Southern Cross University Act 1993

Schedule 3 - Savings and Transitional Provisions

(Sec. 32)

Part 1| Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 |

Part 1- Preliminary

Definitions
1. In this part:
“former campus” means the University of New England, Northern Rivers (being the network member of that name under the University of New England Act 1989) and the college of the former University of New England at Coffs Harbour (known as the Coffs Harbour Centre);

“former University of New England” means the University of New England established under the University of New England Act 1989;

“transfer day” means the day on which the University of New England Act 1989 is repealed.

Regulations
2.
(1) The Governor may make regulations containing provisions of a savings or transitional nature consequent on the enactment of this Act.

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to this Act or a later day.

(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication; or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

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Part 2- Transfer of Staff

Definitions
3. In this Part:
“officer”, in relation to a former campus, means a person who, immediately before the transfer day, held any salaried office or employment in the staff establishment of the former campus otherwise than as a casual staff member or a staff member employed on a fixed term contract;

“superannuation scheme” means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under an Act;

“casual staff member”, in relation to a former campus, means a person who, immediately before the transfer day, was employed in the staff establishment of that campus on terms and conditions that allowed for his or her services to be dispensed with at any time.

Minister may give directions as to which University staff belong
4.
(1) The Minister may, by order in writing, direct that a person who immediately before the transfer day held any salaried office or employment in the staff establishment of the former University of New England is taken for the purposes of this Schedule to have held that office or employment in a specified former campus, and any such direction has effect accordingly.

(2) The Minister is not to give a direction under this clause without first consulting with the Vice-Chancellor of each University to be affected by the proposed direction and unless satisfied that the Universities have been given a reasonable opportunity to resolve by agreement between themselves any dispute with which the proposed direction is concerned.

Transfer of staff generally
5.
(1) Each officer of a former campus becomes, on the transfer day, an officer of the University.

(2) Except as provided by this Part or the Regulations, the terms and conditions on which an officer of a former campus becomes an officer of the University are the same as those on which he or she was an officer of the former campus.

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Remuneration and tenure
6.
(1) An officer of a former campus who, pursuant to this Part, becomes an officer of the University becomes such an officer on the same terms and conditions as to remuneration, and duration of appointment, as those on which he or she was employed at the former campus immediately before the transfer day.

(2) Such part of the remuneration referred to in subclause (1) as is salary or wages is subject to any adjustment necessary to give effect to any fluctuation in the applicable basic wage in force under Part 2 of the Industrial Relations Act 1991 until the salary is, or the wages are, lawfully varied.

Superannuation
7.
(1) An officer of a former campus who, pursuant to this Part, becomes an officer of the University:

(a) may continue to contribute to any superannuation scheme to which the person was a contributor immediately before becoming an officer of the University; and
(b) is entitled to receive any payment, pension or gratuity accrued or accruing to the person under any such scheme, as if he or she had continued to be such a contributor during his or her service as an officer of the University.

(2) Service by an officer of a former campus as an officer of the University is taken to be service as an officer of the former campus for the purposes of any law under which the officer continues to contribute to any such scheme or by which an entitlement under any such scheme is conferred.

(3) An officer of a former campus who, pursuant to this Part, becomes an officer of the University is regarded as an officer or employee, and the University is regarded as the employer, for the purposes of the superannuation scheme to which he or she is entitled to contribute under this clause.

(4) If a person would, but for this subclause, be entitled under subclause (1) to contribute to a superannuation scheme or to receive any payment, pension or gratuity under any such scheme:

(a) the person is not so entitled on the person’s becoming a contributor to any other superannuation scheme; and
(b) the provisions of subclause (3) cease to apply to or in respect of the person and the University where the person becomes a contributor to any such other superannuation scheme.

(5) Subclause (4) does not prevent the payment to an officer of a former campus, on the officer’s ceasing to be a contributor to a superannuation scheme, of such amount as would have been payable to the officer if the officer had ceased, by reason of resignation, to be such a contributor.

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Annual leave, long service leave and sick leave
8.
(1) An officer of a former campus who, pursuant to this Part, becomes an officer of the University retains any rights to:

(a) annual leave; and
(b) leave in the nature of long service leave; and
(c) sick leave, accrued or accruing to the person as an officer of the former campus.

(2) A person’s entitlement to any such leave is to be calculated:

(a) for such part of any period during which that leave accrued or was accruing as occurred before the transfer day - at the rate for the time being applicable to the officer, as an officer of the former campus, before that day; and
(b) for such part of that period as occurred after the transfer day – at the rate for the time being applicable to the officer, as an officer of the University, after that day.

No entitlement to dual benefits
9. An officer of a former campus who, pursuant to this Part, becomes an officer of the University is not entitled to claim, both under this Act and any other Act, dual benefits of the same kind in respect of the same period of service.

Casual staff
10.
(1) Each casual staff member of a former campus becomes, on the transfer day, a casual staff member of the University.

(2) A casual staff member of a former campus who, pursuant to this clause, becomes a casual staff member of the University becomes such a staff member on the same terms and conditions (including conditions as to remuneration) as those on which he or she was employed at the former campus immediately before the transfer day.

