The claim of the employee is considered to be the gross salary which includes pension contributions, income tax, surtax, and the net amount of cash received. Salary contributions are not included in priority claims, but share the fate of the claims of other creditors.
Initial assessments already indicate that the new Law on Financial Operations and Pre-Bankruptcy Settlement (NN No. 108/12), which has been in effect since October 1, 2012, will affect the business fate and results of many business entities, those who will initiate pre-bankruptcy settlement procedures and their creditors. Although employees have the status of creditors in relation to their employer, the enactment of the Law does not change the legal status of employees working in companies and with employers who are natural persons that initiate pre-bankruptcy settlement procedures due to illiquidity or insolvency.
Namely, according to this law, claims of employees and former employees arising from employment relationships until the date of opening the pre-bankruptcy settlement are considered priority claims. The Law did not provide for the possibility of waiving part of the claims in the settlement procedure for employee claims as priority claims, but starts from the obligation that all claims of employees arising until the initiation of the pre-bankruptcy settlement procedure must be settled in the restructuring process.
Priority Creditor
As defined in Article 3, paragraph 13 of the Law, priority claims include the gross salaries of employees, severance pay up to the amount prescribed by law or collective agreement, and claims based on compensation for damages suffered due to the consequences of work accidents or occupational diseases. Practically, priority claims are considered all monetary claims arising from the employment relationship that the employer owes to employees and former employees based on the law, collective agreement, work regulations, and employment contracts.
If it concerns monetary receipts on which prescribed contributions and income tax are paid, the employee’s claim is considered to be the gross amount of the receipt which includes pension contributions from the salary, income tax, surtax, and the net amount of cash received. Salary contributions are not included in priority claims, but share the fate of the claims of other creditors.
Without Claim Submission
According to the intention and obligation from the Law, all creditors of the pre-bankruptcy debtor (except for secured and preferential creditors who have a more favorable position in the procedure) are placed in a position to reconsider whether it is more profitable, economically justified, and business-wise sensible to waive part of their claims, voluntarily postpone collection, or even convert some or all of their claims into investments or otherwise enable the pre-bankruptcy debtor a respite and an attempt at recovery.
If a pre-bankruptcy settlement procedure is opened, the creditors of that business entity will voluntarily decide whether they are willing to concede in order to possibly save the business entity from bankruptcy within a certain timeframe along with other implemented measures and thus better protect their business interests. Although employees are also creditors of the pre-bankruptcy debtor for unpaid salaries and other monetary receipts owed to them by the employer, their position is regulated differently.
