Accessory to breach of Fair Work Act 2009 ordered to pay compensation

A decision handed down by the Federal Circuit Court on 7 May 2015 has confirmed that an accessory to a contravention of the Fair Work Act 2009 may be ordered to pay compensation in addition to an order for a penalty.  The decision was made by Jarrett J in the matter of Sponza v Coal Face Resources Pty Ltd & Anor [2015] FCCA 1140.   These proceedings were brought by Ms Samantha Sponza against her former employer (the first respondent) and the sole director and secretary of the first respondent (second respondent).  Having found that the first respondent had contravened the Fair Work Act 2009 (FWA) in not paying Ms Sponza her wages and not paying for her entitlement to personal/carer’s leave and annual leave and engaged in adverse action against her, His Honour ordered that the respondents jointly and severally pay compensation to Ms Sponza and that both respondents also pay significant penalties.  This decision is significant as it resolves the issue of whether or not such an order may be made when there has been a contravention of the FWA.  Whereas the previous legislation did not permit an order for compensation to be made against an accessory and the Explanatory Memorandum for the FWA indicated it would not be possible, this decision confirms that an order for compensation may, in fact, be made where an accessory is held personally liable for a contravention of the FWA.  Jarrett J held that the Explanatory Memorandum is not consistent with a plain reading of s.545 of the FWA.