Fair Entitlements Guarantee (Extended operation of the Act in relation to Ovato Group of Companies in Administration) Declaration 01/2022

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Legislation au F2022L01246 In force Legislative Instrument

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FAIR ENTITLEMENTS GUARANTEE (EXTENDED OPERATION OF THE ACT IN RELATION TO OVATO GROUP OF COMPANIES IN ADMINISTRATION) DECLARATION 01/2022

 

EXPLANATORY STATEMENT

 

Issued by authority of the Minister for Employment and Workplace Relations

under section 49 of the Fair Entitlements Guarantee Act 2012

 

Purpose and operation of the Instrument

 

The purpose of this instrument is to declare that the Fair Entitlements Guarantee Act 2012 (the Act) applies to persons who were employed, but are no longer employed by, Ovato Limited (Administrators Appointed), Ovato Print Cairns Pty Ltd (Administrators Appointed) and Ovato Packaging Pty Ltd (Administrators Appointed) (together called ‘Ovato Group of Companies’) which are entities under administration under Part 5.3A of the Corporations Act 2001 (the Corporations Act). Subject to a declaration made under s 49 of the Act, the Act does not otherwise apply to persons whose former employer is in administration.

Legislative background

The Act commenced on 5 December 2012 and creates a scheme to provide financial assistance for workers who have not been fully paid for work done for insolvents or bankrupts.

Section 10 of the Act sets out the conditions for an individual’s eligibility for an advance under the Act. One of the conditions is that an ‘insolvency event’ has happened to the person’s employer. An ‘insolvency event’, as defined in section 5 of the Act, happens when a liquidator of the employer is appointed (provisionally or otherwise) but does not include the employer being under administration under Part 5.3A of the Corporations Act.

Section 49 of the Act allows the Minister to declare that the Act applies to persons who were employed, but are no longer employed, by a specified person that is in administration under Part 5.3A of the Corporations Act if satisfied that:

  • The employer’s creditors are expected to resolve at a meeting convened under section 439A of the Corporations Act that the employer be wound up; and
  • If the declaration is made, it will be practicable to administer the Act as it will apply because of the declaration in relation to the specified employer.

Effect of the declaration

The effect of the declaration is that the Act applies to former employees of Ovato Group of Companies as if the relevant administrator were a liquidator appointed when the administrator was appointed, and the reference to an ‘insolvency event’ in paragraph 14(2)(a) of the Act is a reference to this declaration being made.

This will allow any former employees of Ovato Group of Companies to make a claim under the Act and receive an advance if they are eligible.

 

CONSULTATION

 

To be satisfied of the factors listed in subsection 49(2) of the Act, consultation was undertaken with the insolvency practitioner responsible for the administration of Ovato Group of Companies.  

The instrument is a legislative instrument subject to the Legislative Instruments Act 2003.

 

REGULATION IMPACT STATEMENT

 

The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required (reference 03279).

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Fair Entitlements Guarantee (Extended operation of the Act in relation to Ovato Group of Companies in Administration) Declaration 01/2022

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The purpose of this instrument is to declare that the Fair Entitlements Guarantee Act 2012 (the Act) applies to persons who were employed, but are no longer employed by, Ovato Limited (Administrators Appointed), Ovato Print Cairns Pty Ltd (Administrators Appointed) and Ovato Packaging Pty Ltd (Administrators Appointed) (together called ‘Ovato Group of Companies’) which are entities under administration under Part 5.3A of the Corporations Act 2001 (the Corporations Act). Subject to a declaration made under s 49 of the Act, the Act does not otherwise apply to persons whose former employer is in administration.

Legislative background

The Act commenced on 5 December 2012 and creates a scheme to provide financial assistance for workers who have not been fully paid for work done for insolvents or bankrupts.

Section 10 of the Act sets out the conditions for an individual’s eligibility for an advance under the Act. One of the conditions is that an ‘insolvency event’ has happened to the person’s employer. An ‘insolvency event’, as defined in section 5 of the Act, happens when a liquidator of the employer is appointed (provisionally or otherwise) but does not include the employer being under administration under Part 5.3A of the Corporations Act.

Section 49 of the Act allows the Minister to declare that the Act applies to persons who were employed, but are no longer employed, by a specified person that is in administration under Part 5.3A of the Corporations Act if satisfied that:

  • The employer’s creditors are expected to resolve at a meeting convened under section 439A of the Corporations Act that the employer be wound up; and
  • If the declaration is made, it will be practicable to administer the Act as it will apply because of the declaration in relation to the specified employer.

Effect of the declaration

The effect of the declaration is that the Act applies to former employees of Ovato Group of Companies as if the relevant administrator were a liquidator appointed when the administrator was appointed, and the reference to an ‘insolvency event’ in paragraph 14(2)(a) of the Act is a reference to this declaration being made.

This will allow any former employees of Ovato Group of Companies to make a claim under the Act and receive an advance if they are eligible.

Human rights implications

Article 9 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR) provides that, ‘the State Parties to the present Covenant recognise the right of everyone to social security, including social insurance.’ The Committee on Economic, Social and Cultural Rights has stated that the right to social security encompasses the right to access benefits, whether in cash or in kind, without discrimination in order to secure protection from lack of work-related income caused by unemployment.[1]

 

The Fair Entitlements Guarantee Act 2012 establishes an assistance scheme that is intended to operate as a safety net for persons whose employment has ended due to the insolvency or bankruptcy of their employer. This safety net could be characterised as ‘social insurance’ because it ensures that employees’ unpaid entitlements are met when their employer becomes insolvent. It thus seeks to protect individuals from lack of work-related income due to unemployment.

