaction arrangement. (5) The deductions authorised to be made from the transaction proceeds may be made before payment of the transaction proceeds into the Restart Fund, or may be made by payment from the Restart Fund. (6) The requirements of this section do not affect the validity of a transaction arrangement. 6 Regional commitment (1) The Treasurer must ensure that the private sector entity that becomes the owner of Pillar assets pursuant to the authorised transaction provides a guarantee to the effect that Pillar's existing Illawarra operations immediately before completion of the authorised transaction will continue to be conducted in the Illawarra for at least 10 years after completion of the authorised transaction. (2) In this section— existing clients means the superannuation schemes in respect of which Pillar provides services immediately before completion of the authorised transaction. existing Illawarra operations means the business activities undertaken by Pillar in the Illawarra in the exercise of functions that are associated with the delivery of member services and that are designated within Pillar's business as "Operations", but limited to business activities that relate to Pillar's existing clients. the Illawarra means the area designated by the Australian Bureau of Statistics as the Illawarra Statistical Division. Part 3 Facilitating the authorised transaction 7 Treasurer's functions The Treasurer has and may exercise all such functions as are necessary or convenient for the purposes of the authorised transaction. The functions conferred on the Treasurer by any other provision of this Act do not limit the Treasurer's functions under this section. 8 Manner of effecting authorised transaction (1) The authorised transaction is to be effected as directed by the Treasurer and can be effected in any manner considered appropriate by the Treasurer. (2) There are no limitations as to the nature of the transactions or arrangements that can be entered into or used for the purposes of the authorised transaction. (3) The provisions of this Act for the establishment of various kinds of transaction entity do not limit the nature of the entities or arrangements that can be used for the purposes of the authorised transaction. 9 Transaction SOCs (1) A statutory State owned corporation may be established under this Act as a transaction SOC for the purposes of the authorised transaction. (2) The Governor may by order published in the Gazette— (a) create a corporation under a corporate name specified in the order, and (b) specify the functions of the corporation, and (c) direct that the corporation is established as a statutory State owned corporation and as a transaction SOC. (3) On the day on which the order takes effect— (a) a corporation is constituted with the corporate name and functions specified in the order, and (b) the State Owned Corporations Act 1989 is amended by inserting in Schedule 5 the corporate name specified in the order (to establish the corporation as a statutory State owned corporation under that Act), and (c) the State owned corporation thereby established is a transaction SOC for the purposes of this Act. (4) The portfolio Minister of a SOC established under this section is the Minister administering the Superannuation Administration Authority Corporatisation Act 1999. (5) Schedule 2 has effect with respect to a transaction SOC. The provisions of that Schedule are in addition to and (except to the extent to which that Schedule otherwise provides) do not derogate from the provisions of the State Owned Corporations Act 1989. 10 Transaction companies (1) The Treasurer may for the purposes of the authorised transaction establish, or direct the establishment of, companies as transaction companies in any of the following ways— (a) the formation or acquisition by or on behalf of the State or a SOC of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State or a SOC (or both), (b) the formation or acquisition of a company as a wholly owned subsidiary company of a transaction company, (c) the conversion of Pillar or a transaction SOC into a company limited by shares as provided by Schedule 3. (2) A transaction company that is a public sector agency may be converted from one kind of company to any other kind of company. (3) Except by express agreement with the Treasurer— (a) a transaction company is not and does not represent the State, and (b) the debts, liabilities and obligations of a transaction company are not guaranteed by the State. (4) The Treasurer may act for or on behalf of the State, a SOC or a transaction company that is a public sector agency in connection with the rights, privileges and benefits, and the duties, liabilities and obligations, of the State, a SOC or a transaction company as the holder of shares or other securities in or issued by a transaction company. (5) Shares and other securities in or issued by a transaction company that is a public sector agency may be issued or transferred in accordance with the directions of the Treasurer. The Treasurer may on behalf of the State, a SOC or a transaction company that is a public sector agency, enter into and carry out transaction arrangements for the issue or transfer of shares and other securities in or issued by a transaction company. (6) If Pillar becomes a transaction company by being converted into a company under this section, a reference in this Act to Pillar includes a reference to that transaction company. (7) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally. 11 Functions of Pillar and transaction entities (1) Pillar and each transaction entity has and may exercise all such functions as are necessary or convenient for the purposes of the authorised transaction. (2) The functions conferred by this section are in addition to any other functions that Pillar or a transaction entity has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section. (3) The Treasurer may act for or on behalf of Pillar or a transaction entity in the exercise of any of its functions for the purposes of the authorised transaction while it is a public sector agency. 