PART 8 | TRANSFER OF UNDERTAKINGS TO AGENCY |
| Interpretation of this Part |
44. In this Part, unless the context otherwise requires —“asset”, in relation to the transferor, means property of any kind (whether tangible or intangible, whether arising from, accruing under, created or evidenced by or the subject of, an instrument or otherwise and whether actual or contingent) of the transferor on the eve of the transfer date and includes, without limitation, any —| (a) | legal or equitable interest in real or personal property; | | (b) | chose in action; | | (c) | security; | | (d) | money; | | (e) | intellectual property; | | (f) | infrastructure, plant and equipment; | | (g) | records and information (including data) in any form; and | | (h) | right; |
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| “liability”, in relation to the transferor, means any liability, duty or obligation (whether actual or contingent, liquidated or unliquidated, and whether owed alone or jointly, or jointly and severally with any other person) of the transferor on the eve of the transfer date; |
| “records”, in relation to the transferor, means registers, papers, documents, minutes, receipts, books of account and other records, however compiled, recorded or stored, of the transferor existing on the eve of the transfer date; |
| “right”, in relation to the transferor, means any right, power, privilege or immunity of the transferor on the eve of the transfer date; |
| “transferor” means the Government; |
| “transferring employee” means any individual who, on the eve of the transfer date, is a public officer holding a post in the Science and Technology Group of the Ministry of Home Affairs, but does not include any individual whose name is on the list of excluded individuals approved by the Minister. |
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| Transfer of undertakings to Agency |
45.—(1) On the transfer date, all assets and liabilities of the transferor that relate solely to the functions of the Science and Technology Group of the Ministry of Home Affairs are transferred to the Agency.(2) When any assets or liabilities are transferred under subsection (1), the following provisions have effect:| (a) | the assets of the transferor that are the subject of the transfer vest in the Agency by virtue of this section and without the need for any further conveyance, transfer, assignment or assurance; | | (b) | the liabilities of the transferor that are the subject of the transfer become by virtue of this section the liabilities of the Agency; | | (c) | all legal or other proceedings relating to those assets or liabilities that are started before the transfer date by or against the transferor and pending immediately before that date are taken to be proceedings pending by or against the Agency; | | (d) | any legal or other proceedings relating to those assets or liabilities which could have been started immediately before the transfer date by or against the transferor may be started by or against the Agency; | | (e) | a judgment or order of a court or other tribunal obtained before the transfer date by or against the transferor relating to those assets or liabilities may be enforced by or against the Agency; | | (f) | any document relating to legal or other proceedings relating to those assets or liabilities that has been served on or by the transferor before the transfer date is taken, where appropriate, to have been served on or by the Agency; | | (g) | any act, matter or thing done or omitted to be done before the transfer date in relation to those assets or liabilities by, to or in respect of the transferor is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the Agency; | | (h) | a reference in any written law, in any instrument made under any Act, in any contract, agreement, arrangement or undertaking, or in any document of any kind to the transferor, to the extent to which the reference relates to those assets or liabilities, is taken to be, or includes, a reference to the Agency. |
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(3) The operation of this section does not —| (a) | constitute a breach of, or default under, an Act or other law, or otherwise a civil wrong or criminal wrong; | | (b) | constitute a breach of duty of confidence (whether arising by contract, in equity, by custom, or in any other way); | | (c) | constitute a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets or liabilities or the disclosure of any information; | | (d) | terminate an agreement or obligation, or fulfil any condition that allows a person to terminate any agreement or obligation, or gives rise to any right or remedy in respect of any agreement or obligation; | | (e) | cause any contract or other instrument to be void or otherwise unenforceable; | | (f) | frustrate any contract; | | (g) | release a surety or other obligor or obligee wholly or in part from an obligation; or | | (h) | constitute an event of breach of, or default under, any contract or other instrument. |
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| (4) No attornment to the Agency by a lessee from the transferor is required for the purpose of this section. |
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| Transferring secondments and employees to Agency |
46.—(1) On the transfer date, every transferring employee —| (a) | stops being an employee of the transferor; and | | (b) | is each transferred to the service, and becomes an employee, of the Agency on terms no less favourable than those enjoyed by the employee on the eve of the transfer date. |
(2) The transfer of a transferring employee to the Agency —| (a) | does not interrupt continuity of service; | | (b) | does not constitute a retrenchment or redundancy; and | | (c) | does not entitle any employee so transferred to any payment or other benefit merely because he or she stops being employed by the transferor. |
