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Public Enterprise Act 1996

LAWS OF FIJI

PUBLIC ENTERPRISE ACT, 1996

ARRANGEMENT OF SECTIONS

PART 1 - PRELIMINARY


SECTION


1. Short title
2. Commencement
3. Definitions
4. Act binds State
5. Extraterritorial operation

PART 2 RE-ORGANISATION AND CORPORATISATION OF GOVERNMENT ENTITIES

DIVISION 1 - OVERVIEW OF RE-ORGANISATION PROCESS


6. Meaning of re-organisation
7. Purpose of re -organisation
8. Application of this re-organisation procedure
9. Who is to be re-organised
10. Key principles of re-organisation

DIVISION 2 - OVERALL DIRECTION OF RE-ORGANISATION


11. Responsibility for re-organisation
12. Ministerial responsibility
13. Final control of re-organisation process

DIVISION 3 - RE-ORGANISATION PROCEDURE

14. Nomination of government entity to become Re-organisation Enterprise
15. Public Enterprise Minister to consult relevant Minister
16. Nomination does not affect legal personality
17. Application of other laws to Re-organisation Enterprises

DIVISION 4 - PREPARATION OF RE-ORGANISATION CHARTER


18. Meaning of re-organisation charter
19. Minister may direct re-organisation
20. Re-organisation Enterprise may become Government Commercial Company after
charter
21. Public Enterprise Minister may cause draft charter to be prepared and submitted
22. Matters to be included in the re-organisation charter
23. Details about preparation of charter to Part C of Schedule 2
24. Draft charter to be given to Ministers
25. Amendment of re-organisation charter
26. Public Enterprise Minister may give directions

DIVISION 5 - IMPLEMENTATION OF RE-ORGANISATION CHARTER


27. Charter to be followed
28. Charter Administration Committee may be appointed
29. Details about Charter Administration Committees
30. Directions about charter implementation

DIVISION 6 - BOARD OF DIRECTORS AND CHIEF EXECUTIVE OFFICER


31. Boards to be re-appointed
32. Duty of existing Board of directors
33. Interim Board of directors
34. Chief Executive Officer post to be advertised

DIVISION 7 - STRUCTURAL CHANGES TOWARDS CORPORATISATION

35. Rules for interim changes are in Part E of Schedule 2
36. Rules for transferring assets and liabilities are in Part F of Schedule 2
37. Legal rights etc. during re-organisation
38. Regulations may deal with other matters
39. Transitional leave entitlements
40. Non-application of taxation on re -organisation

PART 3 - GOVERNMENT COMMERCIAL COMPANIES

DIVISION 1 - BASIC CONCEPTS


41. Meaning of "Government Commercial Company"
42. Purpose of listing as Government Commercial Company
43. Principal objective of Government Commercial Company

DIVISION 2 - GOVERNMENT COMMERCIAL COMPANIES MAY BE DECLARED


44. Minister may declare a Government Commercial Company
45. Minister may alter Schedule 3

DIVISION 3 - APPLICATION OF LAWS TO GOVERNMENT COMMERCIAL COMPANIES


46. Status as Government Commercial Company does not affect legal status
47. Application of Companies Act to Government Commercial Companies
48. Application of other laws to Government Commercial Companies
49. Ministers in charge of Government Commercial Company

DIVISION 4 – ACCOUNTABILITY


50. Reporting and Accountability

DIVISION 5 -EMPLOYEES


51. Employment with a Government Commercial Company

DIVISION 6 - FINANCE


52. Payment of dividends
53. Interim dividends

DIVISION 7 - ACQUISITION AND DISPOSAL OF MAIN UNDERTAKINGS AND SUBSIDIARIES


54. Acquisition and disposal of main undertakings
55. Acquisition and disposal of subsidiaries

DIVISION 8 - BOARD OF DIRECTORS


56. Boards may be re-appointed
57. Role of Board in a Government Commercial Company

DIVISION 9 - GENERAL RESERVE POWER OF PUBLIC ENTERPRISE MINISTER


58. Reserve power of Public Enterprise Minister to give directions in public interest
59. Government Commercial Company and Board not otherwise subject to government direction

DIVISION 10 - LEGAL CAPACITY AND POWERS

60. Status of Government Commercial Company

DIVISION 11 - SHARES IN GOVERNMENT COMMERCIAL COMPANIES


61. Number of shareholders
62. Shareholders to be nominated by Ministers
63. Shareholders shall be certain Permanent Secretaries and Supervising Officers
64. Shareholders hold shares for State etc.
65. Transfer, issue etc. of shares
66. Shareholder to act on advice of Minister
67. Ministers and Shareholders not directors etc.

DIVISION 12 - MEMORANDUM AND ARTICLES OF A GOVERNMENT
COMMERCIAL COMP ANY


68. Memorandum and Articles shall not be inconsistent with Act or Companies Act

DIVISION 13 - NON-COMMERCIAL OBLIGATIONS


69. Non-commercial obligations
70. Meaning of "non-commercial obligations"
71. Payment by State

PART 4 - COMMERCIAL STATUTORY AUTHORITIES

DIVISION 1 - BASIC CONCEPTS


72. Meaning of "Commercial Statutory Authority"
73. Purpose of listing as a Commercial Statutory Authority

DIVISION 2 - COMMERCIAL STATUTORY AUTHORITIES MAY BE DECLARED


74. Minister may declare a Commercial Statutory Authority
75. Minister may alter Schedule

DIVISION 3 - APPLICATION OF LAWS TO A COMMERCIAL STATUTORY AUTHORITY


76. Status as Commercial Statutory Authority does not affect legal status etc.
77. Application of other laws to Commercial Statutory Authority
78. Relevant Minister of Commercial Statutory Authority

DIVISION 4 - ACCOUNTABILITY


79. Reporting and accountability

DIVISION 5 -EMPLOYEES


80. Employment with a Commercial Statutory Authority

DIVISION 6 – FINANCE



81. Payment of dividends
82. Interim dividends

DIVISION 7 - GENERAL AUTONOMY OF COMMERCIAL STATUTORY AUTHORITY

83. Commercial Statutory Authority and Board not otherwise subject to government direction

DIVISION 8 - LEGAL CAPACITY AND POWERS

84. Status of Commercial Statutory Authority

PART 5 - REPORTING AND ACCOUNTABILITY

DIVISION 1 - GENERAL


85. Application
86. Purpose of this Part

DIVISION 2 - CORPORATE PLAN

Sub-division 1 - General


87. Government Commercial Company and Commercial Statutory Authority shall have corporate plan
88. Corporate plan to apply to subsidiaries
89. Guidelines for corporate plan

Sub-division 2 - Preparation and modification of corporate plan


90. Draft corporate plan
91. Adoption of draft corporate plan
92. Modifications of corporate plan

DIVISION 3 - STATEMENT OF CORPORATE INTENT


93. Government Commercial Company and Commercial Statutory Authority have statement of corporate intent
94. Statement of corporate intent to apply to subsidiaries
95. Matters to be included in statement of corporate intent
96. Draft statement of corporate intent
97. Adoption of statement of corporate intent by Commercial Statutory Authority
98. Adoption of statement of corporate intent by Government Commercial Company
99. Modifications of statement of corporate intent
100. Audit
101. Half-yearly reports
102. Draft annual report and unaudited accounts
103. Annual report and audited accounts
104. Deletion of commercially sensitive matters from annual report etc.
105. Board to keep Ministers informed
106. Information to be laid before Parliament

DIVISION 5 -EMPLOYEES


107. Division applies to subsidiaries
108. Employment and industrial relations plan

DIVISION 6 - MISCELLANEOUS


109. Monitoring and assessment of Government Commercial Companies and Commercial Statutory Authorities

PART 6 -GENERAL

110. Regulations
111. Validity of certain transactions

SCHEDULE 1
KEY PRINCIPLES OF PUBLIC ENTERPRISE REFORM


• Clarity of objectives
• Management authority and autonomy
• Strict accountability for performance
• Level playing field

SCHEDULE 2


SECTION

PART A - LIST OF RE-ORGANISATION ENTERPRISES

PART B - RULES ABOUT MINISTERS' RESPONSIBILITY FOR RE-
ORGANISATION ENTERPRISES

2B1 Relevant Ministers of Re -organisation Enterprises

PART C - RULES ABOUT FORMULATION OF DRAFT
REORGANISATION CHARTER

2C1 Minister may determine other matters relevant to draft charter preparation
2C2 Public Enterprise Minster may give directions to re-organisation enterprise about charter preparation

2C3 Charter preparation committee may be appointed
2C4 Conduct of meetings and other business
2C5 Terms of appointment 2C6 Resignation and removal from office

PART D - RULES ABOUT CHARTER ADMINISTRATION COMMITTEE


2D1 Conduct of meetings and other business
2D2 Terms of appointment
2D3 Resignation and removal from office

PART E - RULES FOR INTERIM CHANGES DURING RE-ORGANISATION

2E1 Purpose of rules under this Part
2E2 Ministers may direct formation or participation in formation of company
2E3 Memorandum and articles
2E4 Establishment of new statutory authorities
2E5 Entities that are parts of bodies corporate

PART F - RULES FOR TRANSFERRING ASSETS AND LIABILITIES


2F1 Transfer of Assets and liabilities
2F2 General provisions relating to transfer of assets and liabilities

SCHEDULE 3 LIST OF GOVERNMENT COMMERCIAL COMPANIES

SCHEDULE 4 LIST OF COMMERCIAL STATUTORY AUTHORITIES

-----------------------------------------

I assent.


[L.S.]

K.K.T. MARA President

[23 December 1996]

AN ACT

TO PROVIDE THE REFORM OF GOVERNMENT COMMERCIAL ENTERPRISES AND, IN PARTICULAR, TO PROVIDE FOR-

A THE RE-ORGANISATION OF NOMINATED
GOVERNMENT ENTITIES;

B THE CORPORATISATION OF NOMINATED
GOVERNMENT ENTITIES;

C THE ESTABLISHMENT OF THE PRINCIPAL OBJECTIVES OF GOVERNMENT COMMERCIAL COMPANIES TO BE PURELY COMMERCIAL;

D THE REGULATION OF THE STRUCTURE, AND RELATIONSHIP WITH THE GOVERNMENT, OF GOVERNMENT COMMERCIAL COMPANIES;

E THE REGULATION OF THE REPORTING AND ACCOUNTABILITY OF GOVERNMENT COMMERCIAL COMPANIES AND COMMERCIAL STATUTORY AUTHORITIES.

ENACTED by the Parliament of Fiji -

PART 1 PRELIMINARY

Short Title


1. This Act may be cited as the Public Enterprise Act, 1996.

Commencement


2. (1) This Act shall come into force on a date or dates to be fixed by the Public Enterprise Minister by notice in the Gazette.

(2) The Minister may by one or more notices fix different dates for the coming into force of different provisions of this Act.

Definitions

3. In this Act, unless the context otherwise requires, -

"Act" includes regulations and other subsidiary legislation made under the Act;

"articles" means articles of association;

"Board", in relation to a Government Commercial Company, a Commercial Statutory Authority, Re-organisation Enterprise or a government entity, means its Board of directors or governing body, by whatever name called;

"Chief Executive Officer" means the person, (by whatever name called) who has executive control of the relevant entity; and if there is doubt, then the Chief Executive Officer is the position s specified by the Public Enterprise Minister in written directions given under section 30 of this Act;

"Commercial Statutory Authority" has the meaning given by section 72; namely - any statutory authority that is declared under section 74 (1) to be a Commercial Statutory Authority and is listed in Schedule 4 of this Act;

"company" means a company formed and registered under the Companies Act (Cap. 247), or an existing company within the meaning of the Act;

"Consultation" - if a provision of this Act requires that the Public Enterprise minister shall consult with another person, or to act only after consultation with another, the Public Enterprise Minister is required to advise the other person of the situation and seek the views of the other, and take into account such views as are provided within a reasonable time (not exceeding one month); and shall not after receiving such views act in his own deliberate judgement without the approval of Cabinet.

"department" means a department of government;

"director", in relation to a Government Commercial Company or Commercial Statutory Authority, includes a chairperson or deputy chairperson by whatever name called;

"Gazette" means the Fiji Republic Gazette published by the order of the Government of Fiji and includes supplements thereto and any extraordinary Gazette as published;

"Government Commercial Companies" has the meaning given by section 41; namely any government company that is declared to be a Government Commercial Company under section 44 (1) and listed in Schedule 3 of this Act;

"government company" means a company, all of the stock or shares in the capital of which is or are beneficially owned by the State, whether such shares are held in the name of a Minister, a public officer, a nominee of the State or otherwise;

"government entity " means

(a) a government company or part of a government company;

(b) a statutory authority or a division, branch or other part of a statutory authority, by whatever name called;

(c) a ministry or department or a division, branch or other part of a ministry or department, by whatever name called;

(d) an entity prescribed by regulation, and includes-

(e) a Government Commercial Company or any part of a Government Commercial Company or a subsidiary of a Government Commercial Company and;

(f) a Commercial Statutory Authority or any part of a Commercial Statutory Authority or a subsidiary of a Commercial Statutory Authority;

"key principles of public enterprise reform" means the principles set out in Schedule 1;

"memorandum" means memorandum of association;

"Minister for Finance" means the Minister to whom responsibility for Finance is for the time being assigned;

"proposed subsidiary" of a Re-organisation Enterprise means a government entity which is declared by regulation to be a proposed subsidiary of a Re -organisation Enterprise;

"Public Enterprise Act" means this Act, as amended from time to time;

"Public Enterprise Minister" means the Minister to whom responsibility for this Act is for the time being assigned;

"regulation" means a regulation made under this Act;

"relevant Minister" –

(a) in relation to a government commercial company, has the meaning given by section 49;

(b) in relation to a commercial statutory authority, has the meaning given in section 78; and

(c) in relation to a re -organisation enterprise has the meaning given in part b of schedule 2;

and if an entity is both a Re-organisation Enterprise and either a Government Commercial Company or a Commercial Statutory Authority, then there may be different relevant Ministers for that entity for the purposes of different Parts of this Act;

"Re-organisation Enterprise" means a government entity that is nominated under section 14 to be a Re -organisation Enterprise and is listed in Part A of Schedule 2, and for the purposes of Division 6 of Part 2, the term includes a subsidiary of the entity;

"re-organisation charter" of a Re-organisation Enterprise means the re-organisation charter as amended from time to time;

"share" means-

(a) in relation to an entity that has a share capital, of any class;

(b) in relation to an entity that has a capital but does not have a share capital, an interest in or right to the whole or any part of that capital other than an interest or right as a creditor;

(c) in relation to an entity that does not have a capital-

(i) an interest in or rights to any part of the assets of the company or entity, other than interest or right as a creditor; or

(iii) where there are no assets, a direct or contingent obligation to contribute money to or bear losses of the company or entity;
and

"shareholder" has a corresponding meaning;

"statement of corporate intent", in relation to a government Commercial Company or a Commercial Statutory Authority means its current statement of corporate intent;

"statutory authority" means a body corporate incorporated by or under any Act (excluding any company merely registered under the Companies Act) (Cap. 247);

"subsidiary" has the meaning given by section 156 of the Companies Act (Cap. 247) and includes, in relation to a Re-organisation Enterprise, a government entity that is declared by regulation to be a subsidiary of that Re-organisation Enterprise;

"tax" includes any tax, fee, duty, levy or charge;

Act binds State


4. This Act binds the State.

Extraterritorial Operation


5. This Act shall apply, as far as possible, to-

(a) land and things outside Fiji; and

(b) acts, transactions and things done, entered into or happening outside Fiji; and

(c) land, things acts and transactions (whether situated, done, entered into or happening) that would, apart from this act, be governed or other-wise affected by the law of another jurisdiction.

