Corporations Act 2001

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.8A - EMPLOYEE ENTITLEMENTS  

SECTION 596AB   RELEVANT AGREEMENTS OR TRANSACTIONS THAT AVOID EMPLOYEE ENTITLEMENTS - OFFENCES  
Offences of entering into relevant agreement or transaction

596AB(1)    

A person contravenes this subsection if the person enters into a relevant agreement or a transaction with the intention of, or with intentions that include the intention of:

(a) avoiding or preventing the recovery of the entitlements of employees of a company; or

(b) significantly reducing the amount of the entitlements of employees of a company that can be recovered.

Note: A contravention of this subsection is an offence (see subsection 1311(1) ).

596AB(1A)    

A person contravenes this subsection if:

(a) the person enters into a relevant agreement or a transaction; and

(b) the person is reckless as to whether the relevant agreement or the transaction will:

(i) avoid or prevent the recovery of the entitlements of employees of a company; or

(ii) significantly reduce the amount of the entitlements of employees of a company that can be recovered.

Note: A contravention of this subsection is an offence (see subsection 1311(1) ).

Offences of causing company to enter into relevant agreement or transaction

596AB(1B)    

A person contravenes this subsection if:

(a) the person is an officer of a company; and

(b) the person causes the company to enter into a relevant agreement or a transaction; and

(c) the person does so with the intention of, or with intentions that include the intention of:

(i) avoiding or preventing the recovery of the entitlements of employees of the company; or

(ii) significantly reducing the amount of the entitlements of employees of the company that can be recovered.

Note: A contravention of this subsection is an offence (see subsection 1311(1) ).

596AB(1C)    

A person contravenes this subsection if:

(a) the person is an officer of a company; and

(b) the person causes the company to enter into a relevant agreement or a transaction; and

(c) the person is reckless as to whether the relevant agreement or the transaction will:

(i) avoid or prevent the recovery of the entitlements of employees of the company; or

(ii) significantly reduce the amount of the entitlements of employees of the company that can be recovered.

Note: A contravention of this subsection is an offence (see subsection 1311(1) ).

Application of offence provisions

596AB(2)    

Subsections (1) and (1A) apply even if the company is not a party to the relevant agreement or the transaction.

596AB(2A)    

Subsections (1), (1A), (1B) and (1C) apply even if:

(a) the relevant agreement or the transaction is approved by a court; or

(b) the relevant agreement or the transaction has not had the effect or effects mentioned in paragraph (1)(a) or (b), (1A)(b), (1B)(c) or (1C)(c), as the case may be; or

(c) despite the relevant agreement or the transaction, the entitlements of the employees of the company are recovered.

596AB(2B)    

However, subsections (1), (1A), (1B) and (1C) do not apply if the relevant agreement or the transaction is, or is entered into under:

(a) a compromise or arrangement between the company and its creditors or a class of its creditors, or its members or a class of its members, that is approved by a Court under section 411 ; or

(b) a deed of company arrangement executed by the company; or

(c) a restructuring plan made by the company.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code ).

596AB(2C)    

Subsections (1A) and (1C) do not apply if a liquidator or provisional liquidator of the company causes the relevant agreement or the transaction to be entered into in the course of winding up the company.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code ).

Definitions

596AB(3)    
A reference in this section to a relevant agreement or a transaction includes a reference to:

(a) a relevant agreement and a transaction; and

(b) a series or combination of:

(i) relevant agreements or transactions; or

(ii) relevant agreements; or

(iii) transactions.

Note: A relevant agreement is an agreement, arrangement or understanding (see the definition of relevant agreement in section 9 ).

596AB(4)    
(Repealed by No 44 of 2019, s 3, Sch 1[10] (effective 6 April 2019).)