Australia: Personal liability for employment law breaches: a broader approach means more of us are in the firing line

Last Updated: 16 February 2017
Article by Deanna Oberdan

The Fair Work Ombudsman, Natalie James, has said that the Fair Work Ombudsman is "adventurously testing the limits of accessorial liability provisions". Last financial year the FWO sought orders against accessories in 46 out of 50 matters she filed in court.

The adventure (and development of the law) will continue this year. Ms James tweeted in January 2017 that a payroll manager has "now paid a price" after being fined $7,000 for being involved in the underpayment of workers.

Not only is the FWO pursuing individuals facilitating breaches, the trend is for individual applicants and their lawyers to also include managers and work colleagues in claims for breaches of employment laws under the accessorial liability provisions in the Fair Work Act 2009.

If you are involved in facilitating a breach of workplace laws, you can be personally liable to a penalty and to pay compensation. An accessory can be human resources staff (including payroll officers), advisors, managers and even recruiters. An accessory could even extend to those higher up in supply chains and franchise arrangements.

In this bulletin, we take a look at the accessory provisions in the FW Act. In subsequent bulletins, we will analyse the issue in more detail, and critically. Certainly, some businesses complain that the reach of the accessory provisions goes too far.

What does the legislation say?

Under the FW Act someone who is 'involved in a contravention', can be considered an accessory to a contravention of workplace laws by the business. Currently, the maximum penalty for an individual involved in a contravention is $10,800 per contravention.

The definition of being 'involved in a contravention' is broad. If a person:

  • aids, abets, counsels or procures the contravention, or
  • induces the contravention, by threats, promises or otherwise, or
  • is in any way, by act or omission, directly or indirectly, knowingly concerned in or a party to the contravention, or
  • conspires with others to bring about the contravention,

then that person is involved in a contravention. That is, that person is taken to have committed the contravention along with the business.

As we discuss below, not knowing that the actual conduct amounts to an offence and is unlawful is not a defence.

Recent cases

Recent cases are demonstrating that the courts will impose significant penalties against both individuals and businesses that contravene workplace laws.

It is not uncommon that directors and owners of business are sued for breaching workplace laws. Recently, a sole director of a security company was ordered to pay penalties for his involvement in the employer's contraventions of $51,400, and compensation of $22,779 in respect of the underpayments: Fair Work Ombudsman v Step Ahead Security Services Pty Ltd & Anor [2016] FCCA 1482.

Recent media focus has extended attention to individuals and companies that make up part of a group of companies, such as supply chains and franchises.

This happened in the very recent case of Fair Work Ombudsman v Yoguberry World Square Pty Ltd [2016] FCA 1290, where fines totalling $146,000 were imposed. Yoguberry is a frozen yoghurt chain that sells take away frozen yoghurt and drinks.

In this case, the parties joined to the proceedings were part of a group of family companies and included the director/owner of the business. Whilst they all admitted to being involved in the underpayments and other contraventions of the employing corporate entities, what is notable is that the payroll or service company and the owner were also prosecuted and fined under accessorial liability provisions.

And in another case, two individuals who were part of a supply chain and involved in the underpayment of trolley collectors, were ordered to pay penalties of $44,550 each: Fair Work Ombudsman v Al Hilfi [2016] FCA 193.

These cases illustrates that accessorial liability can occur in a broad range of circumstances beyond just the traditional boundaries of employer and employee.

It is also wrong to assume that just owners of the employing entity are liable. There have been other cases where penalties have been imposed against non-director non-owner accessories including human resources staff, administration or day to day managers, staff engaged to assist with recruitment and supervision.

As we said above, the FWO recently on 23 January 2017 secured $143,000 in penalties against a Brisbane business for underpaying two workers $18,000. Notably, the former payroll and account manager was fined $7,000 for their involvement in the contraventions (despite not being primarily responsible for operating the business).

Are you at risk of a claim against you?

Are you in a position to influence the decisions of the employer? What does it mean to be 'knowingly involved in a contravention'?

The concept of accessorial liability is not new and has its origins in the then Trade Practices Act 1974 (Cth). Under that legislation, similar worded accessorial liability provisions were used.

The High Court of Australia in Yorke v Lucas [1985] HCA 65 considered whether under the TP Act for an individual to be 'involved in a contravention' that person needed to have actual knowledge that the conduct was in breach of the law. The High Court said

"There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention ... In the context of the paragraph, a person could only properly be said to be "part to" a "contravention" if his participation was in the context of knowledge of the essential facts constituting the particular contravention in question.....

In our view ... [in order to be knowingly concerned] ...requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention."

As we said above, ignorance is no defence.

What can the business and you do to reduce risk?

It seems imperative that businesses conduct a compliance audit of the workplace routinely. This should be done by someone who has knowledge of the relevant legal obligations, work related entitlements, and workplace laws.

Training of staff, directors and persons who are able to influence decisions of the employer is pretty obvious but an essential step to achieve compliance.

And, of course, if an employee complains about compliance of workplace laws, act on it. Make sure complaints are handled appropriately.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions