Accessorial liability for Contraventions of the Fair Work Act 2009 (Cth): Unanswered Questions

An accessory to a contravention of the Fair Work Act 2009 (Cth) is treated as having personally committed the contravention. Increasingly, claims are being brought by regulators such as the Fair Work Ombudsman against accessories using s 550. Many recent cases have been brought against accessories involved in employer ‘wage theft’. Although it has been stated in many cases that ‘the general principles relating to accessorial liability are settled’, this article demonstrates that the operation of those ‘settled’ principles leave unresolved a number of difficult and important questions in the employment and wage theft context. Perhaps most critically, there is ongoing uncertainty as to whether the ‘accessory’ needs to be aware of the applicability of an award or enterprise agreement governing an employee’s entitlements and, if so, what precisely they need to know about that award.