what every hr manager, accountant, bookkeeper and business ... · 28/11/2016 1 avoiding personal...

28/11/2016

1

Avoiding Personal Penalties for Accessorial Liability:

What Every HR Manager, Accountant, Bookkeeper and Business Advisor Should Know

David Bates BA(Govt), LL.B(Hons)

Managing Director, Workforce Guardian

Introducing Workforce Guardian

28/11/2016

2

Today’s Presentation

1. How Would You Respond?

2. What is Accessorial Liability?

3. How can you be held personally liable?

4. Steps you can take to protect yourself and your clients

How Would You Respond to These Questions?

• I have just fired my employee for stealing $500 from me. Please deduct that amount from their final pay.

28/11/2016

3


• I have just fired my employee for stealing $500 from me. Please deduct that amount from their final pay.

•Unlawful deduction: maximum penalty $54,000


•My employee works in our 7-11 store. How much do I need to pay them?

28/11/2016

4


• My employee works in our take away cafe. How much do I need to pay them?

• Which Award?• Full-time, part-time, or casual?• Adult or junior?• Which days and hours do they work?• Which allowances are they entitled to receive?• What’s their star sign?


•Our clerical employee is paid an annualised salary, so do I need to pay annual loading when they take leave?

28/11/2016

5


•Our clerical employee is paid an annualised salary, so do I need to pay annual loading when they take leave?

• Clause 17.1

• Simone Jade Stewart v Next Residential Pty Ltd


•Our part-time clerical employee works different hours each week. Do I need to pay them for a public holiday?

28/11/2016

6


•Our part-time clerical employee works different hours each week. Do I need to pay them for a public holiday?

• Clause 11.3

•Maximum potential penalty of $54,000

What is Accessorial Liability?

Section 550 of the Fair Work Act 2009

(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.

28/11/2016

7


Section 550 of the Fair Work Act 2009

(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.


•You can be held personally

liable as an accessory for

indirectly not doing something!

28/11/2016

8


•The Fair Work Ombudsman (FWO) is now actively targeting key business advisors, including:

•Accountants•Bookkeepers•HR Managers, and •Company Directors


•Think it won’t happen to you?

??% of all litigation initiated by the FWO against employers last year included orders being sought against ‘accessories’?

28/11/2016

9



92% of all litigation initiated by the FWO against employers last year included orders being sought against ‘accessories’?



“Above all, you must explain the rules to your clients, make it clear when they are in danger of breaking them and not become involved in breaches of the law yourself.” (FWO AHRI Speech 27 July 2016)

28/11/2016

10



“Be warned…we have a growing arsenal of options to help us make workplaces fair and you don’t want to get caught in the crossfire when we go after [your clients] who do the wrong thing.” (FWO Press Release 23 June 2016)

28/11/2016

11

How You Could Be Held Personally Liable

•How you could become an accessory:

• You assist with any aspect of HR and/or payroll processing• You provide advice about pay rates, the National Employment Standards

(NES), Modern Awards or any other Fair Work-related entitlements• You assist with labour hire arrangements through a supply chain or franchise

network• You provide advice about independent contracting arrangements

• Or….


•How you could become an accessory:

• You assist with any aspect of HR and/or payroll processing• You provide advice about pay rates, the National Employment Standards

(NES), Modern Awards or any other Fair Work-related entitlements• You assist with labour hire arrangements through a supply chain or franchise

network• You provide advice about independent contracting arrangements

• Or….you ‘indirectly omit’ to do any of these things!

28/11/2016

12


•Recent Prosecutions:

• HR manager for Oz Staff Career Services personally fined $9920 for role in processing unlawful-deductions and record-keeping breaches.

• Director of Step Ahead Security Services Pty Ltd ordered to personally pay $51,400 for underpaying eight casual security guards on the Gold Coast.

• Manager responsible for payroll and administrative functions at Crystal Car Wash outlets in Sydney personally fined $10,000.

• HR manager found liable as an accessory to his employer's breach of workplace legislation and personally fined $3750.


• Current Prosecutions:

• Accountancy firm in Melbourne is facing $54,000 fine for processing wage payments for workers at a fast food restaurant below the Award rate.

• The Director, restaurant manager and HR manager of a Chinese restaurant chain are facing penalties of up to $54,000 for underpaying workers.

• Directors of 7-Eleven retail group are under investigation for wide ranging under-payments and record-keeping breaches across its national franchise network. Possible total underpayments in excess of $120,000,000.

• Directors of Yogurberry head company are facing penalties of up to $54,000 each for wide range of compliance failures throughout its supply chain.

28/11/2016

13

Steps to Take to Protect You & Your Clients

• Be clear about whether you provide HR-related advice or support

• Don’t deviate from your letters of engagement with your clients

• Only ever obtain advice from qualified experts in Australian employment law

• Only ever ask for – and only accept – advice in writing• Always double check the numbers you’re calling and the

websites you’re visiting

28/11/2016

14

Q&A

A Workforce Guardian Presentation

© 2016

All information is general advice and does not constitute legal advice.

Information correct at time of delivery.

28/11/2016

15

what every hr manager, accountant, bookkeeper and business ... · 28/11/2016 1 avoiding personal...

Documents