Cause for Vigilance!
A string of recent employment cases involving the Fair Work Ombudsman have clearly illustrated the risk posed by the ‘accessorial liability’ provisions within the Fair Work Act.
In essence:
- accessorial liability is a legal doctrine used to extend legal responsibility for an unlawful act to those involved in or associated with the act
- in employment claims, accessorial liability can also render a director and/or manager liable for an employer’s contravention of the Fair Work Act
Accessorial Liability under the Fair Work Act
Under the Fair Work Act a person who is ‘involved’ in a contravention of the Fair Work Act is taken to have contravened that provision, where the person:
- has aided, abetted, counselled or procured the contravention; or
- has induced the contravention, whether by threats or promises or otherwise; or
- has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
- has conspired with others to effect the contravention.
Founding Employment Decision
The foundation for such claims brought under the Fair Work Act was the decision of Guirguis v Ten Twelve Pty Ltd & Anor where the court held that in order for a person to be liable under the accessorial liability provisions of the Fair Work Act the person must: [...]
