Making Sense of the Compensation Remedy in Cases of Accessorial Liability under the Fair Work Act

By Anderson, Helen; Howe, John | Melbourne University Law Review, August 2012 | Go to article overview

Making Sense of the Compensation Remedy in Cases of Accessorial Liability under the Fair Work Act


Anderson, Helen, Howe, John, Melbourne University Law Review


[The Fair Work Act 2009 (Cth) substantially reorganised and altered the law relating to civil penalty provisions as it existed in the Workplace Relations Act 1996 (Cth). However, there is uncertainty as to the availability of the compensation remedy against persons involved as accessories in a civil remedy breach by a corporate employer. Clarification of the availability of this remedy is important for employees seeking recovery of unpaid wages, reducing reliance on the taxpayer-funded safety net scheme. It should also act as an effective deterrent against directors 'phoenixing' companies deliberately to escape payment of accrued entitlements. Existing penalties, even if paid to the employees, are generally smaller than the amount of unpaid entitlements and therefore less effective either as deterrents or as compensation.]

CONTENTS

  I Introduction
 II Justifications for an Award of Compensation
III The Development of Remedy Provisions under Federal Labour
    Legislation
 IV Specific Actions under the Workplace Relations Act
      A Breaches of Awards and Agreements
      B Unlawful Termination
      C Freedom of Association
  V Compensation and Accessorial Liability under the Fair Work Act
 VI Commentary
VII Conclusion

I INTRODUCTION

This article seeks to make sense of the rights of applicants to seek compensation from corporate employers (1) and other parties, usually company directors, named in actions for breaches of the Fair Work Act 2009 (Cth) ('FW Act'). The FW Act provides that courts with jurisdiction have the power to 'make any order the court considers appropriate' in relation to the breach of a civil remedy provision under the Act, (2) including orders 'awarding compensation for loss that a person has suffered' because of that breach. (3) We argue that where there is a sufficient degree of involvement, directors can be considered accessories to their company's breach of the Act and ought therefore to be liable to pay compensation to the company's employees.

Given that many contraventions of working conditions are breaches of civil remedy provisions, including breaches of awards, enterprise agreements and a national minimum wage order, the FW Act provisions significantly broaden the availability of compensation when compared to previous federal labour legislation. For example, the legislation that the FW Act replaced, the Workplace Relations Act 1996 (Cth) ('WR Act'), contained no provision that allowed recovery of damages or compensation for breach of an award or collective enterprise agreement, although in practice it was possible to seek recovery of wage underpayments. While the WR Act did allow for compensation to be sought in relation to other types of contravention, such as breaches of provisions protecting freedom of association and prohibiting unlawful termination, these remedy provisions were scattered throughout the legislation in an ad hoc manner. The FW Act has maintained the availability of compensation as a remedy in relation to these breaches, and extended it to a range of other contraventions where loss has been suffered as a result of the breach in question. This extension is the basis of our argument that directors, as accessories, are now within the reach of a compensation order.

The FW Act provides that the parties against whom compensation may be sought include, in the case of corporate employers, the employer company's directors or officers where they are found to be 'a person who is involved' in civil remedy breaches of the Act by the company, (4) as well as others who may be required by particular provisions to remedy the breach. The right to pursue a party other than the employer company under this provision for accessorial liability is particularly important in the insolvency context because proceedings against a company in liquidation are stayed, (5) and in the absence of another party to sue, no penalty or remedy will be forthcoming. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Making Sense of the Compensation Remedy in Cases of Accessorial Liability under the Fair Work Act
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.