 

This declaration expands the operation of the Act to an employer in administration under the Corporations Act 2001. The effect is advances of unpaid employment entitlements can be made to eligible former employees. This supports the right to access benefits in order to secure protection from lack of work-related income caused by unemployment.

 

Conclusion 

 

The Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

The Hon Tony Burke MP

Minister for Employment and Workplace Relations

 

 

 

 

 

 

Attachment A

NOTES ON SECTIONS

Section 1 – Name

Section 1 provides that the title of the instrument is the Fair Entitlements Guarantee (Extended operation of the Act in relation to Ovato Group of Companies in Administration) Declaration 01/2022.

Section 2 – Commencement

Section 2 provides that the instrument commences on the day after it is registered on the Federal Register of Legislation.

Section 3 – Declaration

Section 3 provides that, for the purposes of section 49 of the Fair Entitlements Guarantee Act 2012, that Act applies in relation to persons who were employed, but are no longer employed, by the entities listed in the instrument.

 

 

[1] Committee on Economic, Social and Cultural Rights, General Comment 19, The Right to Social Security, U.N. Doc. E/C.12/GC/19 (2008)

Overview

The Fair Entitlements Guarantee (Extended operation of the Act in relation to Ovato Group of Companies in Administration) Declaration 01/2022 was enacted to address the issue of unpaid employment entitlements for former employees of the Ovato Group of Companies, which were in administration under the Corporations Act 2001. The Fair Entitlements Guarantee Act 2012 provides financial assistance for workers who have not been fully paid for work done for insolvents or bankrupts, but its application does not extend to employers in administration unless a specific declaration is made under section 49 of the Act. This instrument extends the operation of the Fair Entitlements Guarantee Act 2012 to the Ovato Group of Companies, ensuring that former employees can make a claim and receive an advance if they are eligible, thereby providing a safety net for employees affected by the insolvency of their employer. The instrument was issued by authority of the Minister for Employment and Workplace Relations and aims to support the right to access benefits in order to secure protection from lack of work-related income caused by unemployment.

Scope and Application

The Fair Entitlements Guarantee (Extended operation of the Act in relation to Ovato Group of Companies in Administration) Declaration 01/2022 extends the application of the Fair Entitlements Guarantee Act 2012 to former employees of Ovato Group of Companies, which comprises Ovato Limited, Ovato Print Cairns Pty Ltd, and Ovato Packaging Pty Ltd, entities currently under administration under the Corporations Act 2001. Ordinarily, the Fair Entitlements Guarantee Act 2012 does not apply to employees whose former employer is in administration, but the Act can be extended to such cases if certain conditions are met. This declaration is made under section 49 of the Fair Entitlements Guarantee Act 2012 and applies to these specific entities only. The Act’s extension is contingent on the Minister for Employment and Workplace Relations being satisfied that the creditors of the employer are likely to resolve to wind up the employer and that it is practicable to administer the Act in this context. The effect of this declaration is that former employees of the Ovato Group of Companies can now make claims under the Act and receive advances for unpaid entitlements, similar to how they would if their employer had been liquidated.

Key Provisions

The Fair Entitlements Guarantee (Extended operation of the Act in relation to Ovato Group of Companies in Administration) Declaration 01/2022 extends the application of the Fair Entitlements Guarantee Act 2012 (the Act) to former employees of Ovato Group of Companies. This extension is crucial as the Act normally does not apply to employees of companies in administration under the Corporations Act 2001. Section 3 of the Declaration specifies that the Act applies to persons who were employed, but are no longer employed, by Ovato Limited (Administrators Appointed), Ovato Print Cairns Pty Ltd (Administrators Appointed), and Ovato Packaging Pty Ltd (Administrators Appointed). This means that former employees of these companies can now claim under the Act for unpaid entitlements, treating the administrator's appointment as if it were a liquidator's appointment. The obligations imposed by this Declaration are primarily on the Ovato Group of Companies and their administrators. The administrators must facilitate the application of the Act by ensuring that former employees can access the necessary information and support to make claims. Additionally, they must cooperate with the Minister for Employment and Workplace Relations to ensure the practical administration of the Act in this specific context. The former employees, on the other hand, need to meet the eligibility criteria set out in section 10 of the Act, including proving that they were employed by the Ovato Group of Companies at the time of their dismissal and that they have not been fully paid for their work. The Declaration also outlines potential consequences for breaches of the Act. While specific penalties are not detailed in the explanatory statement, it is reasonable to infer that breaches could lead to civil or criminal penalties as prescribed under the Fair Entitlements Guarantee Act 2012. The Act provides for fines and imprisonment for offences such as fraudulent claims or failure to comply with the Act's requirements. The penalties can vary depending on the severity of the breach, but they are designed to ensure that the Act's protections are upheld and that former employees receive the financial assistance to which they are entitled. In summary, the Fair Entitlements Guarantee (Extended operation of the Act in relation to Ovato Group of Companies in Administration) Declaration 01/2022 is a significant legislative instrument that extends the protections of the Fair Entitlements Guarantee Act 2012 to former employees of Ovato Group of Companies. It imposes obligations on the administrators to facilitate the application of the Act and on the former employees to meet the eligibility criteria. Any breaches of the Act could result in civil or criminal penalties, reinforcing the importance of compliance with the legislation.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.