The Fair Work Ombudsman has recently released a statement confirming that it has commenced legal action against a Victorian accounting firm for its role in underpaying Taiwanese backpackers.
The accounting firm provided payroll services to a fast food business and it is alleged that the accounting firm processed wage payments for the Taiwanese workers despite them being aware that the workers were being paid below the relevant minimum wage in the Fast Food Industry Award 2010. The fast food business and its Operations Manager are also facing legal action.
The fast food business was audited in 2014 by the FWO and was put on notice after it was found to have underpaid 12 employees. During the audit, the accounting firm were informed of the relevant minimum award rates as the firm had been engaged to calculate and resolve the underpayments identified at the time.
The allegation that the accounting firm knew of the appropriate rates and still assisted the fast food business breach its workplace obligations by processing wages below the required minimum wage has led to the FWO taking action:
In a statement by Fair Work Ombudsman Natalie James, she noted the FWO’s growing interest in business advisers and their roles in contraventions of workplace law:
“We have been concerned about the role of key advisers, such as accountants and HR professionals, in some serious and deliberate contraventions… Small business relies heavily on trusted advisers, and if they give incorrect or bad advice, or deliberately assist with the contravention, should they not be held accountable? In situations where we believe accountants or other professionals knowingly facilitate contraventions of workplace laws, we are prepared to hold them to account.”
Lessons for employers and advisers
This case emphasises the importance of getting correct and well informed advice. Employment law (and particularly the Fair Work Act 2009) can be a complex area of the law, and employers should seek the advice of advisers who specialise in dealing with that legislation. Advisers who incorrectly advise or facilitate contraventions of such laws may be pursued by relevant authorities including the FWO.
Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only. Liability limited by a scheme approved under professional standards legislation.