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| (3) A certificate purporting to be signed by the Minister certifying that an individual named in the certificate has been transferred, with effect from the transfer date, by virtue of this section to the Agency, is admissible in evidence in any proceedings as evidence of the matters stated in it. |
(4) Nothing in this section prevents —| (a) | any of the terms and conditions of employment of an individual transferred under this section from being altered by or under any law, award or agreement with effect from any time after the transfer date; or | | (b) | an individual transferred under this section from resigning from the Agency at any time after the transfer date, in accordance with the terms and conditions of his or her employment then applicable. |
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| (5) To avoid doubt, section 18A of the Employment Act 1968 does not apply to the transfer under this Part of any transferring employee to the Agency. |
(6) On the transfer date, every public officer or employee of any other public body seconded to the Science and Technology Group of the Ministry of Home Affairs under either of the following that is in force on the eve of the transfer date, continues on secondment to the Agency:| (a) | an arrangement made by the transferor; | | (b) | an agreement or arrangement between the transferor and a public body. |
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| General preservation of employment terms |
47.—(1) The service with the Agency of an employee transferred under section 46 (called in this section a transferred employee) must be regarded for all purposes as having been continuous with the service of the employee with the transferor immediately before the transfer date.(2) On the transfer date —| (a) | a transferred employee retains all accrued rights as if employment with the Agency were a continuation of employment with the transferor; | | (b) | the liabilities of the transferor relating to the transferred employee’s accrued rights to leave and superannuation become the liabilities of the Agency; and | | (c) | a reference to the transferor in the contract of employment that had effect in relation to the transferred employee immediately before the transfer date is taken to be, or includes, a reference to the Agency. |
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(3) For any conduct of the transferred employee when he or she was employed by the transferor which would have rendered the employee liable to be reprimanded, reduced in rank, retired, dismissed or punished by the transferor, the Agency may —| (a) | start any disciplinary proceedings against that employee; | | (b) | carry on and complete any disciplinary proceedings started by the transferor against the transferred employee if those proceedings are pending on the eve of the transfer date; and | | (c) | reprimand, reduce in rank, retire, dismiss or otherwise punish a transferred employee, as if the employee were not transferred. |
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(4) Where, on the eve of the transfer date, any matter about the conduct of a transferred employee during his or her employment with the transferor —| (a) | was in the course of being heard or investigated by a committee of the transferor acting under due authority; or | | (b) | had been heard or investigated by a committee of the transferor acting under due authority but no order, ruling or direction had been made, |
| that committee must complete the hearing or investigation and make such order, ruling or direction as it could have made under the authority vested in it before the transfer date, and that order, ruling or direction is to be regarded as an order, ruling or direction of the Agency. |
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| (5) Until such time as conditions of employment are drawn up by the Agency for a transferred employee, the transferred employee is to be regarded as being employed by the Agency on the same conditions of his or her employment with the transferor on the eve of the transfer date. |
| (6) Any condition of employment relating to the length of service with the Agency must recognise the length of service of the employees so transferred while in the employment of the transferor (including any previous service of the employee taken to be service with the transferor) to be service with the Agency. |
(7) Nothing in section 46(6) —| (a) | breaks the continuity of service of the public officer or employee of another public body whose secondment continues with the Agency because of that provision; or | | (b) | affects any rights, powers or immunities that such a public officer or an employee of a public body has, or the extent to which such public officer or employee (as the case may be) is subject to obligations or liabilities in relation to discipline, by virtue of holding the office or position to which the public officer or employee is seconded. |
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48. On the transfer date, every record, or part of any record, of the transferor that relates to the following becomes the record of the Agency:| (a) | any asset or liability transferred to the Agency under section 45; | | (b) | any transferring employee. |
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49.—(1) If any dispute arises —| (a) | as to whether an asset or a liability or a record is transferred under section 45 or 48; or | | (b) | as to whether any, or any part of any, contract or document relates to an asset or a liability or a record, transferred under section 45 or 48, |
| the Minister for Finance may determine the matter and is to provide the concerned parties with written notice of that determination. |
| (2) The determination of the Minister for Finance under subsection (1) is final and binding on the transferor and the Agency. |
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