Fair Work Ombudsman v Lovely Care Pty Ltd

The Fair Work Ombudsman (FWO) brought proceedings against Lovely Care Pty Ltd and its sole director, Ms. Eleni Koutsoukis, alleging contraventions of the Fair Work Act 2009 (Cth) and the National Employment Standards. The dispute concerned the underpayment of employees by Lovely Care, with the FWO seeking to hold Ms. Koutsoukis personally liable as an accessory to these contraventions. The matter was heard by Judge Cameron in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether Ms. Koutsoukis could be held liable as an accessory to Lovely Care's contraventions, specifically concerning the underpayment of employees. This required the Court to consider the circumstances under which a director could be found to have aided, abetted, counselled, or procured the contravention by the corporate employer, and whether ignorance of the relevant award provisions constituted a defence to such accessory liability.

Judge Cameron found that ignorance of the applicable award provisions could indeed serve as a defence to an allegation of accessory liability for breaches of that award. The Court determined that the FWO had not discharged its onus of proving that Ms. Koutsoukis had the requisite knowledge or intent to be considered an accessory to the contraventions. Consequently, Ms. Koutsoukis was not found liable for the underpayments made by Lovely Care.