Posts: Accessorial Liability

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.

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.

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”.

The Federal Circuit Court of Australia (the Court) recently ruled on an application brought by an employee alleging that three respondents had engaged in breaches of the Fair Work Act 2009 (Cth) (FW Act), including sham contracting and dismissing the employee because she was pregnant.

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) provide protections against adverse action which is taken for a prohibited reason. Prohibited reasons for taking adverse action include situations where a person has a workplace right and exercises (or proposes to exercise) that right. Workplace rights include the right to utilise leave entitlements under the FW Act.

Employers have long known that they are obliged to try to find new employment opportunities for employees who are faced with the redundancy of their current role.

The Fair Work Regulations 2009 (Cth) impose a number of obligations on employers with respect to the making and keeping of employee records and pay slips.

The Queensland Government recently passed legislation amending the Criminal Code Act 1899 (the Code) to criminalise wage theft by employers in Queensland.‍The Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (the Bill) was introduced to the Queensland Parliament in response to a Report released in 2018 by the Queensland Parliamentary Education, Employment and Small Business Committee following an inquiry into wage theft in Queensland. The Report identified critical issues in wage theft as well as deliberate action taken by employers to frustrate employees’ attempts to recover entitlements.

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.

The Federal Circuit Court of Australia recently found a director and two managers of a company which operated a Victorian BP Service station personally liable for the underpayment of wages and breaches of the Fair Work Act 2009.

It is quite common to be walking on a busy street or in a shopping centre and be approached by someone asking for a donation for a specific charity. Have you ever wondered about how much these “fundraisers” are being paid? Well, the Fair Work Ombudsman (FWO) has.