"Is this right… should I be doing this?" HR managers and others may have had this thought cross their minds while implementing employer decisions and policies or managing grievances and disputes with employees. After all, the HR manager is only doing their job or carrying out orders. And in any case, the employer will be the only one on the hook for any liability arising from the matter… or will it?
This was the topic for discussion at briefings for HR personnel this week, delivered by members of our Workplace Relations & Safety team in Melbourne and Sydney. During the briefing, Partner, Mark Diserio, advised corporate HR personnel that, "The scope for being found liable for a breach of the Fair Work Act is much wider than you may realise, and can potentially result in HR managers and others having civil penalty orders being made against them personally."
According to Mark, the best way to ensure compliance is to audit your organisation against its compliance responsibilities, "If there's a problem, best it be discovered by you rather than being brought to light by a union or regulator," he said.
Partner, Neil Napper, agreed commenting that ignorance of the law or claiming that you were just following orders is not a defence. "If you're being directed to do something that you have concerns about or know is not right and you let it go, you're putting yourself at risk," he said. "If you find yourself in this situation, don't just voice your concerns, ensure that you put them in an email to the person responsible for the direction, showing that you disagree."
Neil noted that underpayment of employees tended to be the largest area where our team sees action being taken by the regulator and where the accessorial liability provisions are commonly brought into use. Other areas covered by the Fair Work Act where accessorial liability applies, and where the team are seeing more activity by both the regulator and plaintiff lawyers include sham arrangements, adverse action and discrimination, breaches of the NES and other Fair Work Act provisions.
"You don't have to be a company officer or have any managerial responsibility, as the accessorial liability provisions in the Fair Work Act are broad," said Mark. "However the news is not all bad. Unlike with strict liability, where you've either done it or you haven't, accessorial liability is less black and white and offers some scope for legal assistance and possible defences for those who find themselves in this situation."