Fair Work Breaches and Third Party Accessories

In the recent decision in Fair Work Ombudsman v Blue Impression Pty Ltd & Ors the Fair Work Ombudsman (FWO) has named a third party an accessory to contraventions of the Fair Work Act (FWA).

Blue Impression failed to pay the minimum hourly rate of pay to its employees, or provide meal breaks as required under the relevant award. The accounting firm which undertook the accounting work for Blue Impressions was liable as an accessory to these contraventions under the FWA.

Under s 550(1) of the FWA a person who is ‘involved in’ a contravention of a civil remedy provision is taken to have contravened that provision. A person is involved in a contravention of a civil remedy provision if the person has:

  • Aided, abetted, counselled or procured the contravention: s550(2)(a);
  • Induced the contravention, whether by threats, promise or otherwise: s550(2)(b);
  • Been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention: s550(2)(c);
  • Conspired with others to effect the contraventions: s550(2)(d);

A person for which this section applies can either be an individual of a corporate entity.

The next question is, what does it require to be involved in and knowingly concerned in a statutory convention. This has been set out in the above mentioned case as follows:

  • There is a practical connection between that person and the contravention;
  • The person must have been, at the time of the contravention, an intentional participant with actual knowledge of the essential elements constituting the contravention;
  • However, actual knowledge can be inferred from a combination of:
    • A person’s knowledge of suspicious circumstances; and
    • That person’s decision not to make enquiries to remove those suspicions.

The above implication is that a person is unable to raise a defence merely by saying they did not know due to being a third party and not directly involved. If on the balance of probabilities, the third party knew or ought to have known through further obvious investigations, then they will be held liable as an accessory to the FWA breach.

This further establishes the legal maxim that ignorance is not defence to a contravention.

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Authored by

Raea Khan

Director Lawyer

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Raea Khan Circle
Director Lawyer
Raea Khan

Raea is Managing Director and Principal Lawyer for PBl Law Group. Raea assists clients with major projects, property developments, construction and strata law.

He has worked in Western Australia and Queensland assisting with expansion projects in the energy and resource sector and now predominately advises clients in Strata and Community Association matters.

He is a member of the Australian College of Strata Lawyers where majority of his work is advising developers and owners corporations with dispute related minor and major defects, strata governance and common property litigation. He is proficient at leading negotiations and meetings.

Raea has a particular interest in the commercial aspect of any dispute and always tries to weigh up the risk, reward and benefit of legal proceedings at each different stage.

Raea enjoys all forms of competitive sport, including Crossfit and actively participates in Triathlons, representing Australia as an age group athlete. He was a member of Red Head Surf Lifesaving club.

  • Strata Law
  • Construction & Major Projects
  • Commercial and Business Law
  • Planning & Environment Law