SECURITY
for a decade now. Section 550 is a standard, ‘bread
and butter’ accessorial liability provision. There
are similar clauses throughout the statute books,
including occupational health and safety law, as well as
corporations, competition and consumer legislation.
“We’re increasingly using this mechanism to ensure
that someone is held to account when we find
deliberate exploitation of vulnerable workers. We do
this to reinforce the critical roles and responsibilities
of the key personnel involved in the breach—whether
they are company directors or advisers.
“There is strong public interest in ensuring that such
people inform themselves of the law, and to operate
within it. And we will explore every avenue available
to us to ensure that exploited workers receive the
wages that they are entitled to.
“The accessorial liability provisions are especially
important if we think a company might not continue
to solvently operate when we commence proceedings
against it. By naming accessories, we can still seek to
recoup back-payments and penalties from individuals
involved in the breach irrespective of whether the
corporate employer is still operative, or has money in
the bank.
“In fact, last financial year, 46 out of 50 of the
matters we filed in court (92%) sought orders against
accessories. This is up from the year before. In
2014-15, 36 out of 50 litigations commenced (72%)
involved an alleged accessory.”
The Fair Work Ombudsman has been very active in
auditing security employers to ensure that they comply
with their workplace obligations.
So, if you’re choosing a security provider offering the
lowest price without conducting the appropriate due
diligence, you may become an accessory to a breach of
Section 550 of the Fair Work Act 2009, which can expose
you personally and your organisation to hefty financial
penalties.
In other words by turning a blind eye to your security
provider’s questionable practices you could expose
both your organisation and yourself to significant risk.
In a recent editorial contribution to ASIAL’s bi-monthly
magazine, Security Insider, Fair Work Ombudsman Natalie
James explained the long arm of accessorial liability.
“We know that an employer is clearly responsible for
making sure workers are paid correctly. But where does
the responsibility for compliance with the law begin and
end? The law also extends responsibility to others who
are involved in a contravention. It does this through
section 550 of the Fair Work Act,” Ms James explained.
“Provisions extending liability for contraventions of
the law to people ‘involved’ in the relevant conduct
have been a feature of workplace relations legislation
And don’t go thinking this only applies to private
companies, because ASIAL and FWO have been
working on a Local Government Procurement Initiative
since 2014, aiming to shift the focus from price to
performance.
The initiative started with an education campaign
with a simple message: individuals involved in the
procurement of services at prices that can only
be supported by the payment of below-award
wages could be found to be personally liable for
contraventions of the Act and the modern award.
There was then a top down compliance program,
which involved randomly auditing metropolitan
and regional councils across Australia to ensure
local government procurement decisions are not
undermining compliance with federal workplace laws.
“In time, we hope that our work with FWO on this
issue will extend to other levels of government and
business in general” Mr de Caires said.
“ASIAL is committed to working with all Government
agencies to develop fair and transparent guidelines
that will produce confidence throughout the supply
chain resulting in a more professional private security
industry.”
GOVLINK » ISSUE 3 2016
37