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ISSUE 7
agent of a company (or a delegate) will be attributed to the company if they are acting within the scope of their actual or apparent authority. If one of these people intended to underpay someone, the company will also be taken to have intended to underpay them. The new provisions will replace this test with the fault elements of intention under the Commonwealth Criminal Code. This means that a company’s intention will be established by proving that: 1. the company’s directors intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; 2. a high managerial agent of the company intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence (unless it can prove that it exercised due diligence to prevent the conduct, or the authorisation or permission); 3. a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with wage and entitlements legislation laws; or 4. the body corporate failed to create and maintain a corporate culture that required compliance with wage and entitlements laws.
“ Complying with the laws is going to be important for Australian businesses, and everyone who has a hand in the payment of workers will have a role to play in compliance. ” The concept of a company’s directors or high managerial agents authorising or permitting an offence is not new. What is new is the concept of an offence occurring because a corporate culture existed that directed, encouraged, tolerated or led to non-compliance, and even further, that an offence occurred because the company failed to proactively create and maintain a corporate culture of compliance. The breadth of the corporate liability provisions under the Criminal Code is very wide. Because of this, they are excluded from many federal criminal statutes, and were excluded from the Fair Work Act, until now.
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