Corporations Act 2001
CHAPTER 5
-
EXTERNAL ADMINISTRATION
PART 5.8A
-
EMPLOYEE ENTITLEMENTS
SECTION 596AA
OBJECTS AND COVERAGE OF THIS PART
Objects
596AA(1)
The objects of this Part are to:
(a) deter avoidance of the payment of the entitlements of employees; and
(b) protect the entitlements of a company ' s employees from agreements, arrangements and transactions that avoid or prevent the recovery of those entitlements, or significantly reduce the amount of those entitlements that can be recovered, in the winding up of the company.
Employee entitlements
596AA(2)
The entitlements of an employee of a company that are protected under this Part are:
(a) wages payable by the company for services rendered to the company by the employee; and
(b) superannuation contributions (that is, contributions by the company to a fund or scheme for the purposes of making provision for, or obtaining, superannuation benefits (including defined benefits) for the employee, or for dependants of the employee) payable by the company in respect of services rendered to the company by the employee; and
(c) amounts due in respect of injury compensation in relation to the employee; and
(d) amounts due under an industrial instrument in respect of the employee ' s leave of absence; and
(e) retrenchment payments for the employee (that is, amounts payable by the company to the employee, under an industrial instrument, in respect of the termination of the employee ' s employment by the company).
596AA(2A)
For the purposes of subsection (2), an entitlement of an employee need not be owed to the employee. It might, for example, be:
(a) an amount owed to the employee ' s dependants; or
(b) a superannuation contribution payable to a fund in respect of services rendered by the employee; or
(c) a right in relation to an entitlement that becomes a right of the Commonwealth under paragraph 31(1)(b) of the Fair Entitlements Guarantee Act 2012 ; or
(d) an entitlement in relation to which an entity other than the employee has a right of subrogation.
596AA(3)
The entitlements of an excluded employee (within the meaning of section 556) are protected under this Part only to the extent to which they have priority under paragraph 556(1)(e), (f), (g) or (h).
Employees
596AA(4)
For the purposes of this Part, a person is an employee of a company if the person is, or has been, an employee of the company (whether remunerated by salary, wages, commission or otherwise).
596AA(5)
If an entitlement of an employee of a company is owed to a person other than the employee, this Part applies to the entitlement as if a reference to the employee included a reference to the person to whom the entitlement is owed.
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.
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:
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:
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:
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.
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.
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:
596AB(4)
(Repealed by No 44 of 2019, s 3, Sch 1[10] (effective 6 April 2019).)
SECTION 596AC RELEVANT AGREEMENTS OR TRANSACTIONS THAT AVOID EMPLOYEE ENTITLEMENTS - CIVIL CONTRAVENTIONS
Entering into relevant agreement or transaction
596AC(1)
A person contravenes this subsection if:
(a) the person enters into a relevant agreement or a transaction (within the meaning of subsection 596AB(3) ); and
(b) the person knows, or a reasonable person in the position of the person would know, that the relevant agreement or the transaction is likely to:
596AC(2)
A person who is involved in a contravention of subsection (1) contravenes this subsection.
Causing company to enter into relevant agreement or transaction
596AC(3)
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 (within the meaning of subsection 596AB(3) ); and
(c) the person knows, or a reasonable person in the position of the person would know, that the relevant agreement or the transaction is likely to:
596AC(4)
A person who is involved in a contravention of subsection (3) contravenes this subsection.
Application of contravention provisions
596AC(5)
Subsections (1) and (2) apply even if the company is not a party to the relevant agreement or the transaction.
596AC(6)
Subsections (1), (2), (3) and (4) 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)(b) or (3)(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.
596AC(7)
However, subsections (1), (2), (3) and (4) do not apply if:
(a) the relevant agreement or the transaction is, or is entered into under:
(b) 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.
596AC(8)
A person who wishes to rely on subsection (7) in a proceeding for, or relating to, a contravention of subsection (1), (2), (3) or (4) bears an evidential burden in relation to that matter.
Proceedings may be begun only after liquidator appointed
596AC(9)
Proceedings under section 1317E for a declaration of a contravention of this section may only be begun after a liquidator has been appointed to the company.
