You are likely to be classified as an employee if you are:
engaged by a company under an award, enterprise agreement, agreement-based transitional instruments (which are agreements that were in force before the commencement of the Fair Work Act 2009), or a contract of employment, and
paid a salary, wages or commission.
Contractors are not employees. They are ordinary unsecured creditors of the company. An unsecured creditor is a person or company who is owed money and does not hold security over the company's property.
If you are an employee who is owed money for unpaid wages, superannuation, annual leave, sick leave, long service leave, retrenchment pay or other benefits, you are a creditor of the company. You may be entitled to some or all of what you are owed in priority to the company’s other creditors.
Is my employer in financial trouble?
Signs that may indicate that your employer is in financial trouble include late payment of your wages or unpaid wages and unpaid superannuation to your nominated superannuation fund.
What are my options if my employer is in financial trouble?
If you suspect that your employer is in financial difficulty, you should first raise your concerns with your employer. If this fails to resolve your concerns, your options can include:
seeking legal advice
lodging a complaint with the ATO regarding unpaid superannuation (link below)
contacting your local union member (if relevant)
lodging a complaint with ASIC (link below)
Employees who are owed certain employee entitlements after losing their job because their employer went bankrupt or into liquidation may be able to get financial help from the Australian Government. This help is available through the General Employee Entitlements and Redundancy Scheme (GEERS) if their employer went bankrupt or entered liquidation before 5 December 2012, or through the Fair Entitlements Guarantee (FEG) if their employer went bankrupt or entered liquidation on or after 5 December 2012.
GEERS will continue to operate in relation to claims for assistance for unpaid employee entitlements for employer insolvency events that occurred before 5 December 2012. For more information about GEERS visit Department of Employment, Education and Workplace Relations' GEERS webpage (www.deewr.gov.au/geers), call the GEERS Hotline on 1300 135 040 or email GEERS@deewr.gov.au.