Antecedentes legales de la compra de renuncias

Ministerial Council for Corporations

Amendments to the Law to address the employment situation were first canvassed in July 1999 by the Federal Treasurer and the Ministerial Council for Corporations (MINCO), which considered the introduction of criminal or civil liability for company directors for failure to recover employee debt in insolvency. The Treasurer and MINCO recommended the introduction of measures to:

• strengthen the existing prohibition against insolvent trading, so that directors would be in breach of the Law if they entered into an uncommercial transaction which led to the company’s insolvency; and

• introduce a new offence to prevent directors from entering into arrangements or transactions that avoided payment of employee entitlements.

The proposal would have created “a civil or criminal penalty, specifically designed to prevent the misuse of company structures by directors to avoid payment of employee en- titlements.”9 _{According to one commentator, in order for a director to avoid a penalty} under this proposal, the test for wages could be satisfied where the company had success- fully “quarantined” the money from claims to other creditors, in the event of insolvency.10 Similarly, the test for redundancy payments could be met where a director had made rea- sonable quantification of, and provision for, redundancy payments in the event of insolvency.11

9. See the Hon Jeff Shaw QC, MLC “The Protection of Employee Entitlements” (Paper presented at the Australian Centre for Industrial Relations Research and Training Conference, “Re-thinking Collective and Individual Rights at Work: A Reflection and Outlook”, Sydney, 16 July 1999) 3.

10. Ibid at 11.

11. Redundancy payments are a special case, as an employee is not entitled to a redundancy payment unless termination of their employment occurs in specific circumstances: ibid at 12.

133

The Recovery of Employee Entitlements in Insolvency

The Ministerial Discussion Paper

In August 1999, the Federal Minister for Employment, Workplace Relations and Small Business, the Hon Peter Reith MP, released a Ministerial Discussion Paper addressing the loss of employee entitlements upon employer insolvency.12 _{The Discussion Paper pro-} posed either the introduction of a capped safety-net scheme to be jointly funded by the state and federal governments through revenue raised from payroll tax, or the introduction of a compulsory insurance scheme to guarantee employees a proportion of their lost enti- tlements. 13 _{On 8 February 2000, Mr Reith announced that the scheme had been approved} by the government.14 _{The scheme is currently operating as an interim measure (with $55} million in funding) and is being administered by the Department of Employment, Workplace Relations and Small Business.15

The Discussion Paper also referred to the proposal by MINCO to amend the Law, and noted:

The Coalition Government believes that these changes together will provide a strong incentive for directors to behave responsibly without impacting on genuine entrepreneurial activity. They will impose a much stronger legislative framework to protect employees in a manner which the great majority of employers, who are committed to meeting their obligations, will accept as necessary.16

Parliamentary Joint Statutory Committee on Corporations and Securities

The Corporations Law Amendment (Employee Entitlements) Bill 2000 (Cth) (“the Bill”) was introduced into the House of Representatives on 17 February 2000, and was read for a second time and passed on 15 March 2000. The Bill sought to introduce the two proposals endorsed by MINCO and the Federal Government.

On 8 March 2000, the Senate referred the Bill to the Parliamentary Joint Statutory Committee on Corporations and Securities (“the Committee”) to report on 6 April 2000. The Committee was established under s 241 of the Australian Securities and Investments Commission Act 1989 (Cth). Its statutory duties include inquiring into the operation of the Corporations Law, or of any other law that appears to affect significantly the operation of the Corporations Law. The Committee invited written submissions on the proposals in the Bill and conducted a public hearing on 5 April 2000.

On 10 April 2000, the Committee published its Report on the Bill (“the Report”). The Report recommended that the Bill should be passed. However, on 10 May 2000, the

12. The Hon Peter Reith MP, “The Protection of Employee Entitlements in the Event of Employer Insolvency”, Ministerial Discussion Paper (August 1999).

13. Ibid at [34].

14. See The Hon Peter Reith MP, “National Scheme to Protect Employee Entitlements”, Press Release (8 February 2000).

15. It is beyond the scope of this article to discuss the operation of the scheme. See discussion by C Hammond, “Insolvent Companies and Employees: The Government’s Year 2000 Solutions” (2000) 8 Insolvency Law

Journal 86, 88–90.

non-Government parties in the Senate sent the Bill back to the House in an amended form. The amendment sought to introduce court-sanctioned contribution orders against related companies of the insolvent employer, as an additional reform to address the loss of em- ployee entitlements.17 _{This would involve giving a court the discretion to make contribution} orders in certain circumstances, thereby transferring the obligations of insolvent compa- nies to pay employee entitlements to related companies that are solvent. On 7 June 2000, the House of Representatives rejected the proposed contribution order amendments and sent the Bill back to the Senate. On 26 June 2000, the Labor Party did not insist on the amendment in the Senate and accordingly, the Bill was passed in its original form. The Bill commenced upon the granting of assent by the Governor-General on 30 June 2000.