Linked debts
596AC(10)
If a person contravenes this section by incurring a debt (within the meaning of section 588G ), the incurring of the debt and the contravention are linked for the purposes of this Act.
Linked dispositions
596AC(10A)
If there is a contravention of this section involving a disposition of property of a company that is voidable under subsection 588FE(6B) , the disposition and the contravention are linked for the purposes of this Act.
Definitions
596AC(11)
In this section:
SECTION 596ACA
PERSON WHO CONTRAVENES SECTION 596AC LIABLE TO COMPENSATE FOR LOSS
596ACA(1)
A person is liable to pay compensation under subsection (3) or (4) if:
(a) the person has contravened subsection 596AC(1) , (2), (3) or (4) in relation to the entitlements of employees of a company; and
(b) employees of the company have suffered loss or damage because of the relevant agreement or the transaction referred to in subsection 596AC(1) or (3), or because of action taken to give effect to the relevant agreement or the transaction; and
(c) a liquidator has been appointed to the company.
596ACA(2)
The person may be liable whether or not:
(a) a Court has made a declaration of contravention or a pecuniary penalty order under Part 9.4B that applies to the person in relation to the contravention; or
(b) the person has been convicted of an offence based on section 596AB in relation to the matters giving rise to the contravention; or
(c) the company has been wound up.
596ACA(3)
The company ' s liquidator may recover from the person, as a debt due to the company, an amount equal to the loss or damage referred to in paragraph (1)(b).
596ACA(4)
An employee who suffers loss or damage referred to in paragraph (1)(b) may, as provided in section 596AF (but not otherwise), recover from the person, as a debt due to the employee, an amount equal to the loss or damage.
596ACA(5)
An amount recovered under subsection (4) is to be taken into account in working out the amount (if any) for which the employee may prove in the liquidation of the company.
596ACA(6)
Proceedings under this section may only be begun within 6 years after the company begins to be wound up.
SECTION 596AD
596AD
AVOIDING DOUBLE RECOVERY
An amount recovered in proceedings under section 596ACA in relation to a contravention of subsection 596AC(1) , (2) , (3) or (4) is to be taken into account in working out the amount (if any) recoverable in:
(a) any other proceedings under that section in relation to the contravention; and
(b) proceedings under section 588M in relation to the incurring of a debt, or the making of a disposition, that is linked to the contravention; and
(c) proceedings under section 588ZA in relation to the entitlements to which the contravention relates; and
(d) proceedings under section 1317H in relation to the contravention.
SECTION 596AE
596AE
EFFECT OF SECTION 596ACA
Section 596ACA :
(a) has effect in addition to, and not in derogation of, any rule of law about the duty or liability of a person because of the person's office or employment in relation to a company; and
(b) does not prevent proceedings from being instituted in respect of a breach of such a duty or in respect of such a liability.
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.
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;
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:
(c) the Court is satisfied that it is appropriate to give leave, having regard to the following matters:
SECTION 596AG
EVENTS PREVENTING PROCEEDINGS
596AG(1)
Proceedings cannot be begun as described in subsection 596AF(1) in relation to a company and a contravention of subsection 596AC(1) , (2), (3) or (4) if the company ' s liquidator has begun proceedings under section 596ACA in relation to the contravention.
596AG(2)
An employee of a company that is being wound up, or an organisation mentioned in paragraph 596AF(1)(ca) , cannot begin proceedings under section 596ACA in relation to a contravention of subsection 596AC(1) , (2), (3) or (4) if a person mentioned in paragraph 596AF(1)(a) , (b) or (c), or an organisation mentioned in paragraph 596AF(1)(ca) , has begun proceedings under section 596ACA in relation to the contravention.
SECTION 596AH
JOINING PARTIES TO PROCEEDINGS
596AH(1)
If a company ' s liquidator has begun proceedings under section 596ACA , any of the following may apply to the Court for leave to be joined as a party to the proceedings:
(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) 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.
596AH(2)
If a person mentioned in paragraph (1)(a), (b) or (c), or an organisation mentioned in paragraph (1)(ca), has begun proceedings under section 596ACA , any of the following may apply to the Court for leave to be joined as a party to the proceedings:
(a) another person mentioned in paragraph (1)(a), (b) or (c);
(aa) another organisation mentioned in paragraph (1)(ca);
(b) an employee of the company to which the proceedings relate;
(c) the company ' s liquidator.