12 Direction and control of Pillar and transaction entities (1) Pillar and each transaction entity is subject to the direction and control of the Treasurer in the exercise of any of its functions for the purposes of the authorised transaction while it is a public sector agency. (2) The Treasurer may give directions for the purposes of the authorised transaction to Pillar or a transaction entity, and to the directors and other officers of Pillar or a transaction entity. Any such directions must be complied with by Pillar, the transaction entity or the directors or other officers concerned. (3) Directions to a transaction entity (or its directors and other officers) can only be given and are only required to be complied with while the transaction entity is a public sector agency. (4) The power to give directions under this section extends to directions with respect to the way in which Pillar or a transaction entity is to conduct its business and other affairs. (5) Action taken by Pillar or a transaction SOC to comply with a direction of the Treasurer under this Act does not require the approval of the voting shareholders or portfolio Minister of the corporation. (6) Anything done or omitted to be done by a director or other officer of Pillar or a transaction entity in compliance or purported compliance with a direction given by the Treasurer under this Act does not subject the director or officer personally to any action, liability, claim or demand. (7) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally. 13, 14 (Repealed) Part 4 Arrangements for transfer of staff 15 Interpretation In this Part, Pillar employee means an employee of Pillar or a wholly-owned subsidiary of Pillar, and includes a person who was an employee of Pillar or a wholly-owned subsidiary of Pillar immediately before the person's employment was transferred under this Part to the employment of another public sector agency. 16 Transfers of staff within public sector (1) The Treasurer may, for the purposes of the authorised transaction, by order in writing transfer the employment of a Pillar employee to the employment of another public sector agency. (2) A transfer of employment under this section does not require the consent of the person transferred. (3) An employee whose employment is transferred under this section is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the employee had the employee remained an employee of Pillar. (4) The Treasurer may negotiate and enter into agreements or industrial instruments concerning workplace relations for or on behalf of a public sector agency in connection with the operation of this section. 17 Transfers of staff to private sector employment (1) The Treasurer may, for the purposes of the authorised transaction, by order in writing transfer the employment of a Pillar employee (a transferred employee) to the employment of a private sector entity (the new employer). (2) A transfer of employment under this section does not require the consent of the Pillar employee transferred. (3) The employment of a transferred employee with the new employer is to be on the same terms and conditions as applied under a relevant award to the employee as a Pillar employee immediately before the transfer of employment. (4) Those terms and conditions cannot be varied during any employment guarantee period for the transferred employee except by agreement entered into by or on behalf of the transferred employee or in accordance with the Fair Work Act 2009 of the Commonwealth. (5) The employment of a transferred employee with the new employer cannot be terminated by the new employer during any employment guarantee period for the transferred employee, except— (a) for serious misconduct, or (b) pursuant to the proper application of reasonable disciplinary procedures, or (c) by agreement with the employee. (6) There is an employment guarantee period for transferred employees who are permanent or temporary employees, as follows— (a) for permanent employees the employment guarantee period is 2 years after the transfer date, (b) for temporary employees the employment guarantee period is the remainder of the employee's current term of employment (as specified in the arrangements under which the employee was engaged as a temporary employee) immediately before the transfer date or the period of 2 years after the transfer date, whichever period ends first. Note— There is no employment guarantee period for contract employees or casual employees. The employment of a transferred employee who is a contract employee remains governed by the contract of employment. (7) In this section— casual employee means an employee whose employment is in a category of employment that is described in or classified under a relevant award as casual