Australia: Workplace law breaches: Third party business advisors beware

Last Updated: 3 July 2017
Article by Allyce Silm


It is extremely common nowadays for small businesses with limited resources to rely heavily on their trusted advisors to keep their business running. A tricky situation arises when breaches of the Fair Work Act occur. Who is liable if the trusted advisors give incorrect or bad advice, or deliberately assist with a contravention of the Fair Work Act? Fair Work Ombudsman Natalie James has stated that in the circumstances where third party advisors assist in contravention of the Fair Work Act, the Fair Work Ombudsman believes the third party advisors should be held accountable, and a recent decision handed down against EZY Accounting 123 Pty Ltd demonstrates this.


  • The decision recently handed down demonstrates that the Fair Work Ombudsman has found third party business advisors liable for their clients' breaches.
  • On 28 April 2017, the Court delivered its decision in Fair Work Ombudsman v Blue Impressions Pty Ltd & Ors, marking the first time that the Fair Work Ombudsman has prosecuted a third party business advisor for breaches by a client's business.
  • The third party business advisor, Ezy Accounting 123 Pty Ltd, was the accountancy firm for Blue Impressions Pty Ltd, and also provided payroll services a part of its engagement with Blue Impressions Pty Ltd.
  • This case now sets the bar that, any actual or constructive knowledge of a client's contravention of the Fair Work Act, renders the third party business advisor a knowing participant in the breach of the Fair Work Act.
  • Therefore, those in third party advisory positions such as human resources advisor, accountants, and payroll providers, must actively consider if the work they are providing and undertaking may potentially facilitate a breach of the Fair Work Act.
  • A breach of Section 550 of the Fair Work Act attracts significant penalties – with the maximum penalty for an individual being $10,200, and $51,000.00 for a corporation.


  • Blue Impressions Pty Ltd ran a Japanese fast food outlet in Melbourne. They were taken to court in 2016 by the Fair Work Ombudsman for underpaying two Taiwanese backpackers (totalling nearly $10,000.00).
  • Ezy Accounting 123 Pty Ltd was also taken to Court by the Fair Work Ombudsman for its involvement in the underpayment claim.
  • Ezy Accounting 123 Pty Ltd processed the wage payments for the two workers, knowing the rates they were being paid were well below the lawful minimum (the workers were allegedly paid a flat rate of $16.50 per hour).
  • The Court found that Ezy Accounting 123 Pty Ltd had breached the Fair Work Act by being 'involved in' their client's breaches and as such were accessorially liable (pursuant to section 550 of the Fair Work Act). Accessorial liability is, in plain terms, being an accessory to a wrongdoing or breach of the Fair Work Act (and as such sharing the responsibility of the wrongdoing or breach). Section 550 of the Fair Work Act provides that a person is accessorially liable if that person:
    • Has conspired with others to effect the contravention;
    • Has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention;
    • Has induced the contravention, whether by threats or promises or otherwise;
    • Has aided, abetted, counselled or procured the contravention.


  • As a result of this decision, third party business advisors that are knowingly concerned in or involved in their client's breaches of the Fair Work Act can also be found to have breached the Fair Work Act by way of accessorial liability (section 550 of the Fair Work Act).
  • Third party advisors have previously used the defence that it is not their responsibility to ensure their client is not breaching the legislation, and further, that whilst they had the knowledge of the essential facts of the breach, they didn't realise it was in fact a breach.
    • Case law now provides that third party advisors may still be in breach when:
    • The advisor has knowledge of the essential facts of the contravention;
    • The advisor is knowingly concerned in or involved in the breach;
    • The person is an intentional participant in the breach – wilful blindness is not an excuse.
  • It is therefore not sufficient for you, as a third party advisor, to simply say that you are just taking instructions.


  • Here are some steps to incorporate into your everyday business in order to avoid becoming liable under section 550 of the Fair Work Act:
    • Know your obligations under the Fair Work Act and the relevant award in which you are advising on, and provide advice within these boundaries.
    • Review your contracts/agreements to include the following:
      • Clauses that require clients to adhere to the requirements of the Fair Work Act, and further, a disclaimer from the client acknowledging that they comply with all relevant laws; and
      • "Release and indemnity" clauses which release and indemnify you as a third party advisor for any breaches of workplace or employment law legislation and regulations.
    • If you are ever in doubt regarding whether or not your client is complying with their legal obligations – seek early legal advice yourself, and, refer your client to an employment lawyer.

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.

Allyce Silm
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