Accounting Firm Faces Penalties Under Accessorial Liability Provision

By Renee Karakinos, Law Clerk, MST Lawyers and Chao Ni, Senior Associate, MST Lawyers        

The Fair Work Ombudsman has, for the first time, utilised the accessorial liability provisions in section 550 of the Fair Work Act 2009 against an external accountant in the case of FWO v Blue Impression Pty Ltd & Ors (No.2) [2017] FCCA 2797.

Accessorial Liability Provision under the Fair Work Act 2009 (Cth)

Section 550 of the Fair Work Act 2009 (Cth) (FW Act) provides:

(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.

Background

In April 2017, the Federal Circuit Court was asked to decide whether Ezy Accounting 123 Pty Ltd (Ezy) was liable for knowingly helping one of its clients, Blue Impression Pty Ltd (Blue Impression), exploit vulnerable employees.

Blue Impression was fined $115,706.00 for underpaying two of its employees between September 2014 and April 2015.  Both underpaid employees were subject to a 417 working holiday visa and were paid less than their minimum entitlements under the Fast Food Industry Award 2010 (FFIA).

Ezy was involved in a relationship with Blue Impressions where it provided payroll services.  The Court concluded that Ezy had a responsibility to ensure that Blue Impressions complied with its obligations under the FW Act and the FFIA.

The Court fined Ezy an amount of $53,880.00 for contravening section 550 of the FW Act by being knowingly involved in Blue Impression’s contraventions of the FW Act and FFIA.  It found that Ezy had been “willfully blind” when transacting the payroll payments on behalf of Blue Impression.

Implications

This case highlights the risks and dangers for external advisors who may have knowledge of their client’s payroll practices.  This includes business consultants, payroll providers, accountants and even lawyers.

The Court expressly stated that Ezy (and implicitly all other external advisors) had a responsibility to ensure there was compliance with workplace laws, ahead of their own business interests.

For more information, contact our Employment Law team by calling +61 3 8540 0200 or send an email to workplace@mst.com.au