PART 2 RE-ORGANISATION AND CORPORATISATION OF GOVERNMENT ENTITIES

DIVISION 1 - OVERVIEW OF RE -ORGANISATION PROCESS

Meaning of re-organisation

6. A re-organisation under this Part is a structural reform process for nominated government entities that changes the conditions and (where required) the structure under which the entities operate so that they operate, as far as practicable, on a commercial basis and in a competitive environment and that -

(a) for the time being, provides for the continued public ownership of the entities as part of the re-organisation process; and

(b) allows the State, as owner on behalf of the people of Fiji, to provide strategic direction to the entities by setting financial and non-financial performance targets and non-commercial obligations.

Purpose of re-organisation

7. This Part of the Public Enterprise Act sets out a procedure for the re -organisation of government entities so that they can become -

(a) more efficient and productive;

(b) more accountable;

(c) better organised

Application of this re-organisation procedure

8. A re-organisation under this Part may be applied to any government entity, namely -

(a) a government company or part of a government company; or

(b) a statutory authority or a division, branch or other part of a statutory authority, by whatever name called; or

(c) a ministry or department, or a division, branch or other part of a ministry or department, by whatever name called; or

(d) an entity prescribed by regulation,
and including –

(e) a government commercial company or any part of a government commercial company or a subsidiary of a government commercial company; and

(f) a commercial statutory authority or any part of a commercial statutory authority or a subsidiary of a commercial statutory authority.

Who is to be re-organised

9. The re-organisation process commences for a government entity when it is made a Re-organisation Enterprise under section 14 of this Act.

Key Principles of re-organisation

10. (1) The objective of re -organisation is to make a government entity able to operate in compliance with the key principles of public enterprise reform.

(2) The key principles of public enterprise reform and their elements are set out in Schedule 1 of this Act.

DIVISION 2 OVERALL DIRECTION OF RE-ORGANISATION

Responsibility for re-organisation


11. (1) Responsibility for the various parts of the re-organisation process may be specified in -

(a) this Act or any instrument made under it;

(b) another law;

(c) the re-organisation charter; or

(d) any Direction under section 13.

(2) In all other cases, the Public Enterprise Minister has overall control of the re-organisation process, and where appropriate he is to act in consultation with the relevant Minister, Minister of Finance or the Prime Minister.

(3) The Public Enterprise Minister may delegate part or all of his functions under this Act.

Ministerial responsibility

12. The detailed rules for determining Ministerial responsibility in any re-organisation are set out in Part B of Schedule 2 of this Act.

Final control of re-organisation process

13. (1) The re-organisation process is designed to work best if all parties can agree, but if there is doubt or delay that is hindering the re-organisation process and subject to any provisions of this Act requiring consultation, the Public Enterprise Minister may, by notice in the Gazette, give a Direction about the re-organisation.

(2) If such a Direction is not complied with by any government entity or employee or officer of a government entity, the Public Enterprise Minister is hereby empowered to do all things necessary and reasonable to ensure that the Direction is complied with.

DIVISION 3 - RE-ORGANISATION ENTERPRISES

Nomination of government entity to become Re-organisation Enterprise

14. (1) The Public Enterprise Minister may, with the approval of Cabinet, by notice in the Gazette, nominate a government entity to be a Re-organisation Enterprise and insert it's name in Part A of Schedule 2 of this Act.

(2) A nomination is made under this section for the purpose of the government entity being re-organised, and it may be part of a process by which a government entity becomes a Government Commercial Company, a government company, a part of another government entity or any other government entity or part thereof.

(3) To remove any doubt, it is declared that the Public Enterprise Minister may nominate two or more government entities whether or not they are already Government Commercial Companies, to be a single Re-organisation Enterprise in order to achieve the purpose of re-organisation.

Public Enterprise Minister to consult relevant Minister and Minister of Finance

15. The Public Enterprise Minister shall not nominate a government entity to be a Re-organisation Enterprise unless he has consulted the relevant Minister and Minister of Finance.

Nomination does not affect legal personality

16. The nomination of an entity as a Re-organisation Enterprise does not, of itself, affect -

(a) the legal status or personality of the entity; or

(b) its functions and powers.

Application of other laws to Re-organisation Enterprises

17. (1) This Act applies to a Re-organisation Enterprise in precedence to anything in an Act that was enacted before the commencement of this Act.

(2) If there is an inconsistency between this Part and an Act enacted before the commencement of this Act, this Part prevails to the extent of the inconsistency.

(3) The Public Enterprise Minister may, with approval of Cabinet, make a regulation providing that an Act, or a provision of an Act, that -

(a) was enacted before the commencement of this Act; and

(b) established a government entity that is or becomes a re-organisation enterprise or provides for its structure, functions, powers, management, operation or accountability, applies to the re-organisation enterprise with any modifications that are prescribed by regulation.


(4) A regulation may be made for the purposes of subsection (3) only to the extent necessary to bring the Act or provision of the Act into conformity with this Act and the purposes of this Part.

(5) A regulation made for the purposes of subsection (3) may do any one or more of the following:

(a) change the name or title of the entity, of the Board and of the members of the Board of the re -organisation enterprise;

(b) change the number of members of the Board;

(c) vest in the Public Enterprise Minister or another person the power to appoint all or any of the members of the Board;

(d) determine the qualifications of persons for, or terms and conditions of, appointment to the Board;

(e) determine the manner of appointment of the members of the board and the senior executives of the entity;

(f) make such other changes to the constitution of the board as the Public Enterprise Minister determines.


(6) Subsection (5) does not limit subsection (3).

(7) A regulation may be made for the purposes of subsection (3) only after consultation with the Minister responsible for that Act.

(8) A regulation may be made for the purposes of subsection (3) only within 2 years from the day on which the particular Re-organisation Enterprise is nominated under section 14, unless the House of Representatives, by resolution, expressly authorises this time period to be extended.

DIVISION 4 PREPARATION OF RE-ORGANISATION CHARTER

Meaning of Re-organisation Charter

18. The re-organisation charter of a Re-organisation Enterprise sets out the steps by which, and the basis on which -

(a) the key principles of public enterprise reform and their elements, are to be implemented in relation to the re-organisation enterprise;

(b) the re-organisation process is to proceed; and

(c) are-organisation enterprise (if applicable) is to become a Government Commercial Company.

Minister may direct re-organisation


19. (1) The Public Enterprise Minister may direct a Re -organisation Enterprise to reorganise its affairs under section 30 following the preparation and approval of a re-organisation charter.

(2) The Public Enterprise Minister may also issue directions under section 26 to reorganise even if-

(a) are-organisation charter has not been prepared or approved; or

(b) are-organisation charter has not been fully prepared.

Re-organisation Enterprise may become Government
Commercial Company after charter


20. (1) A Re-organisation Enterprise that is not a Government Commercial Company or t0hat is part of a Government Commercial Company may become a Government Commercial Company following the preparation and implementation of a re-organisation charter.