employment or who is otherwise engaged as a casual employee. contract employee means an employee whose terms and conditions of employment are provided by an individual contract and not by a relevant award. permanent employee means an employee whose employment is of indefinite duration and who is not a casual employee, temporary employee or contract employee. relevant award means any award, agreement or other industrial instrument (under a law of the State or the Commonwealth) that provides for the terms and conditions of employment of employees. temporary employee means an employee (other than a casual employee or contract employee) whose employment is in a category of employment that is described in or classified under a relevant award as temporary employment or whose employment is, under the terms of his or her employment, for a limited period. transfer date means the date on which the employment of a transferred employee is transferred under this section to the new employer. 18 Continuity of entitlements of transferred employees (1) On the transfer by order under this Part of an employee's employment from one employer (the current employer) to another employer (the new employer) the following provisions have effect— (a) the employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which he or she was a contributor, member or employee (as an employee of the current employer) immediately before the transfer of employment and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law, (b) the new employer is taken to be an employer for the purposes of any superannuation scheme in respect of which the employee continues as a contributor, member or employee pursuant to an entitlement under this section, (c) the continuity of the employee's contract of employment is taken not to have been broken by the transfer of employment, and service of the employee with the current employer (including service deemed to be service with the current employer) that is continuous service up to the time of transfer is taken for all purposes to be service with the new employer, (d) the employee retains any rights to sick leave, annual leave or extended or long service leave accrued or accruing immediately before the transfer (except accrued leave for which the employee has, on ceasing to be an employee of the current employer, been paid the monetary value in pursuance of any other entitlement of the employee). (2) The Treasurer may in connection with the operation of this Part give a certificate in writing as to the extent of the accrued rights to annual leave, extended or long service leave or sick leave that are retained by the employee under this Part, and such a certificate is evidence of the matters certified. (3) Nothing in the Long Service Leave Act 1955 prevents payment in connection with the transfer under this Act of the employment of an employee to the employment of a private sector entity of the monetary value of long service leave in lieu of an entitlement to that leave accrued as a Pillar employee before the transfer of the employee's employment. (4) An employee is not entitled in respect of the same period of service to claim a benefit under this Act and another law or instrument. 19 Operation of other laws and entitlements The following provisions apply in relation to the transfer of a person's employment under this Part— (a) the transfer has effect despite any other law, contract or instrument under a law, (b) the transfer does not constitute a retrenchment, redundancy or termination of employment at the initiative of the Crown or any other public sector agency, (c) the person transferred is not entitled to any payment or other benefit by reason only of having ceased to be an employee of a public sector agency as a result of the transfer, (d) a public sector agency is not required to make any payment to the transferred person in relation to the transferred person's accrued rights in respect of annual leave, sick leave or extended or long service leave. 20 Operation of Commonwealth law A provision of this Act (including a provision to the extent that it imposes or continues a term or condition of employment) has no effect to the extent of any inconsistency with any provision of the Fair Work Act 2009 of the Commonwealth or of any instrument under that Act. Part 5 Arrangements for transfer of assets and functions 21 Vesting orders The Treasurer may make vesting orders under Schedule 4 for the purposes of the authorised transaction. 22 Grant of relevant authorisations (1) The Treasurer may by order in writing given to the relevant administering agency direct the grant of a specified relevant authorisation to a person who becomes or who it is proposed will become the new owner of any Pillar assets pursuant to the authorised transaction. (2) Such a direction (a grant direction) operates to grant the specified relevant authorisation on such terms and conditions and subject to such endorsements as may be specified in the direction, and so operates— (a) without the need for any action by the relevant administering agency, and (b) without the need for the making or determination of any application for the relevant authorisation, and (c) despite any requirement of or restriction imposed by a relevant law in relation to the grant of a relevant authorisation. (3) A grant direction may only direct the grant of a relevant authorisation that— (a) operates to transfer or replace a relevant