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Postal Services Bill


Postal Services Bill
Part 3 — Regulation of postal services

38

 

(4)   

The Transfer of Undertakings (Protection of Employment) Regulations 2006

apply to a transfer, by virtue of a transfer scheme, of rights and liabilities under

a contract of employment (whether or not the transfer would otherwise be a

relevant transfer for the purposes of those regulations).

(5)   

Where an employee of the Postal Services Commission becomes an employee

5

of OFCOM by virtue of a transfer scheme—

(a)   

a period of employment with that Commission is to be treated as a

period of employment with OFCOM, and

(b)   

the transfer to OFCOM is not to be treated as a break in service.

(6)   

The transfer of functions, property, rights or liabilities from the Postal Services

10

Commission to OFCOM under or by virtue of this Act is not to be treated as a

merger for accounting purposes.

63      

Interpretation of Part 3 etc

(1)   

In this Part—

“access condition” means a USP access condition or a general access

15

condition,

“access point” has the meaning given by section 28(5),

“consumer protection condition” has the meaning given by section 49,

“contravention” has the meaning given by subsection (4)(a),

“designated USP condition” has the meaning given by section 35,

20

“essential condition” has the meaning given by section 47,

“general access condition” has the meaning given by section 48,

“general universal service condition” has the meaning given by section 40,

“letter”—

(a)   

means any communication in written form on any kind of

25

physical medium to be conveyed to the person or address

indicated on the item itself or on its wrapping (excluding any

book, catalogue, newspaper or periodical), and

(b)   

includes a postal packet containing any communication within

paragraph (a),

30

“postal operator” has the meaning given by section 26,

“postal packet” has the meaning given by section 26,

“postal services” has the meaning given by section 26,

“regulatory condition” has the meaning given by section 27,

“universal postal service order” has the meaning given by section 29,

35

“universal service obligations” has the meaning given by section 35(8),

“universal service provider” means any postal operator for the time being

designated under section 34,

“user”, in relation to a postal service, includes—

(a)   

addressees, and

40

(b)   

potential users,

“USP access condition” has the meaning given by section 37, and

“USP accounting condition” has the meaning given by section 38.

(2)   

In this Part—

(a)   

references to the provision of a universal postal service are to be read in

45

accordance with sections 29 to 32, and

 
 

Postal Services Bill
Part 3 — Regulation of postal services

39

 

(b)   

references to the provision of a service within the scope of the universal

postal service are to be read in accordance with section 39.

(3)   

In the case of a universal service provider who—

(a)   

provides part of a universal postal service, or

(b)   

provides a universal postal service, or part of a universal postal service,

5

in a specified area of the United Kingdom,

   

references in this Part to the provision of a universal postal service are to the

provision of that part or to the provision of a universal postal service, or part

of a universal postal service, in that area.

(4)   

For the purposes of this Part—

10

(a)   

“contravention” includes a failure to comply (and related expressions

are to be read accordingly),

(b)   

where there is a contravention of an obligation that requires a person to

do anything within a particular period or before a particular time, the

contravention is to be taken to continue after the end of that period, or

15

after that time, until that thing is done,

(c)   

references to remedying the consequences of a contravention include

paying an amount to a person—

(i)   

by way of compensation for loss or damage suffered by the

person, or

20

(ii)   

in respect of annoyance, inconvenience or anxiety to which the

person has been put, and

(d)   

in determining whether a contravention is a repeated contravention for

any purposes, a notification of a contravention under any provision is

to be ignored if it has been withdrawn before the imposition of a

25

penalty in respect of the matters notified.

(5)   

Nothing in any provision of this Part that authorises the inclusion of any

particular kind of provision in any regulatory condition or direction is to be

read as restricting the generality of the provision that may be included in the

condition or direction.

30

(6)   

Any power under this Part to provide for the manner in which anything is to

be done includes power to provide for the form in which it is to be done.

(7)   

Any reference in this Part to OFCOM’s functions under an enactment includes

their power to do anything which appears to them to be incidental or

conducive to the carrying out of their functions under that enactment.

35

64      

Transitional provisions for Part 3

Schedule 9 makes transitional provision in connection with the coming into

force of this Part and provides for OFCOM to carry out certain functions before

the provisions of this Part come into force generally.

65      

Review of Part 3

40

(1)   

As soon as reasonably practicable after the end of the review period, the

Secretary of State must—

(a)   

carry out a review of the provisions of this Part, and

(b)   

set out the conclusions of the review in a report.

