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ENERGY SERVICES CORPORATIONS ACT 1995 - SCHEDULE 3

SCHEDULE 3 – Transfer of staff, assets, rights and liabilities

(Section 15, clauses 7, 12, 13A, 13D, 13F, 16 and 22 of Schedule 5)

1 Application and interpretation

(1) This Schedule applies to any transfer of staff, assets, rights or liabilities under section 15 or clause 7, 12, 13A, 13D, 13F, 16 or 22 of Schedule 5.
(2) In this Schedule, the person or body from which any staff, assets, rights or liabilities are transferred is called the transferor and the person or body to which they are transferred is called the transferee.

2 Transfer of staff

A member of staff who is transferred by a transfer to which this Schedule applies 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 person had the person not been transferred but remained a member of staff of the transferor.

3 Vesting of undertaking in transferee

(1) When any assets, rights or liabilities are transferred by a transfer to which this Schedule applies, the following provisions have effect:
(a) the assets of the transferor vest in the transferee by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance,
(b) the rights or liabilities of the transferor become by virtue of this clause the rights or liabilities of the transferee,
(c) all proceedings relating to the assets, rights or liabilities commenced before the transfer by or against the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,
(d) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the transfer by, to or in respect of the transferor or a predecessor 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 transferee,
(e) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent to which it relates to those assets, rights or liabilities) taken to include a reference to the transferee.
(2) The operation of this clause is not to be regarded:
(a) as a breach of contract or confidence or otherwise as a civil wrong, or
(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or
(c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.
(3) The operation of this clause is not to be regarded as an event of default under any contract or other instrument.
(4) No attornment to the transferee by a lessee from the transferor is required.
(5) A transfer is subject to the terms and conditions of the order by which it is effected.
(6) No compensation is payable to any person or body in connection with a transfer to which this Schedule applies except to the extent (if any) to which the order giving rise to the transfer so provides.
(7) Subclause (6) does not affect the rights of any member of staff who is the subject of a transfer to which this Schedule applies.

4 Date of vesting

A transfer to which this Schedule applies takes effect on the date specified in the order by which it is effected.

5 Consideration for vesting

The Minister may, by order in writing, specify the consideration on which a transfer to which this Schedule applies is made and the value or values at which the assets, rights or liabilities are transferred.

6 Stamp duty

Stamp duty is not chargeable for or in respect of:

(a) a transfer to which this Schedule applies, or
(b) anything certified by the Minister as having been done in consequence of such a transfer (for example, the transfer or conveyance of an interest in land).

7 Confirmation of vesting

(1) The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities by operation of this Schedule.
(2) Such a notice is conclusive evidence of that transfer.

8 Definitions

In this Schedule:

"assets" means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents.

"liabilities" means any liabilities, debts or obligations (whether present or future and whether vested or contingent).

"rights" means any rights, powers, privileges or immunities (whether present or future and whether vested or contingent).



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