Harbours (Amendment) Act, 2000

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Transfer of functions from one company to another company, etc.

1.—The Harbours Act, 1996 , is amended by the substitution of the following for section 43:

“43.—(1) Where the Minister is of the opinion that—

(a) the functions conferred on a company or companies by or under this Act in respect of a harbour or harbours could in a more cost-effective and efficient manner be performed by another company being a company established pursuant to section 7, or

(b) the functions conferred on more than one company by or under this Act in respect of a harbour or harbours could in a more cost-effective and efficient manner be performed by amalgamating the functions of the companies concerned and the formation and registration of a new company under the Companies Acts (in this Act referred to as a ‘new company’),

he or she may, in respect of the said functions of the company or companies as the case may be (which or each of which is referred to in this section as a ‘transferor company’) by order—

(i) in the case of paragraph (a), transfer those functions to that other company, or

(ii) in the case of paragraph (b), transfer those functions to the new company,

and a company to which paragraph (i) or (ii) relates is in this section referred to as the ‘transferee company’.

(2) (a) Where in respect of a transferee company to which subsection (1)(b) relates the Minister is of the opinion that the efficient and effective implementation of the amalgamation of the functions of the transferor companies so requires, he or she may by order provide that, during a period not exceeding 2 years (in this subsection referred to as the ‘specified period’) from the date (in this subsection referred to as the ‘transfer date’) that the functions of the transferor companies were transferred to the transferee company, the number of directors including the chairperson shall be a specified number not exceeding 5.

(b) (i) The directors, including the chairperson, of a transferee company to which paragraph (a) relates shall be appointed by the Minister with the consent of the Minister for Finance and be appointed for the specified period.

(ii) The Minister may, with the consent of the Minister for Finance, fill any vacancies on a board of directors to which this paragraph relates including, where the number of directors provided for is less than 5, any subsequent increase in the number of directors in accordance with this subsection.

(iii) Sections 30 and 36 shall not apply in respect of appointments to which this paragraph relates.

(iv) Section 17(5) shall not apply in respect of meetings of directors who were appointed under this paragraph.

(c) (i) Each person who on the transfer date was a director of a transferor company shall, if willing, be a member of an advisory board (in this subsection referred to as an ‘advisory board’) to the transferee company, and where any such person is not so willing there shall be deemed to be a vacancy which may be filled in accordance with subparagraph (v).

(ii) There may be an advisory board in respect of a transferor company.

(iii) An advisory board shall, if appointed, meet at the direction of the transferee company and stand appointed until the end of the specified period (including any extension of the period under paragraph (d)).

(iv) Section 17(5) shall apply to an advisory board as if references to the directors were references to the members of the advisory board concerned.

(v) The Minister may fill vacancies on an advisory board in the same manner as he or she would have been able to fill vacancies on the board of the transferor company concerned had not an order been made under paragraph (a) in respect of that company.

(vi) The remuneration of members of an advisory board shall be determined by the Minister with the consent of the Minister for Finance.

(d) The Minister may, for the purposes of paragraphs (a) and (c)(iii), by order extend the specified period referred to in either or both of those paragraphs but no such extension shall extend that period beyond 2 years from the transfer date.

(e) In respect of any period after the specified period, the directors of the transferee company shall be appointed in accordance with the articles of association of the transferee company and to which section 17 relates. A person who was appointed a director by virtue of paragraph (b) shall be eligible for reappointment.

(3) An order under this section shall provide for such of the following matters as the circumstances require:

(a) where the proposed transferee company is to be a new company—

(i) the formation and registration of a private company under the Companies Acts which conforms with the conditions laid down in this Act,

(ii) the name, headquarters location and capital formation of the new company,

(iii) the area of the harbour of the new company,

(b) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company,

(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company,

(d) the transfer into the employment of the transferee company of members of the staff of any transferor company and the scales of pay and conditions of service to apply to such staff,

(e) an alteration in the name of the transferee company,

(f) the dissolution, without winding-up, of any transferor company and the disposal for the benefit of the Exchequer of any of its property which is surplus to the requirements of the transferee company,

(g) the functions of advisory boards, their relationship with the transferee company concerned and the holding of joint meetings between a transferee company and one or more of its advisory boards,

(h) such incidental, consequential and supplementary matters as are necessary to secure that the transfer of functions shall be fully and effectively carried out.

(4) (a) As respects a member of the staff of a transferor company transferred into the employment of a transferee company by an order under this section, the provisions of sections 39, 40 and 41 shall, subject to paragraphs (b) and (c) and to the extent that they applied to that member before such transfer, continue to apply to him or her after such transfer and while he or she remains in the employment of the transferee company and for this purpose references in the said provisions to a company shall be construed as references to the transferee company and the said provisions shall otherwise be construed so as to have effect in relation to the said person while he or she remains in such employment.

(b) In the application of sections 39, 40 and 41 by virtue of this subsection, references (however expressed) to a person transferred to a company under section 38 shall be construed as including such a person who is subsequently transferred to a new company.

(c) Where the chief executive or the harbour master of a transferor company transfers into the employment of the transferee company, then nothing in paragraph (a) or in the provisions applied by that section shall be construed as requiring their appointment as chief executive or harbour master, respectively, of the transferee company but this paragraph shall not otherwise be construed as affecting the scales of pay, conditions of service and terms of office of the persons concerned.

(5) References, however expressed, in this Act to a company's harbour shall, where the context so admits, be construed as including the harbour of a new company.

(6) Nothing in subsection (1)(b) or (4)(a) shall be construed so as to prevent the Minister from causing a company to be formed and registered under the Companies Acts for the purposes of this section before the making of an order under this section.”.