28/04/2015

Employees who help their boss breach employment laws can be personally liable for those breaches.

When it comes to matters of employment, the buck usually stops with the employer. For better or worse, they are the ones responsible for ensuring that their employees are looked after and that any legal work requirements are met and followed.  So when a breach of employment conditions under the Fair Work Act occurs, it follows that it’s just the boss who will take the rap right? WRONG.  

Increasingly, many others are finding that they, too, may be in the sights of the Fair Work Ombudsman.

The Fair Work Act has been in place since 2009 and covers the majority of businesses across Australia.  It sets out key employment conditions for businesses to follow and can penalise those who breach it. Not only employers, but key personnel such as HR managers, who know of a breach of the Act possibly occurring and fail to do anything to try and prevent it, can be liable for civil penalties of up to $10,200.

For example, a marine salvage company was found to have breached the Fair Work Act by treating some workers as vocational trainees instead of employees, meaning they received minimal wages for work they carried out.  A captain in the business who was involved in the training program was also found liable after the court determined that it was more than likely the captain knew the workers were being underpaid.

Similarly, an HR manager was found liable under the Act due to his involvement in a company meeting where his employer had decided to restructure the business so as to reduce worker entitlements.  Although responsible for looking after the work arrangements of the employees, the HR manager failed to advise the company of its workplace obligations and was found to have participated in the breach as a result.

But don’t think that ignorance is bliss. The Act also covers breaches where an individual turns a blind eye to the situation to avoid responsibility.

So what should you do to prevent yourself being caught in the wrong place at the wrong time?  If you think that there is a breach of the Act occurring and you are in a position to influence the situation, you should speak up and seek to rectify it before it’s too late. If the boss refuses to listen then you should refuse to participate in the unlawful activities.  

Even if you are not successful in preventing the breach, your efforts may just save you from being tossed in with the boss and facing the penalties that follow.   

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.