(2)   

The report must, in particular—

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Postal Services Bill
Part 4 — Special administration regime

40

 

(a)   

set out the objectives intended to be achieved by the regulatory system

established by those provisions,

(b)   

assess the extent to which those objectives have been achieved, and

(c)   

assess whether those objectives remain appropriate and, if so, the

extent to which they could be achieved with a system that imposed less

5

regulation.

(3)   

The review period is the period of 5 years beginning with the day on which the

provisions of this Part come generally into force.

(4)   

The Secretary of State must lay the report before Parliament.

Part 4

10

Special administration regime

Postal administration orders

66      

Postal administration orders

(1)   

In this Part “postal administration order” means an order which—

(a)   

is made by the court in relation to a company which is a universal

15

service provider, and

(b)   

directs that, while the order is in force, the company’s affairs, business

and property are to be managed by a person appointed by the court.

(2)   

The person appointed in relation to a company for the purposes of a postal

administration order is referred to in this Part as the postal administrator of the

20

company.

(3)   

The postal administrator of a company must—

(a)   

manage the company’s affairs, business and property, and

(b)   

exercise and perform all the powers and duties conferred or imposed

on the postal administrator of the company,

25

   

so as to achieve the objective set out in section 67.

(4)   

In relation to a postal administration order applying to a foreign company,

references in this section to the company’s affairs, business and property are

references to its UK affairs, business and property.

67      

Objective of a postal administration

30

(1)   

The objective of a postal administration is to secure—

(a)   

that a universal postal service is provided in accordance with the

standards set out in the universal postal service order, and

(b)   

that it becomes unnecessary, by one or both of the following means, for

the postal administration order to remain in force for that purpose.

35

(2)   

Those means are—

(a)   

the rescue as a going concern of the company subject to the order, and

(b)   

relevant transfers.

(3)   

A transfer is a “relevant” transfer if it is a transfer as a going concern—

(a)   

to another company, or

40

 
 

Postal Services Bill
Part 4 — Special administration regime

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(b)   

as respects different parts of the undertaking of the company subject to

the order, to two or more different companies,

   

of so much of that undertaking as it is appropriate to transfer for the purpose

of achieving the objective of the postal administration.

(4)   

The means by which relevant transfers may be effected include, in particular—

5

(a)   

a transfer of the undertaking of the company subject to the order, or of

a part of its undertaking, to a wholly-owned subsidiary of that

company, and

(b)   

a transfer to a company of securities of a wholly-owned subsidiary to

which there has been a transfer within paragraph (a).

10

   

In this subsection “wholly-owned subsidiary” has the meaning given by

section 1159 of the Companies Act 2006.

(5)   

The objective of a postal administration may be achieved by relevant transfers

to the extent only that—

(a)   

the rescue as a going concern of the company is not reasonably

15

practicable or is not reasonably practicable without the transfers,

(b)   

the rescue of the company as a going concern will not achieve the

objective of the postal administration or will not do so without the

transfers,

(c)   

the transfers would produce a result for the company’s creditors as a

20

whole that is better than the result that would be produced without

them, or

(d)   

the transfers would, without prejudicing the interests of the company’s

creditors as a whole, produce a result for the company’s members as a

whole that is better than the result that would be produced without

25

them.

68      

Applications for postal administration orders

(1)   

An application for a postal administration order in relation to a company may

be made only—

(a)   

by the Secretary of State, or

30

(b)   

with the consent of the Secretary of State, by OFCOM.

(2)   

The applicant for a postal administration order in relation to a company must

give notice of the application to—

(a)   

every person who has appointed an administrative receiver of the

company,

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(b)   

every person who is or may be entitled to appoint an administrative

receiver of the company,

(c)   

every person who is or may be entitled to make an appointment in

relation to the company under paragraph 14 of Schedule B1 to the 1986

Act (appointment of administrators by holders of floating charges), and

40

(d)   

such other persons as may be prescribed by postal administration rules.

(3)   

The notice must be given as soon as reasonably practicable after the making of

the application.

(4)   

In this section “administrative receiver” means—

(a)   

an administrative receiver within the meaning given by section 251 of

45

the 1986 Act for the purposes of Parts 1 to 7 of that Act, or

 
 

Postal Services Bill
Part 4 — Special administration regime

42

 

(b)   

a person whose functions in relation to a foreign company are

equivalent to those of an administrative receiver and relate only to its

UK affairs, business and property.

