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

Schedule 1   Amendments

Part 1   Employee entitlements

Corporations Act 2001

8   Subsections 596AB(1) and (2)

Repeal the subsections, substitute:

Offences of entering into relevant agreement or transaction

(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)).

(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

(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)).

(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

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

(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.

(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.

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

(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