Construction, Forestry, Maritime, Mining and Energy Union v Asbestos Removalist Pty Ltd & Anor

The Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) commenced proceedings in the Federal Circuit Court of Australia against Asbestos Removalist Pty Ltd (the First Respondent) and Tiziano Bettinsoli (the Second Respondent). The Applicant alleged that the First Respondent, the employer of three named employees, had contravened various provisions of two enterprise agreements and the *Fair Work Act 2009* (Cth). The Second Respondent was joined as an alleged accessory to these contraventions. The First Respondent admitted the alleged contraventions, except for superannuation claims which were later conceded. The Second Respondent denied all liability. The First Respondent was placed into liquidation prior to the hearing, and the Applicant sought no orders against it at that time.

The Court was required to determine whether the Second Respondent was liable as an accessory to the First Respondent's contraventions of the enterprise agreements and the *Fair Work Act*. Specifically, the Court needed to consider the application of section 550 of the *Fair Work Act*, which treats a person involved in a contravention as having contravened the provision themselves. This involved assessing the nature and extent of the knowledge the Second Respondent possessed regarding the First Respondent's conduct and the relevant industrial instruments.

The Court applied the principles of accessorial liability under section 550 of the *Fair Work Act*, drawing on authorities such as *EZY Accounting 123 Pty Ltd v Fair Work Ombudsman* and *Australian Building and Construction Commissioner v Parker*. The Court noted that to establish accessory liability, a person must be an intentional participant with actual knowledge of the essential facts constituting the contravention, though they need not know that their conduct amounts to a contravention. The Court found that the Second Respondent had actual knowledge of the essential matters that constituted the contraventions, and that this knowledge was sufficient to establish his involvement under section 550(2)(c) of the Act, even if he did not appreciate that the conduct was unlawful. The Court accepted the Applicant's calculations of underpayments as accurate, subject to statutory limitations.

The Court made declarations that the First Respondent had contravened the relevant enterprise agreements and the *Fair Work Act*. The proceedings were adjourned for a penalty hearing to be scheduled at a later date.