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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42660
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I have just been informed that the company I was working a

Customer Question

Hi there - I have just been informed that the company I was working for as a Sales consultant has ceased trading (was in Voluntary Administration for a period of about two weeks prior - where we were told to continue as normal). I am owed approximately $6500 in commission on products that have been delivered to customers. I currently have stock that would be valued at approximately $11000 which I assume will have to be returned. However, if there is doubt that I will be getting paid the commission currently outstanding and owed to me, what legal rights do I have in so far as retaining stock to cover the commission?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Daniel replied 1 year ago.

Hello
You are not specifically at liberty to keep the stock, as it is an employment matter, not a civil / contract claim.
http://www.fairwork.gov.au/

Expert:  Daniel replied 1 year ago.

you can make a claim to the fair work ombudsman.
They are the appropriate forum to look into the matter for you.

Customer: replied 1 year ago.
I am finding it very frustrating finding the right type of information. The fair work ombudsman that you have referred me to look up appears to only cover employers not employees. Also there seems to be a lack of information that can assist me - being a commission payment based position. Can you please advise where I can go to obtain information.I have had correspondence with both the CEO of the company involved that owes me money and the Administrator - both of whom have given misleading information to me about submitting a Proof of Debt form. I have found out today that I should have submitted one, and the cut off date for that was ten days ago (ie 18th August 2015). Both the Administrator and the CEO have told me that it was unnecessary to submit one.When I forwarded correspondence to the CEO asking questions about submitting the Proof of Debt form and other questions - I was "repremanded" by him in his return correspondence for doubting his word - ie he had given his word commissions would be paid to all agents. I had only been working for this company for about four weeks, so I owed him no loyalty in believing his word - hence the reason I had forwarded my questions to him. He had said that he had forwarded my email to the Administrator. I received no reply. The CEO also fully expected for all Agents to continue as normal after the announcement of the company going into the hands of the Administrator - and to continue on with sales etc.I have since sent emails to the Administrator asking yet again if Agents should submit a Proof of Debt - and he replied "NO - not at this time".I want to know -
What, if any actions can I take to recoup commission money owed to me of goods already paid for and delivered to customers?Where can you refer me to go for legal advice if you can let me know there is an avenue for me to go down to recoup money outstanding to me?Can I organise a group action (with other Agents) against the CEO personally or the newly named company that is going to be up and operational as from next Wednesday? This company will be selling exactly the same products, just under a new name.Where can I get more information on this situation in relation to commission based jobs - there seems to be none available that I can see?
Customer: replied 1 year ago.
BTW - when I was told to continue on with selling after Administrators had been engaged, I was told by the NSW Sales Agent Team Leader that if I did not continue, I would be not be paid any commission outstanding. For the past 2 weeks, I have had a terrible flu and now I have laryngitis, so I was (luckily) unable to continue during that time due to ill health. I am still on good terms with the NSW Sales Agent Team Leader as I wanted to be kept in the loop.... He is anticipating that I will continue with the "new" company and start selling again as of next Wednesday. (A meeting is planned for Wednesday that I will attend to gauge what is happening and perhaps be given some information that will assist in me recouping what is owed to me).I have done over 10,000 km's (in a four week period) attending to consultations referred to me by the original company so I am hugely out of pocket just with expenses, never lone what is owed to me by way of commission on products already paid for and delivered (under the original company).
Customer: replied 1 year ago.
The reason that "they" want me to continue with the new company is because in the first four weeks of me selling, I achieved the 2nd highest sales in the state. (Second to a sales agent who had been with the company for approximately six years).
Expert:  Leon replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

I note you have been working with another colleague that has opted out. I will do my best to assist

As they have gone into liquidation If you are an employee of the company then you may be entilted to be paid some of your entitlements under the Fair Entitlements Guarantee scheme.

https://employment.gov.au/fair-entitlements-guarantee-feg

The payments are limited though. Any payments they cannot give you become a debt under the liquidation and you will be dealing with the liquidator.

In relation to Superannuation Guarantee and PAYG tax the directors are personally liable and you can contact the ATO to lodge a complaint.

The stock you cannot retain as it belongs to the company and you should be handing that to the liquidator as it is an asset to be liquidated.

If you are a contractor then you are a creditor and you can only deal with the Liquidator.

I hope this makes sense and is of assistance.

If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 1 year ago.
I don't believe you have answered the questions I have been asking! Please check the questions at the end of my first correspondence to you of today.
Customer: replied 1 year ago.
Please also keep in mind - if you have somewhere to refer me to for more information - that I was working on a commission based salary.... there does not appear to be any information I can find in relation to this point as most information is about an employee/employer relationship. I believe, legally, the relationship between a company and a commission based sales person is very different???
Expert:  Leon replied 1 year ago.

The question about retaining Stock?

Customer: replied 1 year ago.
Sorry but I cannot speak over the phone at present because (if you had read what I have already written) I have laryngitis!!!I want to know -
What, if any actions can I take to recoup commission money owed to me of goods already paid for and delivered to customers?Where can you refer me to go for legal advice if you can let me know there is an avenue for me to go down to recoup money outstanding to me?Can I organise a group action (with other Agents) against the CEO personally or the newly named company that is going to be up and operational as from next Wednesday? This company will be selling exactly the same products, just under a new name.Where can I get more information on this situation in relation to commission based jobs - there seems to be none available that I can see?Where can you refer me to so that I may get some legal information about where I stand being a commission based salary with this company?
Expert:  Leon replied 1 year ago.

If they are in liquidation there is nothing that can be done. You are a creditor and you have to list with the liquidator.

Your only avenue is ot sue the company but as it in liquidation you would be wasting your money.

You can only sue the CEO personally if he has signed guarantees to meet the payments personally. Most agreements are with the company alone.

You can contact a Solicitor that practices in Commercial law and they will confirm what I have told you.

You are an unsecured creditor of the company and you will be part of the liquidation.

I am really sorry but there is not much you can do.

If you are owed wages you can claim them through FEG

https://employment.gov.au/fair-entitlements-guarantee-feg

But commissions are not part of that scheme.

If your wages are only commissions then you may have a claim but you need to show the agreement you have to prove it.

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