Is it the case that an employee is unable to pursue superannuation entitlements against a company in liquidation as a result of the Australian Securities and Investments Commission’s determination that such an employee is not the creditor for the purposes of such recovery, but rather the debtor is the Australian Taxation Office; if so, will the Government consider amending or reforming this area of the law.

When a company is being liquidated because it is insolvent, proofs of debt are lodged with the liquidator and the task of determining who is a creditor falls to the liquidator of the company, not the Australian Securities and Investments Commission. A liquidator may accept or reject a proof of debt, in whole or in part. A creditor dissatisfied with a decision by a liquidator to reject all or part of a claim may appeal to a court. Ultimately the question of who is a creditor is a question of fact and law to be determined by a court. Where superannuation contributions are owed to an employee, the employee can lodge a proof of debt for the unpaid contributions. Where the Australian Taxation Office (ATO) has determined the employer has a superannuation guarantee charge (SGC) liability, the ATO can also lodge a proof of debt in respect of that SGC liability. The Government has announced that it proposes to clarify the status and priority of the SGC in insolvency. Amendments will ensure that SGC attracts the highest priority, along with wages and superannuation, that employee entitlements enjoy under the law. It is expected that the Government will be releasing draft amendments for public comment later in 2006.