SECTION 596AI
EVENTS PREVENTING EMPLOYEE FROM SUING
(Repealed by No 44 of 2019, s 3 and Sch 1[16] (effective 6 April 2019).)
Objects
596AA(1)
The objects of this Part are to:
(a) deter avoidance of the payment of the entitlements of employees; and
(b) protect the entitlements of a company ' s employees from agreements, arrangements and transactions that avoid or prevent the recovery of those entitlements, or significantly reduce the amount of those entitlements that can be recovered, in the winding up of the company.
View history note
Hide history noteEmployee entitlements
596AA(2)
The entitlements of an employee of a company that are protected under this Part are:
(a) wages payable by the company for services rendered to the company by the employee; and
(b) superannuation contributions (that is, contributions by the company to a fund or scheme for the purposes of making provision for, or obtaining, superannuation benefits (including defined benefits) for the employee, or for dependants of the employee) payable by the company in respect of services rendered to the company by the employee; and
(c) amounts due in respect of injury compensation in relation to the employee; and
(d) amounts due under an industrial instrument in respect of the employee ' s leave of absence; and
(e) retrenchment payments for the employee (that is, amounts payable by the company to the employee, under an industrial instrument, in respect of the termination of the employee ' s employment by the company).
596AA(2A)
For the purposes of subsection (2), an entitlement of an employee need not be owed to the employee. It might, for example, be:
(a) an amount owed to the employee ' s dependants; or
(b) a superannuation contribution payable to a fund in respect of services rendered by the employee; or
(c) a right in relation to an entitlement that becomes a right of the Commonwealth under paragraph 31(1)(b) of the Fair Entitlements Guarantee Act 2012 ; or
(d) an entitlement in relation to which an entity other than the employee has a right of subrogation.
596AA(3)
The entitlements of an excluded employee (within the meaning of section 556) are protected under this Part only to the extent to which they have priority under paragraph 556(1)(e), (f), (g) or (h).
Employees
596AA(4)
For the purposes of this Part, a person is an employee of a company if the person is, or has been, an employee of the company (whether remunerated by salary, wages, commission or otherwise).
596AA(5)
If an entitlement of an employee of a company is owed to a person other than the employee, this Part applies to the entitlement as if a reference to the employee included a reference to the person to whom the entitlement is owed.
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 theamount 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).)
SECTION 596AC RELEVANT AGREEMENTS OR TRANSACTIONS THAT AVOID EMPLOYEE ENTITLEMENTS - CIVIL CONTRAVENTIONS
Entering into relevant agreement or transaction
596AC(1)
A person contravenes this subsection if:
(a) the person enters into a relevant agreement or a transaction (within the meaning of subsection 596AB(3) ); and
(b) the person knows, or a reasonable person in the position of the person would know, that the relevant agreement or the transaction is likely to:
(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: This subsection is a civil penalty provision (see section 1317E ).
596AC(2)
A person who is involved in a contravention of subsection (1) contravenes this subsection.
Note 1: Section 79 defines involved .
Note 2: This subsection is a civil penalty provision (see section 1317E ).
Causing company to enter into relevant agreement or transaction
596AC(3)
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 (within the meaning of subsection 596AB(3) ); and
(c) the person knows, or a reasonable person in the position of the person would know, that the relevant agreement or the transaction is likely to:
(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: This subsection is a civil penalty provision (see section 1317E ).
596AC(4)
A person who is involved in a contravention of subsection (3) contravenes this subsection.
Note 1: Section 79 defines involved .
Note 2: This subsection is a civil penalty provision (see section 1317E ).
Application of contravention provisions
596AC(5)
Subsections (1) and (2) apply even if the company is not a party to the relevant agreement or the transaction.
596AC(6)
Subsections (1), (2), (3) and (4) 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)(b) or (3)(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.
596AC(7)
However, subsections (1), (2), (3) and (4) do not apply if:
(a) the relevant agreement or the transaction is, or is entered into under:
(i) 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
(ii) a deed of company arrangement executed by the company; or
(iii) a restructuring plan made by the company; or
(b) 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.
