Resources: Blogs

Anyone can accessorise

Blogs
|

The accessorial liability provisions 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.

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.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

HR Manager fined $7,600 for accessorial liability in adverse action against employee

Taking it personally

Last year, the Federal Circuit and Family Court of Australia found a HR Manager to be accessorily liable for his involvement in an employer’s unlawful adverse action against an employee after she proposed to exercise a workplace right, being her ability to initiate proceedings under a workplace law.

Read more...

Court finds HR manager accessorily liable for adverse action claim

Supreme failure

The Fair Work Act 2009 (Cth) contains provisions which make it possible for individuals to be found accessorily liable for their involvement in a contravention of a workplace law. In particular, section 550 of the FW Act provides that a person “involved in” a contravention will be taken to have contravened that provision themselves.

Read more...

Court confirms small claim proceedings extends to matters involving accessorial liability

The deregistered accessory

Under the Fair Work Act 2009 (Cth), the Federal Circuit and Family Court of Australia (Division 2) is able to determine certain underpayment disputes as “small claims proceedings”.

Read more...

FWO secures penalties against bar operator and external accounting firm

Closing time

The Fair Work Act 2009 (Cth) requires employers to keep certain employee records for a period of 7 years. These records are necessary to ensure that employees have been paid their minimum entitlements should an underpayment claim be made.

Read more...

Employer found liable for workers compensation despite worker’s unreasonable perceptions

Fact or fiction

A recent decision of the New South Wales Personal Injury Commission serves as a reminder of the differing standards of proof when determining liability for claims of bullying and/or harassment under workers compensation laws and the Fair Work Act 2009 (Cth).

Read more...

Commission finds employee’s flexible working request to work entirely from home was not reasonable

The worst has now passed

One of the many changes to the Fair Work Act 2009 (Cth) introduced this year include the Fair Work Commission’s new powers to deal with disputes relating to requests for flexible working arrangements.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.