Do you know if the company you work for is a corporate trustee of a trust or a company trading in its own right? Many employees wouldn’t have a clue and until recently, if you were an employee of a corporate trustee and it became insolvent, your claim for employee entitlements wouldn’t have any more weight than all the other unsecured creditors calling for their piece of the liquidated pie. A series of court cases, most recently a decision by the Federal Court, has now changed that in your favour.
If you worked for a company and it goes bust, the law gives you priority to be paid your entitlements including wages and superannuation. There is what’s called a priority regime that applies when a company becomes insolvent.
Until recently, the priority status enjoyed by employees of a company trading in its own right did not apply to employees of a corporate trustee when it became insolvent. In the latter case, employees would have the same priority as, and have to compete for payment with, the unsecured creditors.
Courts say priority regime applies to trusts
A landmark court case in the Full Federal Court has recently decided that employees of an insolvent corporate trading trust should be paid their entitlements subject to the same order of priorities that applied to employees of an insolvent company.
This confirms the decision of a Victorian case, decided on appeal earlier this year. In the Victorian trial case, before the decision was successfully appealed, the judge held that the priority regime didn’t apply to trust assets and therefore employees of an insolvent corporate trustee should be denied the priority payment of their unpaid entitlements. This decision would leave the employees on equal pegging with the other unsecured trust creditors, instead of receiving preferential treatment for their employee entitlements.
The appeal decision recognises that employees need a leg up the creditors’ ladder when a company goes under and they should not be disadvantaged by working for a company that operates through a trust rather than for a company trading in its own right.
There have been many conflicting court cases over the years in this area of employee entitlements in the event of insolvency.
This uncertainty has for now been resolved by the Federal Court, confirming the decision in the Victorian appeal court that there is a level playing field for employees: whether they work for a corporate trustee of a trust or a company trading in its own right, they are entitled to the same priority of payment.
Help in a complex area
If you work for a business that’s becoming or is insolvent, and you need help to get your fair share of the proceeds, we can provide the experienced advice you need.