596AC(8)
A person who wishes to rely on subsection (7) in a proceeding for, or relating to, a contravention of subsection (1), (2), (3) or (4) bears an evidential burden in relation to that matter.
Proceedings may be begun only after liquidator appointed
596AC(9)
Proceedings under section 1317E for a declaration of a contravention of this section may only be begun after a liquidator has been appointed to the company.
Linked debts
596AC(10)
If a person contravenes this section by incurring a debt (within the meaning of section 588G ), the incurring of the debt and the contravention are linked for the purposes of this Act.
Linked dispositions
596AC(10A)
If there is a contravention of this section involving a disposition of property of a company that is voidable under subsection 588FE(6B) , the disposition and the contravention are linked for the purposes of this Act.
Definitions
596AC(11)
In this section:
evidential burden
, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
A person is liable to pay compensation under subsection (3) or (4) if:
(a) the person has contravened subsection 596AC(1) , (2), (3) or (4) in relation to the entitlements of employees of a company; and
(b) employees of the company have suffered loss or damage because of the relevant agreement or the transaction referred to in subsection 596AC(1) or (3), or because of action taken to give effect to the relevant agreement or the transaction; and
(c) a liquidator has been appointed to the company.
596ACA(2)
The person may be liable whether or not:
(a) a Court has made a declaration of contravention or a pecuniary penalty order under Part 9.4B that applies to the person in relation to the contravention; or
(b) the person has been convicted of an offence based on section 596AB in relation to the matters giving rise to the contravention; or
(c) the company has been wound up.
596ACA(3)
The company ' s liquidator may recover from the person, as a debt due to the company, an amount equal to the loss or damage referred to in paragraph (1)(b).
596ACA(4)
An employee who suffers loss or damage referred to in paragraph (1)(b) may, as provided in section 596AF (but not otherwise), recover from the person, as a debt due to the employee, an amount equal to the loss or damage.
596ACA(5)
An amount recovered under subsection (4) is to be taken into account in working out the amount (if any) for which the employee may prove in the liquidation of the company.
596ACA(6)
Proceedings under this section may only be begun within 6 years after the company begins to be wound up.
An amount recovered in proceedings under section 596ACA in relation to a contravention of subsection 596AC(1) , (2) , (3) or (4) is to be taken into account in working out the amount (if any) recoverable in:
(a) any other proceedings under that section in relation to the contravention; and
(b) proceedings under section 588M in relation to the incurring of a debt, or the making of a disposition, that is linked to the contravention; and
(c) proceedings under section 588ZA in relation to the entitlements to which the contravention relates; and
(d) proceedings under section 1317H in relation to the contravention.
Section 596ACA :
(a) has effect in addition to, and not in derogation of, any rule of law about the duty or liability of a person because of the person's office or employment in relation to a company; and
(b) does not prevent proceedings from being instituted in respect of a breach of such a duty or in respect of such a liability.
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.
Proceedings cannot be begun as described in subsection 596AF(1) in relation to a company and a contravention of subsection 596AC(1) , (2), (3) or (4) if the company ' s liquidator has begun proceedings under section 596ACA in relation to the contravention.
596AG(2)
An employee of a company that is being wound up, or an organisation mentioned in paragraph 596AF(1)(ca) , cannot begin proceedings under section 596ACA in relation to a contravention of subsection 596AC(1) , (2), (3) or (4) if a person mentioned in paragraph 596AF(1)(a) , (b) or (c), or an organisation mentioned in paragraph 596AF(1)(ca) , has begun proceedings under section 596ACA in relation to the contravention.
If a company ' s liquidator has begun proceedings under section 596ACA , any of the following may apply to the Court for leave to be joined as a party to the proceedings:
(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) 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.
596AH(2)
If a person mentioned in paragraph (1)(a), (b) or (c), or an organisation mentioned in paragraph (1)(ca), has begun proceedings under section 596ACA , any of the following may apply to the Court for leave to be joined as a party to the proceedings:
(a) another person mentioned in paragraph (1)(a), (b) or (c);
(aa) another organisation mentioned in paragraph (1)(ca);
(b) an employee of the company to which the proceedings relate;
(c) the company ' s liquidator.
(Repealed by No 44 of 2019, s 3 and Sch 1[16] (effective 6 April 2019).)