Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.8A - EMPLOYEE ENTITLEMENTS  

SECTION 596AF   PROCEEDINGS FOR COMPENSATION  

596AF(1)    
Subject to section 596AG and to subsection (2) of this section, any of the following may begin proceedings under section 596ACA for compensation to be paid under subsection 596ACA(3) or (4) in relation to a contravention of subsection 596AC(1) , (2), (3) or (4) that relates to a company:

(a) the Commissioner of Taxation;

(b) the Fair Work Ombudsman;

(c) the Secretary of the Department administered by the Minister who administers the Fair Entitlements Guarantee Act 2012 ;

(ca) subject to subsection (1A) - an organisation registered under the Fair Work (Registered Organisations) Act 2009 that is entitled to represent the industrial interests of one or more employees of the company;

(d) an employee of the company.

This subsection does not prevent the company ' s liquidator beginning proceedings under subsection 596ACA(3) .

596AF(1A)    
An organisation mentioned in paragraph (1)(ca) may begin proceedings under section 596ACA for compensation to be paid under subsection 596ACA(4) in relation to one or more employees of the company:

(a) who are members of the organisation; or

(b) whose industrial interests the organisation is entitled to represent, and who consent to the proceedings being begun;

and may not otherwise begin proceedings under section 596ACA .

If liquidator appointed, proceedings require consent or leave

596AF(2)    
If a liquidator is appointed to the company, proceedings may only be begun as described in subsection (1):

(a) with the written consent of the liquidator; or

(b) with the leave of the Court.

596AF(3)    
The Court may give leave under paragraph (2)(b) only if:

(a) the person seeking to bring the proceedings (the applicant ) has given a written notice to the liquidator asking the liquidator to give consent under paragraph (2)(a); and

(b) either:

(i) the liquidator has given written notice to the applicant refusing to give consent under paragraph (2)(a); or

(ii) more than 30 days have passed since the notice under paragraph (a) of this subsection was given; and

(c) the Court is satisfied that it is appropriate to give leave, having regard to the following matters:

(i) whether it is likely that the liquidator will begin proceedings under section 596ACA in relation to the compensation;

(ii) whether the liquidator has applied under section 588FF in relation to a transaction that constituted, or was part of, the contravention;

(iii) in the case of a contravention of subsection 596AC(1) , (2) , (3) or (4) linked to a disposition of the company ' s property - whether the liquidator has requested ASIC to make an order under subsection 588FGAA(3) relating to the disposition and whether ASIC has made such an order;

(iv) whether the liquidator has intervened in an application for a civil penalty order against a person for a contravention of section 588G or subsection 588GAB(2) or 588GAC(2) relating to the incurring of a debt, or the disposition of the company ' s property, that is linked to the contravention of subsection 596AC(1) , (2) , (3) or (4) ;

(v) whether the liquidator has begun proceedings under section 588M relating to the incurring of a debt, or the disposition of the company ' s property, that is linked to the contravention of subsection 596AC(1) , (2) , (3) or (4) ;

(vi) any other matter that the Court considers relevant.