Liability for underpayments

Authored by the LexisNexis Legal Writer team.

Liability under the Fair Work Act 2009 (Cth)

Primary liability

If an employer fails to keep records or provide pay slips as required under ss 535–536 of the Fair Work Act 2009 (Cth) (FW Act) (and Pt 3.07 of the Fair Work Regulations 2009 (Cth) (FW Regulations)) without reasonable excuse, a reverse onus of proof applies in relation to certain contraventions: s 557C, FW Act.

Those contraventions include: ss 44 (National Employment Standards (NES)), 45 (awards), 50 (enterprise agreements), 280 (workplace determinations), 305 (equal remuneration orders), 323(1) and (3) (methods and frequency of payment) and 325(1) (unreasonable spend or pay amounts) of the FW Act.

In respect of those contraventions, liability will be accepted by the court unless the employer is able to prove otherwise.

See Guidance Notes: What measures are available to enforce the provisions of the federal workplace relations laws? and Record-keeping obligations of employers.

Accessorial liability

Liability for contravention of a civil liability provision will attach to the person who instigated the breach as well as anyone “involved” in the breach.

Involvement in a contravention means (s 550):

• aiding, abetting, counselling or procuring the contravention;

• inducing the contravention, whether by threats or promises or otherwise;

• being in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or