In brief

We have said it before, and we will say it again, the accessorial liability provisions in the Fair Work Act 2009 (Cth) (Act) have broad reaching implications on a range of persons including company directors, human resources personnel, payroll officers and external advisers (such as accountants and payroll providers).

What you need to know

  • An external accountancy firm was recently found to have been ‘involved in’ its client’s contraventions of the Act and was consequently ordered to pay a pecuniary penalty of $51,330.
  • For a refresher on the accessorial liability provisions of the Act, see our July 2017 article, ‘Could you be found accessorily liable under the Fair Work Act 2009 (Cth)?

The decision

In the article we referenced a decision of the Federal Circuit Court in Fair Work Ombudsman (FWO) v Blue Impression Pty Ltd & Ors [2017] FCCA 810 in which an external accountancy firm was found accessorily liable in relation to underpayments made by the employer.

The employer in that decision, Blue Impression Pty Ltd (Employer), operated a Japanese fast food chain. The external accountancy firm, Ezy Accounting 123 Pty Ltd (Ezy), provided payroll services to the Employer.

The Employer was found to have underpaid two of its 417 visa workers a total of $9,549 and was ordered to pay a penalty of $115,706.

Ezy was found to have been ‘involved in’ the Employer’s contraventions for the purposes of section 550 of the FW Act as:

  • it was aware of the relevant minimum award rates as it had assisted the Employer in calculating and rectifying underpayments that had been identified by the FWO during a 2014 audit;
  • despite being aware that the Employer’s pay rates were incorrect, it failed to alter the hourly rates in the Employer’s MYOB system over which it had control; and
  • despite recommending that the Employer comply with an audit finding letter sent by the FWO, it did not ensure that the pay rates that had been provided to it for use in the MYOB system had been updated.

The primary Judge likened Ezy’s conduct to ‘wilful blindness’ and Ezy was ordered to pay a pecuniary penalty of $53,880.

The appeal

EZY appealed the primary Judge’s decision to the Full Federal Court.

The Full Federal Court recently handed down its decision in which it:

  • dismissed Ezy’s appeal;
  • agreed with the primary judge’s findings that Ezy was ‘involved in’ the Employer’s contraventions; and
  • reduced the penalty to $51,330 on the basis that the court had not provided reasons for a couple of the alleged contraventions.

The implications

The above decisions demonstrate that external advisors can be prosecuted for contraventions made by clients that they are advising.

As such, external advisers should mitigate the risk of being found to be an accessory. It is important to note that, on its own, not participating in any contravention will not be enough. External advisers should also take proactive steps to prevent (or at least recommend against) contraventions of the Act. This may include:

  • being equipped with the knowledge of the Act and other relevant laws in order to ensure compliance;
  • taking steps to advise and/or recommend (in writing) against a particular action or practice if it will contravene the Act;
  • if the employer continues to engage in the particular action or practice that contravenes the Act:
    • obtaining external legal advice as to available options and potential liability in the circumstances; and/or
    • severing the contractual relationship with the employer altogether.

Conclusion

The accessorial liability provisions of the Act have broad reaching implications on a range of persons and companies including external advisers. If you require assistance in understanding your obligations, it is important to seek advice in order to place yourself in a good defensible position in relation to any potential liability.

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