authorisation that is currently in force, and (b) is subject to terms, conditions or endorsements that are the same (or to substantially the same effect) as those to which that relevant authorisation is subject. (4) A grant direction may direct the grant of more than one relevant authorisation to transfer or replace an existing relevant authorisation. (5) The Treasurer is to consult with the relevant administering agency before giving a grant direction for a relevant authorisation. (6) The Treasurer may direct the relevant administering agency to give effect to a grant direction by formally granting, and issuing the appropriate documentation for, the relevant authorisation concerned. The relevant administering agency must comply with the Treasurer's direction within the period specified in the direction. (7) Anything done by Pillar or another public sector agency in compliance with a condition or endorsement of a relevant authorisation in relation to Pillar assets of which a person is the new owner is taken to have been done by the new owner for the purposes of any corresponding condition or endorsement of a relevant authorisation granted to the new owner pursuant to this section. (8) A relevant authorisation granted to Pillar or to the new owner of Pillar assets may not be suspended or cancelled on the ground of the conversion of Pillar or new owner to a company or on the ground of any change that has occurred in the officers or shareholders of the company as a result of that conversion or pursuant to a transaction arrangement. (9) In this section— grant includes issue and transfer. new owner of Pillar assets means— (a) a public sector agency to which any Pillar assets are transferred for the purposes of the authorised transaction, or (b) a person (or the nominee of a person) who becomes the owner of Pillar assets pursuant to the authorised transaction. relevant administering agency, in relation to a relevant authorisation, means the public sector agency or public official having the function of granting the relevant authorisation. relevant authorisation means a licence, permit, consent, entitlement, accreditation, exemption or other authorisation held by Pillar or a subsidiary of Pillar, or held by another public sector agency as a result of being granted pursuant to this section. 23 Adjustment of Pillar objectives and functions (1) The Treasurer may by direction in writing to Pillar adjust the objectives and functions of Pillar in such manner as the Treasurer considers appropriate to ensure that the objectives and functions of Pillar remain appropriate, having regard to— (a) the capacity of Pillar to give effect to or exercise its existing objectives and functions following the transfer of any of its assets, rights and liabilities for the purposes of the authorised transaction, and (b) the objectives and functions that would be appropriate for any remaining assets, rights and liabilities of Pillar. (2) The objectives and functions of Pillar may be adjusted under this section by being limited or dispensed with but not by being broadened. Part 6 Operation of other laws 24 State taxes (1) In this section— relevant matter means any of the following— (a) any transaction arrangement, (b) a vesting of assets, rights or liabilities by operation of Schedule 4 (Vesting of assets, rights and liabilities) and anything certified by the Treasurer as having been done in consequence of such a vesting (for example, the transfer or registration of an interest in land), (c) the issue, disposal or purchase of shares or other securities or interest in or issued by an entity for the purposes of the authorised transaction, (d) any matter connected with the corporate conversion of Pillar or a transaction SOC for the purposes of the authorised transaction, (e) any transaction, agreement or other arrangement (a post-completion arrangement) occurring within 2 years after completion of the authorised transaction and certified by the Treasurer to have been entered into in connection with the transfer of Pillar assets to the private sector pursuant to the authorised transaction, (f) such other matters for the purposes of the authorised transaction as may be prescribed by the regulations. State tax means application, transfer or registration fees, duty under the Duties Act 1997 or any other tax, duty, fee or charge imposed by any Act or law of the State. (2) State tax is not payable by a public sector agency in relation to a relevant matter. (3) The Treasurer may by order in writing direct that subsection (2) does not apply to a public sector agency either generally or in respect of a particular relevant matter or class of relevant matters. (4) State tax is not payable by a person or body (other than a public sector agency) in relation to a relevant matter to such extent (if any) as the Treasurer may direct by order in writing, either generally or in a particular case. (5) The Treasurer may by order in writing limit the application of this section in respect of a particular post-completion arrangement by imposing conditions on the application of this section to the arrangement. (6) An order may be made by the Treasurer under this section before or after the liability to pay the State tax concerned accrues. (7) The Treasurer must give a copy of an order under this section to the Chief Commissioner of State Revenue. 