(2) A government entity may also become a Government Commercial Company even if-

(a) it has not been declared to be a Re-organisation Enterprise; or

(b) a re-organisation charter has not been fully prepared; or

(c) a re-organisation charter has been prepared, but has not been fully implemented; or

(d) a re-organisation charter has not been prepared or implemented.

Public Enterprise Minister may cause draft charter to be prepared and submitted


21. (1) If the Public Enterprise Minister, after consulting the relevant Minister of a Re -organisation Enterprise, considers that the preparation and implementation of a re -organisation charter would facilitate the re-organisation process for the Re-organisation Enterprise, the Minister may determine that a draft re-organisation charter should be prepared and submitted to the Public Enterprise Minister and the relevant Minister.

(2) If the Public Enterprise Minister determines that a draft re-organisation charter should be prepared and submitted to the Public Enterprise Minister and the relevant Minister, the following provisions of this Division apply.

Matters to be included in draft re-organisation charter


22. (1) The Public Enterprise Minister, after consulting the relevant Minister, may determine that the draft re-organisation charter should contain among other things all or any of the following matters -

(a) an outline of how the key principles of public enterprise reform and their elements are to be applied to the Re-organisation Enterprise and a timetable for their application;

(b) if the Re-organisation Enterprise is not already itself a Government Commercial Company - a recommendation whether the Re -organisation Enterprise should become a Government Commercial Company and an outline of the reasons for the recommendation;

(c) an outline of any legislation under which the Re-organisation Enterprise is to operate after it is re-organised;

(d) target dates for the enactment and commencement of any legislation, including subsidiary legislation;

(e) a timetable for the adoption of appropriate systems of accounting by the Re-organisation Enterprise;

(f) a timetable for the adoption of commercial management and performance systems by the Re-organisation Enterprise;

(g) a timetable and method for valuing the assets of the Re-organisation Enterprise and determining its capital structure;

(h) recommendations regarding the activities that the Re-organisation Enterprise should undertake during and after its re-organisation;

(i) if the Re-organisation Enterprise is a company or is to become a company, recommendations regarding whether any part of the Re-organisation Enterprise or of a government entity should become a proposed subsidiary of the company;

(j) recommendations regarding whether the Re-organisation Enterprise should form or acquire a company that is a wholly owned subsidiary;

(k) recommendations regarding whether the Re-organisation Enterprise should transfer to a wholly owned subsidiary specified assets, liabilities or undertaking, in exchange for the issue of shares to the Re-organisation Enterprise, or otherwise;

(l) recommendations regarding whether the Re-organisation Enterprise should transfer to another government entity or to the State specified assets, liabilities or undertakings;

(m) recommendations regarding whether the Re-organisation Enterprise should guarantee a particular liability, or the liabilities generally of a wholly owned subsidiary;

(n) recommendations regarding whether the Re-organisation Enterprise should sell assets including shares;

(o) recommendations as to whether a Re-organisation Enterprise should relinquish or be divested of any license or monopoly.

(2) The Public Enterprise Minister, after consulting the relevant Minister, may also determine that the draft re-organisation charter should contain a timetable for identifying and dealing with any existing activities for the Re-organisation Enterprise that are of a policy formulation or regulatory nature.

Details about preparation of charter to Part C of Schedule 2

23. The rules about the formulation of a draft re-organisation charter are set out in Part C of Schedule 2 of this Act.

Draft Charter to be given to Ministers

24. (1) When the Re-organisation Enterprise's draft re-organisation charter has been prepared, the Re -organisation Enterprise or the Charter Preparation Committee shall give a copy of the draft charter to the Public Enterprise Minister and the relevant Minister.

(2) The Public Enterprise Minister, after consulting the relevant Minister, may return the draft charter to the Re-organisation Enterprise or committee and request it to -

(a) consider or further consider any matter and deal with the matter in the draft charter; and

(b) revise the draft charter in the light of its consideration or further consideration.

(3) If the Public Enterprise Minister is satisfied with the draft re-organisation charter and after consulting the relevant Minister he may approve the charter by Notice in the Gazette.

(4) If the Public Enterprise Minister is not satisfied with the draft re-organisation charter, the charter has no effect.

Amendment of re-organisation charter

25. The Public Enterprise Minister, after consulting the relevant Minister, may, at any time, in writing approve an amendment of, or make an amendment to, the Re-organisation Enterprises re-organisation charter.

Public Enterprise Minister may give directions

26 (1) In an appropriate case, even if a re-organisation charter has not been prepared or has not been fully prepared or has not been approved, the Public Enterprise Minister, after consulting the relevant Minister, may by Notice published in the Gazette, give written directions to a Re-organisation Enterprise to re-organise its affairs in accordance with those directions.

(2) Any directions given under subsection (1) may direct a Re-organisation Enterprise to do any one or more of the following -

(a) to form or acquire a company that is a wholly owned subsidiary;

(b) to transfer a wholly owned subsidiary specified assets, liabilities or undertakings, in exchange for the issue of shares to the Re-organisation Enterprise or otherwise;

(c) to transfer to another government entity or to the State specified assets, liabilities or undertakings;

(d) to guarantee a particular liability, or the liabilities generally of a wholly owned subsidiary;

(e) to relinquish or be divested of any licence or monopoly;

(f) such other matters as may be specified in the directions.


(3) The Re-organisation Enterprise shall ensure that a direction given to it under this section is complied with in relation to itself and its subsidiaries.

(4) The Directions given under this section are, for the purposes of Division 5,
deemed to be the Re-organisation Enterprise's re-organisation charter.

DIVISION 5 IMPLEMENTATION OF RE-ORGANISATION CHARTER

Charter to be followed

27. A re -organisation charter shall be implemented in the manner set out in the charter and, if any matter is not covered by the charter, the Public Enterprise Minister after consulting the relevant Minister may issue directions (under section 30 (1) as to implementation.

Charter administration committee may be appointed


28. (1) The Public Enterprise Minister, after consulting the relevant Minister, may appoint a charter administration committee to ensure that the Re-organisation Enterprise's re-organisation charter is implemented in a timely, efficient and effect way.

(2) The Public Enterprise Minister, after consulting the relevant Minister, may appoint any person, whether or not he is a public officer, to be a member of a charter administration committee.

(3) A member of a charter administration committee is not, in that capacity, a public officer.

Details about charter administration committee

29. The rules about charter administration committees are set out in Part D of Schedule 2 of this Act.

Directions about charter implementation


30. (1) The Public Enterprise Minister, after consulting the relevant Minister may give the Re-organisation Enterprise written directions in relation to the Re-organisation Enterprise that appear to him to be necessary or desirable to enable the Re-organisation Enterprise's re-organisation charter to be implemented.

(2) Without limiting subsection (1), if a charter administration committee has been appointed for the Re-organisation Enterprise, the Public Enterprise Minister, after consulting the relevant minister may direct the Re-organisation Enterprise -

(a) to give to the committee information about the Re-organisation Enterprise and its subsidiaries that the committee considers necessary or desirable for the implementation of the Re-organisation Enterprise's re-organisation charter; or

(b) to permit the committee to have access to records and other documents about the Re-organisation Enterprise and its subsidiaries that the committee considers necessary or desirable for the implementation of the Re-organisation Enterprise's re-organisation charter; or

(c) to take steps that the committee considers necessary or desirable for the implementation of the Re-organisation Enterprises re-organisation charter.


(3) The Re-organisation Enterprise shall ensure that a direction given to it under this section is complied with in relation to itself and its subsidiaries.

DIVISION 6 BOARD OF DIRECTORS AND CHIEF EXECUTIVE OFFICER OF RE-ORGANISATION ENTERPRISE

Boards to be re-appointed

31. (1) When a government entity becomes a Re-organisation Enterprise, its Board (if any) shall be re -appointed within 3 months.

