HR managers in the firing line

Accessorial liability under the Fair Work Act extends responsibility for breaches of workplace laws to other companies or individuals who have knowingly played a part in the conduct.

Under these provisions, an accessory can be held legally accountable for a range of contraventions, including underpayment of wages, failure to provide leave benefits and sham contracting.

If you think of your business as being a vehicle that needs a driver, then generally, directors are responsible if the vehicle veers off the road, or worse yet, crashes and causes serious damage.

But the Fair Work Ombudsman has in recent times shifted the focus on accessorial liability beyond company directors to those working in human resources, management and recruitment.

This means that if you are the HR manager of your business, you need to take greater care in the advice that you give to the business because you are now the navigator in the vehicle and can be responsible for the direction the driver steers it.

So, what level of responsibility do HR professionals have?

To be held liable, s550 of the Act requires a person to have aided, abetted, counselled or procured the contravention, induced the contravention by threats or otherwise, conspired with others to effect the contravention, or if the person has been in any way was knowingly concerned in, or a party to, a contravention.

This last requirement is very broad, and will include any person who is deliberately shutting their eyes to obvious conduct or facts. It will be assumed that HR professionals are across the legislation and the minimum requirements, and that contraventions should be easily identifiable and brought to your employers’ attention.

While broad, it is unlikely to include negligence or recklessness, but if an employer cops a heft penalty due to their HR manager’s negligence or recklessness, that manager is most likely going to be looking for a new job.

CCI’s Employee Relations Advice Centre and Workplace Consulting Team can be your pit-team and assist you to keep your vehicle operating smoothly, so if you have any questions about accessorial liability or other workplace issues, please contact us on 9365 7500.

To ensure that your navigator completely understands their obligations under workplace laws, we also offer an intensive Masterclass which will be running in November. Please go to https://www.cciwa.com/cci-ir-master-class for more details.

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