69      

Powers of court

(1)   

On hearing an application for a postal administration order, the court has the

5

following powers—

(a)   

it may make the order,

(b)   

it may dismiss the application,

(c)   

it may adjourn the hearing conditionally or unconditionally,

(d)   

it may make an interim order,

10

(e)   

it may treat the application as a winding-up petition and make any

order the court could make under section 125 of the 1986 Act (power of

court on hearing winding-up petition), and

(f)   

it may make any other order which it thinks appropriate.

(2)   

The court may make a postal administration order in relation to a company

15

only if it is satisfied—

(a)   

that the company is unable, or is likely to be unable, to pay its debts, or

(b)   

that, on a petition by the Secretary of State under section 124A of the

1986 Act, it would be just and equitable (disregarding the objective of

the postal administration) to wind up the company in the public

20

interest.

(3)   

The court may not make a postal administration order on the ground set out in

subsection (2)(b) unless the Secretary of State has certified to the court that the

case is one in which the Secretary of State considers (disregarding the objective

of the postal administration) that it would be appropriate to petition under

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section 124A of the 1986 Act.

(4)   

The court has no power to make a postal administration order in relation to a

company which—

(a)   

is in administration under Schedule B1 to the 1986 Act, or

(b)   

has gone into liquidation (within the meaning of section 247(2) of the

30

1986 Act).

(5)   

A postal administration order comes into force—

(a)   

at the time appointed by the court, or

(b)   

if no time is appointed by the court, when the order is made.

(6)   

An interim order under subsection (1)(d) may, in particular—

35

(a)   

restrict the exercise of a power of the company or of its directors, or

(b)   

make provision conferring a discretion on a person qualified to act as

an insolvency practitioner in relation to the company.

(7)   

In the case of a foreign company, subsection (6)(a) is to be read as a reference

to restricting the exercise of a power of the company or of its directors—

40

(a)   

within the United Kingdom, or

(b)   

in relation to the company’s UK affairs, business or property.

(8)   

For the purposes of this section a company is unable to pay its debts if—

(a)   

it is a company which is deemed to be unable to pay its debts under

section 123 of the 1986 Act, or

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Postal Services Bill
Part 4 — Special administration regime

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(b)   

it is an unregistered company which is deemed, as a result of any of

sections 222 to 224 of the 1986 Act, to be so unable for the purposes of

section 221 of the 1986 Act, or which would be so deemed if it were an

unregistered company for the purposes of those sections.

70      

Postal administrators

5

(1)   

The postal administrator of a company—

(a)   

is an officer of the court, and

(b)   

in exercising and performing powers and duties in relation to the

company, is the company’s agent.

(2)   

The management by the postal administrator of a company of any of its affairs,

10

business or property must be carried out for the purpose of achieving the

objective of the postal administration as quickly and as efficiently as is

reasonably practicable.

(3)   

The postal administrator of a company must exercise and perform powers and

duties in the way which, so far as it is consistent with the objective of the postal

15

administration to do so, best protects—

(a)   

the interests of the company’s creditors as a whole, and

(b)   

subject to those interests, the interests of the company’s members as a

whole.

(4)   

A person is not to be the postal administrator of a company unless qualified to

20

act as an insolvency practitioner in relation to the company.

(5)   

If the court appoints two or more persons as the postal administrator of a

company, the appointment must set out—

(a)   

which (if any) of the powers and duties of a postal administrator are to

be exercisable or performed only by the appointees acting jointly,

25

(b)   

the circumstances (if any) in which powers and duties of a postal

administrator are to be exercisable, or may be performed, by one of the

appointees, or by particular appointees, acting alone, and

(c)   

the circumstances (if any) in which things done in relation to one of the

appointees, or in relation to particular appointees, are to be treated as

30

done in relation to all of them.

71      

Conduct of administration, transfer schemes etc

(1)   

Schedule 10 contains provision applying the provisions of Schedule B1 to the

1986 Act, and certain other enactments, to postal administration orders.

(2)   

Schedule 11 contains provision for transfer schemes to achieve the objective of

35

a postal administration.

(3)   

The power to make rules under section 411 of the 1986 Act is to apply for the

purpose of giving effect to this Part as it applies for the purpose of giving effect

to Parts 1 to 7 of that Act (and, accordingly, as if references in that section to

those Parts included references to this Part).

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(4)   

Section 413(2) of the 1986 Act (duty to consult Insolvency Rules Committee

about rules) is not to apply to rules made under section 411 of the 1986 Act as

a result of this section.

 
 

 
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