Q2: What constitutes ‘accessorial liability’? Use an FWO case to illustrate your answer.
The act of an individual with authority failing to prevent the organization or another person from contravening the provision of fair work Act 2009 constitutes accessorial liability. Under the fair work act 2009, employers are responsible for ensuring that their employees are provided with minimum pay and conditions prescribed by the Act. Section 550 of the Act places personal responsibilities on individuals who fail to ensure compliance with Act (Webster, 2017). Recent FWO cases seem to suggest that if one has some authority in an organization that is somehow related to compliance of the fair work act 2009 requirement but failed to used that authority to do so, they will be held personally responsible for the contravention of the law as long as they are aware of such contravention. In this case, those with the relevant authority include the company directors, the company HR managers, the company CEO or day-to-day manager, and even the accountant. for instance, in a recent FWO case, Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown, the HR manager who processed underpayment of almost $600,000 to 85 Chinese restaurant staff and helped falsify record was held liable for the companies breach of fair work Act 2009 and was therefore fined $21,760. The court found that she has failed her authority as the restaurant HR manager to ensure that employees were paid the correct hourly rate, weekend penalty rate, casual loading, and overtime. In another FWO case, Fair Work Ombudsman v Blue Impression Pty Ltd & Ors an external accountant who had advised a business on its employees' arrangement was held under the accessorial liability provision of the Fair work act 2009. These recent case shows suggest accessorial liability provision (section 550 of the fair work act 2009 will apply where individuals have authority either due to their formal position in the organization or due to their level of expertise fails to stop an organization in which they are involved in contravening the provision of the Fair work act 2009 will be personally held liable.
So in conclusion, two elements seem to be the primary guide in recent accessorial liability cases. I.e. 1) relevant authority and 2) failure to intervene to stop contravention. If these two are present then the act or the conduct of an individual’s constitute an accessorial liability
References
Fair Work Ombudsman v Blue Impression Pty Ltd & Ors [2017] FCCA 810 (28 April 2017)
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 (19 November 2017)