(2) All existing appointments to the Board are terminable by the Public Enterprise Minister at any time within that period of 3months, but the Board shall continue to function normally until a new Board is appointed.

(3) The Public Enterprise Minister after consulting the relevant Minister and with the approval of the Prime Minister, shall appoint the new members of the Board in a re-appointment under subsection (1), in accordance with the applicable legal requirements and as if it was the Public Enterprise Minister who was specified therein as the appointing authority.

(4) Existing Board members are eligible for re-appointment.

(5) The Board members' appointments are terminable under this section despite any other provision in an Act or in any agreement or expectation relating to the term or conditions of any appointment to the Board.

(6) Nothing in this section affects any right to remuneration or compensation for loss of employment or office which might exist under the terms of a contract or otherwise according to law.

Duty of existing Board of Directors


32. (1) If a Re -organisation Enterprise or a subsidiary or proposed subsidiary of the Re -organisation Enterprise has a Board of directors or an equivalent body, it is the role of the Board or body -

(a) to implement the Re-organisation Enterprise's re-organisation charter and to comply with any directions given in accordance with the provisions of this Act; and

(b) to ensure that the Re-organisation Enterprise or subsidiary otherwise performs its functions in a proper, efficient and effective way.


(2) The Public Enterprise Minister, after consulting the relevant Minister, may remove members of the Board of a Re-organisation Enterprise, whether or not the Board has been re-appointed under section 31.

Interim Board of directors

33. (1) If a Re -organisation Enterprise does not have a Board of Directors or an equivalent body, a regulation under section 38 of this Act may provide that, on a specified day, the entity is to have an interim Board of directors.

(2) It is the role of the interim Board -

(a) to implement the Re-organisation Enterprise's re-organisation charter and to comply with any directions given in accordance with the provisions of this act; and

(b) to ensure that the entity otherwise performs its functions in a proper, efficient and effective way.

Chief Executive Officer post to be advertised


34. (1) When a government entity becomes a Re-organisation Enterprise, the post of Chief Executive Officer becomes terminable by the Public Enterprise Minister.

(2) The person then holding the position of Chief Executive Officer shall remain in post as acting Chief Executive Officer until the advertisement process is completed and the post is filled.

(3) Within 3 months of the nomination of a government entity as a Re-organisation Enterprise, the position of Chief Executive Officer in the Re-organisation Enterprise shall be advertised.

(4) If the Re-organisation Enterprise has a Board, there-appointed Board shall choose the best applicant for the post and make an appointment within 3 months of the re-appointment Board being first appointed.

(5) If the Re-organisation Enterprise has no Board, the Public Enterprise Minister, after consulting the relevant Minister, shall choose the best applicant for the post of Chief Executive Officer and make an appointment within 3 months of first placing the advertisement.

(6) An existing Chief Executive Officer is eligible for re-appointment.

(7) The post of Chief Executive Officer becomes terminable as set out in subsection (1) despite any other provision in an Act or in any agreement or expectation relating to the term of appointment to the post.

(8) Nothing in this section affects any right to remuneration or compensation for loss of employment or office which might exist under the terms of a contract or otherwise according to law.

DIVISION 7 STRUCTURAL CHANGES TOWARDS CORPORATISATION

Rules for interim changes in Part E of Schedule 2


35. The rules for the formation of companies, statutory authorities and other entities during the re-organisation process, are set out in Part E of Schedule 2 of this Act.

Rules for transferring assets and liabilities in Part F of Schedule 2

36. The rules relating to the transfer of assets and liabilities during the re-organisation process are set out in Part F of Schedule 2 of this Act.

Legal rights etc. during re -organisation.


37. (1) This Division has effect despite anything in any instrument.

(2) Nothing done under this Division in relation to a government entity -

(a) places the entity or the State in breach of contract or confidence or otherwise makes the entity or the State guilty of a civil wrong; or

(b) makes the entity or the State in breach of any instrument, including an instrument prohibiting, restricting or regulating the assignment or transfer of any right or liability or the disclosure of any information; or

(c) is taken to fulfill a condition –

(i) that allows a person to terminate an instrument or obligation or modify the operation or effect of an instrument or obligation;

or

(ii) that requires any money to be paid before its stated maturity; or

(d) releases a surety or other obligee (in whole or part) from an obligation.


(3) If, apart from this subsection, the advice or consent of a person would be necessary under an instrument in order to give effect to this Division, the advice is taken to have been obtained or the consent is taken to have been given:

PROVIDED THAT nothing in this Division affects the rights and duties of the Native Land Trust Board.

Regulations may deal with other matters

38. (1) The Public Enterprise Minister after consulting the Minister of Finance and the relevant Minister and with the approval of Cabinet may make regulations with respect to any matter for which it is necessary or convenient to make provision to facilitate the transition of a government entity to -

(a) a Government Commercial Company or Commercial Statutory Authority; or

(b) a subsidiary of a Commercial Statutory Authority or Government Commercial Company.


(2) Regulations under subsection (1) may make provision with respect to -

(a) whether and, if so, the extent to which a government entity is the successor-in-law of a particular entity;

(b) the assets and liabilities that are, or are not, assets and liabilities of the entity;

(c) the instruments that are, or are not, to apply to the entity, including whether or not the instruments are taken to be instruments –

(i) to which the entity is a party; or

(ii) that were given to, by or in favour of the entity; or

(iii) in which a reference is made to the entity; or

(iv) under which any money is or may become payable, or any other property is to be, or may become liable to be, transferred, conveyed or assigned, to or by the entity;

(d) the proceedings to which the entity becomes a party in substitution for another person; and

(e) the existing officers and employees of the entity and their rights.


(3) The Public Enterprise Minister with the approval of Cabinet may, by regulation, declare that from such date as is specified, a government entity ceases to be a Re-organisation Enterprise and remove its name from Part A of Schedule 2 of this Act.

Transitional leave entitlements.


39. If -

(a) a person becomes employed by a Government Commercial Company in a permanent or full-time capacity within 1 year after its nomination under section 14; and

(b) the person was an officer or employee of a government entity, who was employed in a permanent or full-time capacity, immediately before becoming employed by the Government Commercial Company; and

(c) the person had leave and other entitlements related to length of service at that time that had been accrued as an officer or employee of a government entity; and

(d) the person has not been paid in full for such leave and other entitlements, that person shall be treated as having accrued the entitlements as an employee of the Government Commercial Company.

Non-application of taxation on re-organisation

40. (1) The Minister for Finance may certify that a specific matter, instrument, transaction or thing is exempt from tax, and the matter, instrument, transaction or thing is accordingly exempt.

(2) Without affecting the generality of subsection (1), the following transactions are exempt from the imposition of tax -

(a) the acquisition of shares in a company in anticipation of the creation of a Government Commercial Company;

(b) the transfer of shares of a government company or any of its subsidiaries to the State, a nominee of the State or another government entity;

(c) the transfer of assets or liabilities to a State owned company or any of its subsidiaries under this Act.


(3) In this section, "tax" includes stamp duty and other tax, duty, fee, levy or charge.

PART 3 GOVERNMENT COMMERCIAL COMPANIES

DIVISION 1 - BASIC CONCEPTS

Meaning of "Government Commercial Company"

41. In this Act "Government Commercial Company" means any government company that is declared to be a Government Commercial Company under section 44 (1) and is listed in Schedule 3 of this Act.

Purpose of listing as Government Commercial Company

42. (1) This Part of the Public Enterprise Act provides a mechanism whereby-

(a) the Public Enterprise Minister, after consultation with the approval of Cabinet, can declare any government company to be a Government Commercial Company and thereby required to comply with this Act;

(b) Government Commercial Companies become liable to report regularly and be accountable;

(c) Government Commercial Companies can be reformed.

