Accessorial Liability under the Fair Work Act

Being kept in the dark about the true facts can be an advantage.

In the recent decision of Fair Work Ombudsman v Hu [2019] FCAFC 133 – the Full Court of the Federal Court dealt with whether parties were “knowingly involved” in contraventions of the Fair Work Act, and thereby personally liable for the contravention.

The contraventions involved an underpayment of casual workers engaged to pick mushrooms on a mushroom farm by a company who supplied workers to the farm under contract.

The payments actually made to the workers were not at the level required under the applicable award for casual workers.

Fair Work Act: Ombudsman seeks to prosecute farm owner

The Fair Work Ombudsman sought to prosecute a claim that the company farm owner and its director was knowingly involved in the contravention by the labour hire company.

Section 550 of the Fair Work Act provides in relevant part as follows:

“Involvement in contravention treated in same way as actual contravention

(1)        A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2)       A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)       has aided, abetted, counselled or procured the contravention; or

(b)     has induced the contravention, whether by threats or promises or otherwise; or

(c)     has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)     has conspired with others to effect the contravention.”

The FCA cited with approval the summary by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 when he said:

“In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661.

In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas.

Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213;

That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful…

Actual, rather than imputed, knowledge is required. Giorgianni v The Queen (1985) 156 CLR 473

The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87;  Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011)”


Ombudsman fails to prove case against farmer owner

In reviewing the evidence of meetings between the labour hire parties and the mushroom farm owners and its director, the FCA accepted that the Fair Work Ombudsman had failed to prove to the requisite onus that the farm owners and its director was aware of the casual employment status of the workers and therefore of the rates of pay made in contravention of the award, and refused to draw an inference of such knowledge from the meetings held.

If you have any queries in respect of personal liability under the Fair Work Act, or the matters raised in this article, please contact us.


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