By Joydeep Hor and Theresa MacDermott -
Snapshot
- While company directors are a common target in proceedings brought under the Fair Work Act, other individuals in key roles such as managers, compliance officers and senior human resources staff may also be at risk of being found liable as accessories to breaches of the Act by the employer in cases where those individuals have the requisite knowledge of the unlawful activity.
- The most common form of involvement relied on in enforcement proceedings is whether the individual has been ‘knowingly concerned in or party to the contravention’ (s 550(2)(c)). The conduct in question may take the form of an act or omission, with the potential to capture a failure to act where some form of action would have been the appropriate response.
- ‘Willful blindness’ may be a substitute for actual knowledge
- Diligent adherence to compliance obligations will minimise the risk of personal liability.
Regulatory agencies are showing increasing interest in holding directors and managers accountable for their involvement in contraventions of the Fair Work Act 2009 (Cth) (‘FW Act’). Where proceedings are brought against individuals personally in these circumstances, their liability is based on their knowledge of the conduct giving rise to the alleged contravention, and is often pursued in addition to any liability on the part of the employing entity. ‘Willful blindness’ to the contravening conduct can also be a basis of liability.
The approach of targeting individuals personally for employment law breaches is an enforcement strategy designed to build accountability. It is also aimed at motivating key personnel within employing entities in order to positively influence the manner in which compliance is pursued within their organisations, thereby minimising the risk of any personal liability on the part of the key personnel for any shortcomings in compliance. In addition, it is a useful strategy where a corporate entity is, or may become, insolvent, or a recent corporate restructure could interfere with the recovery of a civil penalty or outstanding employee entitlements.
