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VIC Company in Voluntary Administration - What are My Rights?

Discussion in 'Employment Law Forum' started by Sweeney Todd, 12 July 2016.

  1. Sweeney Todd

    Sweeney Todd Well-Known Member

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    Hi,

    I am in a bit of dilemma with regards to my current situation with my agency who has assigned me to perform contractual work with a client. I am engaged as a contractor with the agency, and they have assigned me to a client with whom I have been working with for the last 2 years.

    I have recently found out that the agency is now in voluntary administration. The agency has relayed that they have every confidence of sorting the situation they are in, with a timeframe of one month to solve it and return the company's steer to the directors after getting the creditors to agree to their DOCA. In the meantime, my contract is up for renewal at the end of the month; and the client is keen on further renewing it.

    I am currently not keen on signing another conditional agreement based on the latest update, nor do I have confidence on what the future will hold for this agency. I am bound by their restraint of trade clause which states that they can enforce from up to 6 months depending on how the court fits the reasonable time frame is accorded.

    To boot, I am now reminded that I had to chase them up a couple months ago for failing to pay my super which was 8 months overdue.

    What are my rights in this case, and can I enlist another agency to go with without defaulting on the restraint clause within reasonable means?
     
  2. Rod

    Rod Well-Known Member

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    Why not contract directly with the client?

    If superannuation is overdue then prima facie they have broken the contract and all future obligations can be dismissed. You will need to advise them of your repudiation. Note that they are still obliged to pay your superannuation, if they survive the voluntary administration. If they don't, you may have an action directly against the directors to recover employee entitlements.

    Yes.
     
  3. Sweeney Todd

    Sweeney Todd Well-Known Member

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    Thanks Rod :) I was quite worried as I don't want to be "forced" into hand into signing the extension with them (and I am only a preferred creditor not a secured creditor).
     
  4. Serge Gorval

    Serge Gorval Well-Known Member

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    Hi

    Can you confirm that you are engaged under an Employment contract as an Employee? I imagine that you are if you have a restrictive covenant in the contract.

    Provided that you are an employee, and in the event your employer is placed in liquidation, you can apply to GEERS for your entitlements inc AL, redundancy and upto 13 weeks wages.
     
  5. Sweeney Todd

    Sweeney Todd Well-Known Member

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    Hi Serge, no not as am employee but as an independent contractor as part of a pool of contractors. My engagement letter is clearly stated it's an "independent contractor agreement", not entitled to any employee benefits as such, which means, I don't possibly have rights as say, an actual employee of the agency.
     
  6. Serge Gorval

    Serge Gorval Well-Known Member

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    Employee vs contractor arrangements are quite complex and depend on the circumstances.

    If you are a genuine contractor, and the company goes under, you will be an unsecured creditor. ( poor chances). Tto minimise exposure, you should consider getting a personal guarantee in place which will secure your position.

    I would like to know more to properly assess your claim at law. If you would like a free phone consult, book a time with me Serge Gorval - Sydney, NSW - LawTap Find a Lawyer & Book Online Instantly.
     

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