Corporations Amendment (Strengthening Protections for Employee Entitlements) Act 2019 (44 of 2019)

Schedule 1   Amendments

Part 3   Disqualification from managing corporations

Division 1   Main amendments

Corporations Act 2001

28   Before section 206G

Insert:

206GAA ASIC's power of disqualification - unrecovered payments under employee entitlements scheme

(1) ASIC may disqualify a person from managing corporations for up to 5 years if:

(a) subsection (2) applies to the person in relation to 2 or more corporations; and

(b) ASIC has given the person:

(i) a notice in the prescribed form requiring them to demonstrate why they should not be disqualified; and

(ii) an opportunity to be heard on the question; and

(c) ASIC is satisfied that the disqualification is justified.

(2) This subsection applies to the person in relation to a corporation if:

(a) within 7 years immediately before ASIC gives the notice under subparagraph (1)(b)(i):

(i) the person has been an officer of the corporation; and

(ii) while the person was an officer, or within 12 months after the person ceased to be an officer, the corporation began to be wound up; and

(iii) money was advanced for the purposes of paying the entitlements of employees of the corporation under the Fair Entitlements Guarantee Act 2012; and

(b) the Commonwealth has received a minimal return, or no return, on the advance (whether or not the corporation is still being wound up, or has been wound up); and

(c) ASIC has reason to believe that the Commonwealth is unlikely to receive more than a minimal return on the advance; and

(d) ASIC has reason to believe that either of the following occurred during the 7-year period mentioned in paragraph (a):

(i) the corporation contravened this Act or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 while the person was an officer of the corporation, and the person failed to take reasonable steps to prevent the contravention;

(ii) the person contravened this Act or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 while the person was an officer of the corporation.

(3) For the purposes of paragraphs (2)(b) and (c), the Commonwealth has received a minimal return on an advance under the Fair Entitlements Guarantee Act 2012 if the amount of the advance recovered by the Commonwealth is 10 cents in the dollar or less.

Note: For recovery of advances paid under the Fair Entitlements Guarantee Act 2012, see Part 5 of that Act.

(4) In determining whether the disqualification is justified, ASIC:

(a) must have regard to whether any of the corporations mentioned in paragraph (1)(a) were related to one another; and

(b) may have regard to:

(i) the person's conduct in relation to the management, business or property of any corporation; and

(ii) whether the disqualification would be in the public interest; and

(iii) any other matters that ASIC considers appropriate.

(5) To avoid doubt, the references in paragraph (1)(a) and subsections (2) and (4) to a corporation include references to an Aboriginal and Torres Strait Islander corporation.

Notice of disqualification

(6) If ASIC disqualifies a person from managing corporations under this section, ASIC must serve a notice on the person advising them of the disqualification. The notice must be in the prescribed form.

Start of disqualification

(7) The disqualification takes effect from the time when a notice referred to in subsection (6) is served on the person.

206GAB ASIC power to grant leave

ASIC may give a person who it has disqualified from managing corporations under this Part written permission to manage a particular corporation or corporations. The permission may be expressed to be subject to conditions and exceptions determined by ASIC.