25 General relationship of Act with other State legislation (1) None of the following provisions operate to prevent, restrict or otherwise limit the carrying out of a transaction arrangement or the exercise of a function for the purposes of the authorised transaction— (a) any provision of the State Owned Corporations Act 1989, (b) any provision of the Superannuation Administration Authority Corporatisation Act 1999, (c) any provision of the constitution of a statutory SOC or a subsidiary of a statutory SOC. (2) In the event of any inconsistency between the provisions of this Act or the regulations and a provision of any other State legislation that is prescribed by the regulations as an inconsistent provision for the purposes of this section, the provisions of this Act or the regulations (as the case may be) prevail to the extent of the inconsistency. (3) The requirements of any other Act (whether enacted before or after this Act) for the approval by resolution of either or both Houses of Parliament (or by Act) of any act that constitutes the transfer of Pillar assets for the purposes of the authorised transaction is satisfied by the enactment of this Act. 26 Part 6 of Government Sector Finance Act 2018 Part 6 of the Government Sector Finance Act 2018 does not apply to any transaction arrangement. 27 Release of information by Auditor-General Section 38 (Secrecy) of the Government Sector Audit Act 1983 does not apply to or in respect of a report or communication that the Treasurer authorises the Auditor-General to make to a person for the purposes of the authorised transaction or for the purposes of the audit (before or after the completion of the authorised transaction) of records relating to Pillar assets transferred pursuant to the authorised transaction. 28 Conveyancing Act Section 52A of the Conveyancing Act 1919 does not apply to a contract entered into for the purposes of the authorised transaction. 29 Protection against breach of contractual and other obligations (1) The following matters and things are protected by this section— (a) the operation of this Act (including any regulation or order under this Act), (b) the transfer of Pillar assets for the purposes of the authorised transaction, (c) the entering into or performance of obligations under a transaction, agreement or other arrangement for the purposes of the authorised transaction, (d) a disclosure of information by, on behalf of or with the consent of a public sector agency for the purposes of the authorised transaction, (e) anything else done or omitted to be done under or for the purposes of this Act or the authorised transaction. (2) None of the matters or things protected by this section are to be regarded as— (a) a breach of contract or confidence or otherwise as a civil wrong, or (b) a breach of any instrument (including, without limitation, any provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities) or as requiring any act to be done under an instrument, or (c) giving rise to any right or remedy by a party to a contract or other instrument, or as causing or permitting the termination of, or exercise of rights under, any contract or other instrument, or (d) an event of default under any contract or other instrument, or (e) giving rise to a breach of or an offence against a provision of an Act that prohibits or restricts the disclosure of information, or (f) releasing a surety or other obligee wholly or in part from an obligation. (3) This section does not affect rights and obligations that arise under a transaction, agreement or other arrangement entered into for the purposes of the authorised transaction. (4) In this section— instrument means an instrument (other than an instrument made under this Act) or any other document that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order, process or other instrument issued by a court or tribunal. 30 Compensation not payable (1) Compensation is not payable by or on behalf of the State— (a) because of the enactment or operation of this Act, or for any consequence of that enactment or operation, or (b) because of any statement or conduct relating to the enactment of this Act. (2) This section does not extend to compensation payable under a transaction arrangement to a party to the transaction arrangement in connection with the performance of obligations under the transaction arrangement. (3) In this section— compensation includes damages or any other form of monetary compensation. conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise. operation of this Act includes the operation of any notice or order under this Act and any agreement entered into under or for the purposes of this Act. statement includes a representation of any kind— (a) whether made verbally or in writing, and (b) whether negligent, false, misleading or otherwise. the State means the Crown within the meaning of the Crown Proceedings Act 1988, and includes a public sector agency and an officer, employee or agent of the Crown or a public sector agency. Part 7 Miscellaneous 31 Delegation The Treasurer may delegate to the Secretary of the Treasury, or to any other Public Service employee prescribed by the regulations, any function of the Treasurer under this Act except this power of delegation. 32 Act to bind State and other jurisdictions (1) This Act binds the State and, in so far as the legislative power of the Parliament of New South Wales permits, the other States, the Territories and the Commonwealth. (2) Without limiting subsection (1), this Act ha