Findings of accessorial liability for contraventions of the Fair Work Act 2009 (Cth) (FW Act) are now frequent occurrences. Most commonly, the individuals found to have been involved in contraventions of the FW Act are directors of companies, and those findings of personal liability result from prosecutions brought by the Fair Work Ombudsman (FWO).
However, employers and their managers should be aware that it is not only the FWO that is able to bring claims alleging accessorial liability for a FW Act breach under s550 of the FW Act.
Employees making claims against their employers are able to name individuals they believe to have been involved in the contraventions of the FW Act that make up their claim. Unions can also bring those claims on behalf of the employees they represent. It is not only directors or officers who can be named as alleged contraveners, but any person involved. That includes HR managers, team leaders and even third parties like payroll providers.
Recently, in the decision of MTCT Services Pty Ltd v Australian Workers’ Union [2018] FCA 1648, the Federal Court of Australia granted the AWU, the AMWU and CEPU permission to amend their cross-claim in proceedings against MTCT Services Pty Ltd (MTCT) to allege that MTCT’s Industrial Relations Manager was involved in contraventions of the FW Act.
Those contraventions, it is claimed, result from MTCT failing to properly apply the transfer of business provisions in the FW Act to its employees and the industrial instruments that applied to their employment.
The unions claim that the IR Manager was involved in those contraventions of the FW Act.
This latest move by the unions forms part of a long-running dispute with MCTC (and its parent company UGL Operations and Maintenance Pty Ltd) concerning pay and conditions for contract maintenance workers at Esso Australia Pty Ltd’s Bass Strait facilities. It demonstrates that the accessorial liability provisions of the FW Act are not only utilised as enforcement methods by the regulator (the FWO) but can also be utilised by other parties pursuing claims under the FW Act.
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