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Excerpt from this article first published in Human Resources Magazine, Issue 141 - 13 November
2007
The Federal Court of Australia recently found that a Hobart hotel group applied unlawful duress in a bid to force several of its casual employees to sign AWAs.
The Court found that the company did not explain the AWAs to any of the employees. The AWA cut the pay rates of the employees, provided that the ordinary hours of work would be on any day of the week and only provided for public holiday penalty rates on two public holidays.
The Court found that a casual bartender had worked for the hotel group for 8.5 years on a regular shift pattern on Monday to Friday. The regular shift pattern took into account that the casual bartender was a single parent and her finishing times were set to allow her to pick up her daughter from school. The hotel group offered her an AWA that paid less than her current rate of pay. The casual bartender refused to sign the AWA. After the refusal, the manager told her that “Anyone that doesn’t sign it [the AWA] will get their hours cut”. The hotel group then rostered the casual bartender on for less hours than usual and at times that she could not work as she had to look after her child. The Court found that the manager had placed illegitimate pressure on the worker to sign the AWA as he knew that she would feel she had no choice but to sign the AWA to obtain shifts that would suit her family arrangements. The Court found that the hotel group had taken the same actions to reduce other employee’s shifts when they refused to sign the AWA and threatened other employees that if they did not sign the AWA they would be rostered on less shifts.
The Court found that the actions of the manager had placed illegitimate pressure on the employees to sign the AWA and that the hotel group was liable for the breaches. The Court imposed fines of $17,000 for each contravention of the Workplace Relations Act 1996. The total fine amounted to $170,000.
This case shows that employers must be cautious in their negotiations with employees about the implementation of AWAs.
Jessica Lee - Lawyer
Australian Business Lawyers