(2) The provisions of this Part are intended -

(a) to allow the State, as owner on behalf of the people of Fiji, to provide strategic direction to the Government Commercial Companies by setting financial and non-financial performance targets and non-commercial obligations; and

(b) to improve the accountability to the Government and the people of Fiji of Government Commercial Companies; and

(c) to regulate the relationship between government and Government Commercial Companies and their Boards.

Principal objective of Government Commercial Company


43 (1) The principal objective of every Government Commercial Company is to operate as a successful business and, to this end, to be as profitable and efficient as comparable businesses which are not owned by the State.


(2) The principal objective of every Government Commercial Company is to be achieved through the application of the key principles of public enterprise reform and their elements - as set out in Schedule 1 of this Act.

DIVISION 2 GOVERNMENT COMMERCIAL COMPANIES MAY BE DECLARED

Minister may declare a Government Commercial Company

44. (1) The Public Enterprise Minister may, after consulting the relevant Minister and Minister for Finance with the approval of the Cabinet, by Notice in the Gazette, declare any government company to be a Government Commercial Company, and insert its name in Schedule 3 of this Act.

(2) The company becomes a Government Commercial Company on the date so specified in the Notice, and if no such date is specified, the date that the Notice is published in the Gazette.

Minister may alter Schedule 3

45. (1) The Public Enterprise Minister may also, after consultation with the relevant Minister and Minister of Finance, by Notice in the Gazette, after Schedule 3 by -

(a) deleting the name of a government company; or

(b) amending any name contained in the Schedule to reflect a change in the name of the government company.


(2) The company ceases to be a Government Commercial Company on the date so specified in the Notice, and if no such date is specified, the date that the Notice is published in the Gazette.

DIVISION 3 APPLICATION OF LAWS TO GOVERNMENT COMMERCIAL COMPANIES

Status as Government Commercial Company does not affect legal status

46. (1) The listing of a government company as a Government Commercial Company does not, of itself, affect the legal status or personality of the company.

(2) The listing of a government company as a Government Commercial Company affects the functions and powers of the company to the extent provided for in this Act.

Application of Companies Act to Government Commercial Companies


47. The Companies Act applies to a Government Commercial Company except in so far as it is inconsistent with this Act.

Application of other laws to Government Commercial Companies


48. (1) This Act applies to a Government Commercial Company in precedence to anything in an Act that was enacted before the commencement of this Act.

(2) If there is an inconsistency between this Act and an Act enacted before the commencement of this Act, this Act prevails to the extent of the inconsistency.

(3) The Public Enterprise Minister may, with the approval of Cabinet, make a
regulation providing that an Act, or a provision of an Act, that -

(a) was enacted before the commencement of this Act; and

(b) established a government entity that becomes a Government Commercial Company or provides for its structure, functions, powers, management, operation or accountability,

applies to the Government Commercial Company with modifications prescribed by regulation.

(4) A regulation may be made for the purposes of subsection (3) only to the extent necessary to bring the Act or the provision of the Act into conformity with this Act and the purposes of this Part.

(5) A regulation shall not be made for the purposes of subsection (3) without the approval of the Minister responsible for that Act.

(6) A regulation may be made for the purposes of subsection (3) in anticipation of a government company becoming a Government Commercial Company.

(7) A regulation may be made, for the purposes of subsection (3) that reduces or removes any tax exemption previously in force in relation to a Government Commercial Company.

(8) A regulation may be made for the purposes of subsection (3) only within 2 years from the day on which the particular Government Commercial Company is declared under section 44, unless the House of Representatives, by resolution, expressly authorises this time period to be extended.

Ministers in charge of Government Commercial Company

49. (1) The Public Enterprise Minister has overall ministerial responsibility for Government Commercial Companies.

(2) The "relevant Minister" of a company which is or which is to become a Government Commercial Company is the Minister nominated by the Prime Minister by Gazette Notice.

(3) The Prime Minister may nominate any Minister to be a relevant Minister under subsection (2).

(4) The Prime Minister shall make the nomination by nominating the holder of a particular Ministerial office by reference to the title of the office concerned.

(5) The Prime Minister may, in an appropriate case, be nominated under subsection (2) to be the relevant Minister of the Government Commercial Company.

(6) The Prime Minister may nominate an Assistant Minister to be the relevant Minister of the Government Commercial Company under subsection (2).

(7) If the Prime Minister does not nominate a Minister under subsection (2) then despite any other provision of this Act which requires the Public Enterprise Minister to consult with the relevant Minister of a Government Commercial Company before doing an act, the Public Enterprise Minister need not consult with any other Minister before doing that act.

DIVISION 4 ACCOUNTABILITY

Reporting and accountability


50. Part 5 of this Act contains the provisions that apply to Government Commercial Companies about -

(a) corporate plans;

(b) statements of corporate intent;

(c) audits;

(d) half yearly reports;

(e) annual reports;

(f) accounts - unaudited and audited; and

(g) information to be laid before parliament.

DIVISION 5 EMPLOYEES

Employment with a Government Commercial Company

51. (1) Every Government Commercial Company shall have an Employment and Industrial Relations Plan.

(2) The provisions of this Act about such plans are contained in Part 5.

DIVISION 6 FINANCE

Payments of dividends

52. (1) Within 1 month after the end of each financial year, a Government Commercial Company's Board shall advise the Public Enterprise Minister and the relevant Minister of the recommendation that, in the light of the information then available to the Board on payment of dividends, it is likely to make under subsection (2).

(2) Within 3 months after the end of the financial year, the Board shall recommend to the Public Enterprise Minister and the relevant Minister that the Government Commercial Company and its subsidiaries pay a specified dividend, or not pay a dividend, for the financial year.

(3) The Board shall consult with the Public Enterprise Minister before making the recommendation.

(4) Within 2 months after receiving the recommendation, the Public Enterprise Minister shall, after consulting with the Minister for Finance and the relevant Minister, either -

(a) approve the recommendation; or

(b) direct the payment of a specified dividend having regard to the adequacy of the government commercial company's capital in relation to the size and nature of its business and the maximum amount that may be declared under the companies act.


(5) The dividend for a financial year shall not exceed the amount allowed under the Companies Act.

(6) The dividend shall be paid within 6 months after the end of the financial year or any further period that the Public Enterprise Minister allows.

Interim dividends


53 (1) The Public Enterprise Minister may, at any time after the sixth month in a financial year, require the Government Commercial Company's Board to make a recommendation about the payment of interim amounts to the State (including the times at which the amounts are to be paid) on account of the dividend that may become payable under section 52 (Payments of dividends) for the financial year.

(2) Within 1 month after receiving notice of the requirement, the Board shall make a recommendation to the Public Enterprise Minister and the relevant Minister.

(3) The Public Enterprise Minister shall, after consulting the relevant Minister and the Minister for Finance, within 2 months after receiving the recommendation, either-

(a) approve the recommendation; or

(b) having regard to the adequacy of the Government Commercial Company's capital in relation to the size and nature of its business and the maximum amount that may be declared under the companies act, direct the payment, at specified times, of specified amounts, or different specified amounts, on account of the dividend that may become payable for the financial year.


(4) A direction under subsection (3) (b) shall not direct the payment of an amount that exceeds the Government Commercial Company's estimated profit for the first 6 months of the financial year, after -

(a) provision has been made for income tax (if any); and

(b) any unrealised capital gains from upwards revaluation of non-current assets have been excluded.