(3) Such part of the remuneration referred to in subclause (2) as is salary or wages is subject to any adjustment necessary to give effect to any fluctuation in the applicable basic wage in force under Part 2 of the Industrial Relations Act 1991 until the salary is, or the wages are, lawfully varied.

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Fixed term contracts
11. A fixed term contract in force, immediately before the transfer day, between a person and the former University of New England in relation to a former campus (being a contract under which the person performed services for that campus):

(a) is taken, for the remainder of its term, to be a contract in the same terms, between the person and the University, under which the University assumes the rights and obligations of the former University of New England; and
(b) may be arbitrated, terminated or renewed in any manner provided by the contract.

Part does not apply to former CEO’s etc.
12. This Part does not apply to a person holding office as chief executive officer of a member of the University network under the University of New England Act 1989, or as Vice-Chancellor under that Act, as provided by clause 19 (Removal of current office holders) of Schedule 3 to the University of New England Act 1993.

Operation of this Part generally
13.
(1) Nothing in this Part affects the operation of the Industrial Relations Act 1991.

(2) Neither the contract of employment nor the period of employment of a person is taken to have been broken by the operation of this Part for the purposes of any law, award or agreement relating to the employment of that person.

(3) A person is not entitled to receive any payment or other benefit merely because the member ceases to be a member of staff of a former campus by the operation of this Part.

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Part 3- Property etc.

Definitions
14. In this Part:
“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;

“instrument” means an instrument (other than this Act) which creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgement, order and process of a court;

“liabilities” means all liabilities, debts and obligations (whether present or future and whether vested or contingent);

“rights” means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent).

What constitutes the assets etc. of a former campus
15.
(1) For the purposes of this Part, the assets, rights and liabilities of a former campus comprise:

(a) those assets, rights and liabilities of the former University of New England that relate to the former campus; and
(b) any assets, rights and liabilities of the former University of New England that the Minister directs by order in writing are to be regarded as assets, rights or liabilities of the former campus.

(2) The Minister may in a direction under this clause specify a particular day that is later than the commencement of this clause as the transfer day for the purposes of any asset, right or liability to which the direction relates and the day so specified then becomes the transfer day for the purposes of the operation of this Schedule in relation to that asset, right or liability.

(3) The Minister is not to give a direction under this clause without first consulting with the Vice-Chancellor of each University to be affected by the proposed direction and unless satisfied that the Universities have been given a reasonable opportunity to resolve by agreement between themselves any dispute with which the proposed direction is concerned.

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Transfer of assets etc.
16.
(1) On and from the transfer day:

(a) the assets that comprise any legal or equitable interest in real property of the college of the former University of New England at Coffs Harbour (known as the Coffs Harbour Centre) vest in the Minister by force of this clause and without the need for any conveyance, transfer, assignment or assurance;
(b) the assets of a former campus (other than those provided for by paragraph (a)) vest in the University by force of this clause and without the need for any conveyance, transfer, assignment or assurance;
(c) the rights and liabilities of a former campus become by force of this clause the rights and liabilities of the University;
(d) all proceedings relating to a former campus commenced before the transfer day by or against the former University of New England and pending immediately before the transfer day are taken to be proceedings pending by or against Southern Cross University;
(e) anything done or omitted to be done in relation to a former campus before the transfer day by, to or in respect of the former University of New England is (to the extent that it has any force or effect) taken to have been done or omitted to be done by, to or in respect of Southern Cross University;
(f) a reference in any other Act, in any instrument made under any Act or in any document of any kind to a former campus is (to the extent that it relates to a former campus) to be read as, or as including, a reference to the University, or to the Minister for the purposes of paragraph (a).

(2) The University has the control and management of land that was under the control and management of the former University of New England in relation to a former campus immediately before the transfer day, subject to any directions of the Minister in the case of land comprising an asset to which subclause (1) (a) applies.

(3) The assets of a former campus vested in the University or the Minister by this clause are vested subject to any trusts or conditions subject to which they were held immediately before the transfer day and (in the case of assets vested in the University) are to be applied by the University for the purposes of the University.

(4) The transfer, by this Part, of the control and management of any asset to the University does not affect any power of the person or body by whom the control and management of that asset has been conferred, or of any lawful successor of that person or body:

(a) to remove the control and management of that asset from the University; or
(b) to vary the conditions subject to which the control and management of that asset may be exercised by the University,

that could have been exercised by that person or body, or by that lawful successor, in respect of that property had this Act not been enacted.

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Operation of Part
17.
(1) The operation of this Part 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; or
(d) as an event of default under any contract or other instrument.

(2) No attornment to Southern Cross University or the Minister by a lessee from the former University of New England is required.

(3) Any instrument executed only for:

(a) a purpose ancillary to or consequential on the operation of this Part; or
(b) the purpose of giving effect to this Part,

is not chargeable with stamp duty and is exempt from payment of any other fee or charge that would otherwise be payable under any other Act in respect of the registration of any such instrument.

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