Fair Entitlements Guarantee (Extended operation of the Act in relation to Rosella Foods Pty Ltd and Rosella Food Holdco Pty Ltd in Administration) Declaration 01/2013

Administered by Department of Employment and Workplace Relations

Legislation au F2013L00446 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

(Issued under the Authority of the Minister for Employment and Workplace Relations)

Fair Entitlements Guarantee Act 2012

 Fair Entitlements Guarantee
(Extended operation of the Act in relation to Rosella Foods Pty Ltd and Rosella Food Holdco Pty Ltd in Administration) Declaration 01/2013

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, Rosella Foods Pty Ltd and Rosella Food Holdco Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) (Rosella Foods) which are entities under administration under Part 5.3A of the Corporations Act 2001 (the Corporations 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 Rosella Foods  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 Rosella Foods 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 Rosella Foods.  

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

Statement of Compatibility with Human Rights

 

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

 

The Fair Entitlements Guarantee (Extended operation of the Act in relation to Rosella Foods Pty Ltd and Rosella Food Holdco Pty Ltd in Administration) Declaration 01/2013 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.

 

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

 

This Declaration is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

William Richard Shorten

Minister for Employment and Workplace Relations

 

 

[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 Act 2012 was enacted to provide a safety net for employees who have not been fully paid for work done due to their employer's insolvency or bankruptcy. This Act was introduced to address the gap where employees of companies in administration under the Corporations Act 2001 were not covered by the guarantee. The Act was passed by the Parliament of Australia with the objective of ensuring that employees receive their unpaid entitlements, thereby protecting them from the financial hardship of lost work-related income. In this context, the Fair Entitlements Guarantee (Extended operation of the Act in relation to Rosella Foods Pty Ltd and Rosella Food Holdco Pty Ltd in Administration) Declaration 01/2013 extends the application of the Act to former employees of specified entities under administration, ensuring they can make claims and receive advances if eligible. This extension aligns with the human rights principles of social security by providing a form of social insurance that protects against unemployment-related income loss.

Scope and Application

The Fair Entitlements Guarantee (Extended operation of the Act in relation to Rosella Foods Pty Ltd and Rosella Food Holdco Pty Ltd in Administration) Declaration 01/2013 is an instrument under the Fair Entitlements Guarantee Act 2012, which was enacted to provide financial assistance for workers who have not been fully paid for work done for insolvent or bankrupt employers. This specific declaration extends the application of the Act to former employees of Rosella Foods Pty Ltd and Rosella Food Holdco Pty Ltd, entities that are in administration under Part 5.3A of the Corporations Act 2001. Ordinarily, the Act applies to employees of employers who have entered into insolvency, but not to those whose employers are in administration. The declaration allows former employees of Rosella Foods to make claims under the Act, thereby receiving advances if they meet the eligibility criteria. This expanded scope ensures that employees are protected against loss of income due to their employer’s insolvency, even when the employer is under administration rather than liquidation.

Key Provisions

The Fair Entitlements Guarantee (Extended operation of the Act in relation to Rosella Foods Pty Ltd and Rosella Food Holdco Pty Ltd in Administration) Declaration 01/2013 extends the Fair Entitlements Guarantee Act 2012 to cover employees of Rosella Foods and Rosella Food Holdco Pty Ltd, both of which are under administration under the Corporations Act 2001. This means that former employees of these companies can now make a claim under the Act for unpaid employment entitlements, something that is not generally possible under the Act unless an insolvency event has occurred (sections 49 and 10). The Act normally applies to insolvent employers, but this declaration specifically addresses the situation where an employer is under administration. By making this declaration, the Minister has determined that it is practicable to administer the Act in this context and that the creditors are likely to resolve to wind up the employer (section 49(2)). The Act imposes specific obligations on the parties it governs, including the requirement for former employees to demonstrate their eligibility for an advance, which includes proving that they were employed by the specified entity and that they have unpaid entitlements (section 10). The Act also requires the Minister to consult with relevant parties, such as the insolvency practitioner, to ensure that the declaration is appropriate and practicable (section 49(2)). Additionally, the Minister must consider whether the declaration aligns with the broader objectives of the Fair Entitlements Guarantee Act 2012, which is to provide a safety net for employees affected by their employer's insolvency. The Fair Entitlements Guarantee Act 2012 does not explicitly outline specific offences or penalties for non-compliance with its provisions in this context. However, any misuse of the Act, such as fraudulent claims, could potentially be subject to general legal consequences under Australian law, such as civil penalties for fraud or criminal charges for knowingly making false statements. The primary focus of the Act is to ensure that eligible employees receive their unpaid entitlements, and the declaration serves to expand the scope of the Act to include employees of companies in administration. The Act's compatibility with human rights is also affirmed, as it supports the right to social security and protection from lack of work-related income due to unemployment.

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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.