WHO CAN BE HELD RESPONSIBLE FOR WAGE UNDERPAYMENTS IN 2020?
ACCESSORIAL LIABILITY AND THE FAIR WORK ACT
AN UPDATED PAPER PREPARED FOR PRESENTATION AT A UTS SHORT COURSE TITLED EMPLOYMENT LAW: DEALING WITH SENIOR EXECUTIVES
11 MARCH 2020
EMPLOYER HAS UNDERPAID – WHO ELSE CAN BE HELD RESPONSIBLE?
1. The Fair Work Act 2009 (Cth) imposes on national system employers2 various obligations, including to pay most employees at least the minimum amounts required by a relevant modern award (s45) or an applicable enterprise agreement (s50).
2. A proven failure to make such a payment provides the basis for a Court3 to impose a civil penalty on the employer: see Part 4-1. Such a contravention is regarded as “quasi-criminal”.4 It is a strict liability provision: the applicant for such an order5 does not need to prove the employer intended to underpay the employee. The Court can also order that the employer compensate those affected by the contravention, typically by requiring payment of the underpayments plus interest.6