DIVISION 7 ACQUISITION AND DISPOSAL OF MAIN UNDERTAKINGS AND SUBSIDIARIES

Acquisition and disposal of main undertakings

54. (1) A Government Commercial Company or a subsidiary of a Government Commercial Company shall not dispose of any of its main undertakings or acquire a main undertaking without the prior written approval of Cabinet on the recommendation of the Public Enterprise Minister.

(2) The Public Enterprise Minister shall not give his recommendation to Cabinet under subsection (1) unless he has first consulted the relevant Minister and Minister for Finance.

(3) In subsection (1) -

"main undertaking" means an undertaking specified in the Government Commercial Company's most recent statement of corporate intent as a main undertaking of the Government Commercial Company or subsidiary.

Acquisition and disposal of subsidiaries


55. (1) A Government Commercial Company or a subsidiary of a Government Commercial Company may -

(a) form, or participate in the formation of, a company that will become a subsidiary; or

(b) acquire shares or participate in any other transaction that will result in a body corporate becoming or ceasing to be a subsidiary;


only with the prior written approval of Cabinet on the recommendation of the Public Enterprise Minister.

(2) The Public Enterprise Minister shall not give his recommendation under subsection (1) unless he has first consulted the relevant Minister and the Minister for Finance.

DIVISION 8 BOARDS OF DIRECTORS

Boards may be re-appointed

56. (1) The Public Enterprise Minister, at any time after a government company is declared to be a Government Commercial Company, and after consulting the relevant Minister and with the approval of the Prime Minister, is hereby empowered to -

(a) terminate any or all appointments to the Board, and

(b) appoint new members of the Board,

in accordance with the applicable legal requirements, and as if it was the Public Enterprise Minister who was specified therein as the appointing authority.


(2) Existing Boards and Board members of a Government Commercial Company are to continue to operate normally after the declaration of the Government Commercial Company, pending the exercise by the Public Enterprise Minister of his power under subsection (1).

(3) Existing Board members are eligible for re-appointment.

(4) The board members' appointments are terminable under this section despite any other provision in an Act or in the company's memorandum and the articles or any agreement or expectation relating to the term of any appointment to the Board.

(5) This section also applies to a subsidiary of a Government Commercial Company unless the context otherwise requires.

(6) Nothing in this section affects any right to remuneration or compensation for loss of employment or office which might exist under the terms of a contract or otherwise according to law.

Role of Board in a Government Commercial Company

57 The role of a Government Commercial Company's Board includes the following matters -

(a) responsibility for the Government Commercial Company's commercial policy and direction;

(b) the appointment of the company's chief executive officer (by whatever name called);

(c) ensuring the Government Commercial Company achieves its principal objective as defined in section 43 of this act;

(d) ensuring that, as far as possible, the Government Commercial Company achieves, and acts in accordance with, its corporate plan and carries out the objectives outlined in its statement of corporate intent;

(e) accounting to the Public Enterprise Minister and the relevant minister for its performance as required by this act and other laws applying to the Government Commercial Company;

(f) ensuring that the Government Commercial Company otherwise performs its functions in a proper, effective and efficient way.

DIVISION 9 GENERAL RESERVE POWER OF PUBLIC ENTERPRISE MINISTER

Reserve power of Public Enterprise Minister to give directions in public interest


58. (1) The Public Enterprise Minister may give the Government Commercial Company's Board a written direction in relation to the Government Commercial Company and its subsidiaries, if the Public Enterprise Minister is satisfied that, because of exceptional circumstances, it is necessary to give the direction in the public interest.

(2) The Board shall ensure that the direction is complied with in relation to the Government Commercial Company and shall, as far as practicable, ensure that it is complied with in relation to its subsidiaries.

(3) Before giving the direction, the Public Enterprise Minister shall -

(a) consult the relevant Minister and Minister of finance;

(b) seek the views of the Board.


(4) The Public Enterprise Minister shall cause a copy of the direction to be published in the Gazette within 21days after it is given.

Government Commercial Company and Board not otherwise subject to government direction


59 Except as otherwise provided by this or another Act, a Government Commercial Company and its Board are not subject to direction by or on behalf of the Government (other than in the Government's role as shareholder).

DIVISION 10 LEGAL CAPACITY AND POWERS

Status of Government Commercial Company

60. A Government Commercial Company and any subsidiary of a Government Commercial Company -

(a) is not, and does not represent, the State;

(b) is not exempt from any tax imposed by or under any law of the State, merely because it is a Government Commercial Company or a subsidiary of a Government Commercial Company;

(c) cannot render the state liable for any debts, liabilities or obligations of the Government Commercial Company or a subsidiary of the public enterprise -

unless this or any other Act expressly so provides.

DIVISION 11 SHARES IN GOVERNMENT COMMERCIAL COMPANIES

Number of shareholders

61 A Government Commercial Company shall have only 2 shareholders.

Shareholders to be nominated by Ministers

62. (1) One shareholder shall be nominated by the Public Enterprise Minister.

(2) One shareholder shall be nominated by the Minister of Finance.

(3) If the Minister for Finance is the Public Enterprise Minister, he shall appoint both shareholders.

(4) A Minister shall make the nomination by nominating the holder of a particular office by reference to the title of the office concerned.

Shareholders shall be certain Permanent Secretaries or Supervising Officers

63. (1) Each shareholder shall be a permanent secretary or supervising officer.

(2) At least one shareholder shall be a permanent secretary or supervising officer within the Ministry of the Public Enterprise Minister.

Shareholders hold shares for the State etc.


64 (1) The State is the owner of all shares in a Government Commercial Company.

(2) A Government Commercial Company's shareholders hold their shares on behalf of the State.

(3) Shares in a Government Commercial Company held in the name of a person described by reference to the title of his office shall be held by the person for the time being holding the particular office.

(4) Notwithstanding any other written law or rule of law, it shall not be necessary to complete or register a transfer of shares consequent upon a change in the person holding the particular office.

(5) A shareholder may at any time or times, by written notice to the secretary of a Government Commercial Company, authorise (on such terms and conditions as are specified in the notice) such person as the shareholder thinks fit to act as the shareholder's representative at any or all of the meetings of shareholders of the Government Commercial Company or of any class of such shareholders, and any person so authorised shall be entitled to exercise the same powers on behalf of the shareholder as the shareholder could exercise if present in person at the meeting or meetings.

Transfer, issue etc. of shares


65. (1) Unless otherwise authorised by Cabinet, shares in a Government Commercial Company may be transferred only to another permanent secretary or supervising officer.

(2) The Public Enterprise Minister may execute a transfer of shares in a Government Commercial Company for the purpose of giving effect to this Act.

(3) If the Public Enterprise Minister executes a transfer of shares in a Government Commercial Company, the Government Commercial Company shall register the transfer and take any other action necessary to give effect to the transfer.

(4) Subject to the other provisions of this Division, this Act does not prevent a Government Commercial Company from issuing further shares to its shareholders.

Shareholder to act on advice of Minister

66. (1) A shareholder in a Government Commercial Company shall as far as practicable before exercising any right as a shareholder consult with the Minister who appointed him.

(2) A shareholder in a Government Commercial Company shall in exercising any right as a shareholder act in accordance with any general or special direction given to him in writing by the Minister who appointed him.

Ministers and shareholders not directors etc

67 (1) A Government Commercial Company's shareholders, the Public Enterprise Minister and a relevant Minister, shall not be treated as directors of the Government Commercial Company or any subsidiary or proposed subsidiary of a Government Commercial Company.

(2) A Minister or a permanent secretary or a supervising officer shall not incur civil liability for an act or omission done or omitted to be done honestly and without recklessness under, or for the purpose of, this Act in relation to a Government Commercial Company or a subsidiary or proposed subsidiary.

