Business advisers in firing line

In a step which serves as a warning to all professional advisers, the Fair Work Ombudsman (Ombudsman) has issued proceedings against an accountant for knowingly being involved in its client’s contraventions of the Fair Work Act 2009 (Act).

On 9 December 2015 the Ombudsman commenced proceedings in the Federal Circuit Court against Blue Impression Pty Ltd (Blue Impression) and Ezy Accounting 123 Pty Ltd (Ezy Accounting) as a result of the alleged underpayment of two Taiwanese employees employed by Blue Impression on 417 working holiday visas.

It is claimed that the workers were underpaid a total of $9,549 between September 2014 and April 2015, being paid at rates of pay which were not sufficient to offset the penalty rates and loadings payable under the Fast Food Industry Award 2010.

As stated in the Fair Work Ombudsman Media Release, Ezy Accounting allegedly ‘processed wage payments for two workers knowing they were being paid well below the lawful minimum.’ The Ombudsman claims Ezy Accounting was aware of the correct minimum rates as it had assisted Blue Impression to respond to an audit by the Ombudsman as part of its National Hospitality Campaign.

Under the Act, a person who is involved in a contravention of a civil remedy provision of the Act will be taken to have contravened that provision. A person will be involved in a contravention of a civil remedy provision if, and only if, the person:

• has aided, abetted, counselled or procured the contravention;
• has induced the contravention whether by threats, promises or otherwise;
• has been in any way, by act or omission, directly or indirectly, knowingly concerned in or a party to a contravention; or
• has conspired with others to effect the contravention.

To date, the majority of prosecutions under the Act have involved company directors who have been responsible for decision-making and HR professionals who, by virtue of their positions, were responsible for compliance with workplace laws.

Ezy Accounting and Blue Impression face penalties under the Act of up to $51,000 per breach of the Act. Blue Impression Operations Manager Sze Tong Wong faces a penalty of up to $10,800 per breach for her involvement in the contraventions.

The Ombudsman has made her agenda clear in the media release, ‘in situations where we believe accountants or other professionals knowingly facilitate contraventions of workplace laws, we are prepared to hold them to account.’