(3) A liability that would, apart from subsection (2), attach to a Minister or a permanent secretary or supervising officer, attaches instead to the State.

DIVISION 12 MEMORANDUM AND ARTICLES OF A GOVERNMENT COMMERCIAL COMPANY

Memorandum and articles shall not be inconsistent with this Act or Companies Act


68. (1) The memorandum and articles of a Government Commercial Company and its subsidiaries shall not be inconsistent with this Act or the Companies Act.

(2) If there is any inconsistency between this Act and the Companies Act regarding the memorandum and articles of a Government Commercial Company and its subsidiaries, this Act prevails to the extent of the inconsistency.

(3) If there is any inconsistency between this Act and the memorandum and articles of a Government Commercial Company and its subsidiaries, this Act prevails to the extent of the inconsistency.

(4) If there is any inconsistency between the Companies Act and the memorandum and articles of a Government Commercial Company and its subsidiaries, then, subject to subsection (2), the Companies Act prevails to the extent of the inconsistency.

DIVISION 13 NON-COMMERCIAL OBLIGATIONS

Non-commercial obligations - general

69. (1) Government Commercial Companies are to operate along commercial lines, but it is recognised that for the benefit of Fiji, there will be occasions when it is beneficial for Government Commercial Companies to undertake non-commercial activities.

(2) The non-commercial obligations that a Government Commercial Company is to perform are, as far as possible, to be specified in its statement of corporate intent.

(3) The costing of, funding for, or other arrangements to make adjustments relating to a Government Commercial Company's non-commercial obligations are also to be specified in its statement of corporate intent.

Meaning of "non-commercial obligations"

70. The "non-commercial obligations" of a Government Commercial Company are obligations to perform activities that its Board establishes to the satisfaction of the Public Enterprise Minister and Minister of Finance are not in the commercial interests of the Government Commercial Company.

Payment by the State

71 If the State requires a Government Commercial Company to perform a non-commercial obligation, and there is no agreement between them as to the calculation and payment of the cost thereof, then the State shall pay that the amount the Public Enterprise Minister, after consulting the Minister of Finance calculates is the full cost, direct and indirect, to the Government Commercial Company, after making such adjustments as are reasonable, including an adjustment for any ancillary or contingent benefits that accrue or are likely to accrue to the Government Commercial Company as a result of it providing the goods and services.

PART 4 COMMERCIAL STATUTORY AUTHORITIES

DIVISION 1 - BASIC CONCEPTS

Meaning of "Commercial Statutory Authority"


72 In this Act "Commercial Statutory Authority" means any statutory authority that is declared to be a Commercial Statutory Authority under Section 74(1) and is listed in Schedule 4 of this Act.

Purpose of listing as Commercial Statutory Authority

73. (1) This Part of the Public Enterprise Act provides a mechanism whereby -

(a) the Public Enterprise Minister, after consultation and with approval of Cabinet can declare any statutory authority to be a Commercial Statutory Authority and thereby required to comply with this Act;

(b) a Commercial Statutory Authority becomes liable to report regularly and be accountable;

(c) Commercial Statutory Authorities can be reformed.

(2) he provisions of this Part are intended to improve the accountability of Commercial Statutory Authorities, to the Government and the people of Fiji.

DIVISION 2 COMMERCIAL STATUTORY AUTHORITY MAY BE DECLARED

Minister may declare a Commercial Statutory Authority


74 (1) The Public Enterprise Minister may, after consulting the relevant Minister and Minister of Finance and with the approval of Cabinet, by notice in the Gazette, declare any statutory authority to be a Commercial Statutory Authority, and insert its name in Schedule 4 of this Act.

(2) The statutory authority becomes a Commercial Statutory Authority on the date so specified in the Notice, and if no such date is specified, the date that the Notice is published in the Gazette.

Minister may alter Schedule


75. The Public Enterprise Minister may also, after consulting the relevant Minister and the Minister of Finance, by Notice the Gazette, after Schedule 4 by -

(a) deleting the name of a statutory authority; or

(b) amending any name contained in the Schedule to reflect a change in the name of the statutory authority.

DIVISION 3 APPLICATION OF LAWS TO COMMERCIAL STATUTORY AUTHORITY

Status as Commercial Statutory Authority does not affect legal status etc.


76. (1) The listing of a statutory authority as a Commercial Statutory Authority does not, of itself, affect the legal status or personality of the statutory authority.

(2) The listing of a statutory authority as a Commercial Statutory Authority affects its functions and powers to the extent provided for in this Act.

Application of other laws to Commercial Statutory Authorities

77. (1) This Act applies to a Commercial Statutory Authority in precedence to anything in an Act that was enacted before the commencement of this Act.

(2) If there is an inconsistency between this Act and an Act enacted before the commencement of this Act, this Act prevails to the extent of the inconsistency.

(3) The Public Enterprise Minister may, with the approval of Cabinet, make a
regulation providing that an Act, or a provision of an Act, that -

(a) was enacted before the commencement of this Act; and

(b) established a government entity that becomes a Commercial Statutory Authority or provides for its structure, functions, powers, management, operation or accountability,

applies to the Commercial Statutory Authority with modifications prescribed by regulation.

(4) A regulation may be made for the purposes of subsection (3) only to the extent necessary to bring the Act or the provision of the Act into conformity with this Act and the purposes of this Part.

(5) A regulation may be made for the purposes of subsection (3), only after consultation with the Minister responsible for that Act.

(6) A regulation may be made for the purposes of subsection (3) in anticipation of a statutory authority becoming a Commercial Statutory Authority.

(7) A regulation may be made for the purposes of subsection (3) only after consultation with the Minister responsible for that Act.

(8) A regulation may be made for the purposes of subsection (3) only within 2 years from the day on which the particular Commercial Statutory Authority is declared under section 74, unless the House of Representatives, by resolution, expressly authorises this time period to be extended.

Relevant Minister of Commercial Statutory Authority.

78 (1) The "relevant Minister" of a statutory authority which is or which is to become a Commercial Statutory Authority is the Minister who has the duty to administer the legislation that established or provides for the structure or management of the authority.

(2) If there is not a Minister who is the relevant Minister under subsection (1), the relevant Minister is the Minister nominated by the Prime Minister by Gazette notice.

DIVISION 4 ACCOUNTABILITY

Reports and Accountability

79. Part 5 of this Act contains the provisions that apply to Commercial Statutory Authorities about -

(a) corporate plans;

(b) statements of corporate intent;

(c) audits

(d) half yearly reports;

(e) annual reports;

(f) accounts - unaudited and audited; and

(g) information to be laid before Parliament.

DIVISION 5 EMPLOYEES

Employment with a Commercial Statutory Authority

80. (1) Every Commercial Statutory Authority shall have an Employment and Industrial Relations Plan.

(2) The provisions of this Act about such plans are contained in Part 5.

DIVISION 6 FINANCE

Payment of dividends

81. (1) Within 1 month after the end of each financial year, a Commercial Statutory Authority's Board shall advise the Public Enterprise Minister and the relevant Minister of the recommendation that, in the light of the information then available to the Board on payment of dividends, it is likely to make under subsection (2).

(2) Within 3 months after the end of the financial year, the Board shall recommend to the Public Enterprise Minister and the relevant Minister that the Commercial Statutory Authority and its subsidiaries pay a specified dividend, or not pay a dividend, for the financial year.

(3) The Board shall consult with the Public Enterprise Minister before making the recommendation.

(4) Within 2 months after receiving the recommendation, the Public Enterprise Minister, after consulting the relevant Minister and Minister of Finance shall either -

(a) approve the recommendation; or

(b) direc