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Excerpt from this article first published in Human Resources Magazine, Issue 133 - 24 July 2007
In a successful prosecution by the Office of Workplace Services (“OWS”), a Hobart hotel was found to have applied unlawful duress in a bid to force a casual waitress to sign an AWA.
The Court found that a manager of the hotel threatened to run the hotel like a “concentration camp” and that he said that he would deny benefits such as drinks, cheaper meals and smoko breaks if the employees, including the casual waitress, insisted on staying on the award.
The OWS brought evidence that the casual waitress had commenced employment in February 2005 and was regularly rostered to work three to four shifts during the week and also on weekends. After refusing to sign the proposed AWA in August 2006, the hotel immediately withdrew the casual waitress' weekend shifts and reduced her hours.
In addition, during the investigation by the OWS the employer told its employees, including the casual waitress (who had never signed the AWA offered), that they would have to re-sign their AWAs due to compliance problems and also sign a form releasing the employer for non-compliance with the relevant award.
The Federal Magistrates Court ("the Court") found that the hotel had applied unlawful duress in its bids to get the casual waitress to sign the AWA.
In considering the conduct of the hotel management the Court found that while much of the conduct was not necessarily unlawful, taken as a whole the conduct crossed the boundary from ordinary pressures of negotiation into unlawful duress. The Court also found the threats to run the hotel like a concentration camp and the requirement for the employees to sign a form releasing the employer from liability were wholly inappropriate.
The Court found that the relative youth of the casual waitress compared to authority and age of the manager, the intensity of her manager’s attentions towards the casual waitress in numerous and lengthy conversations he had with her were also relevant considerations in finding that unlawful duress had occurred.
A separate hearing will be held to determine the appropriate penalty against the hotel.
This case shows that employers must be cautious in their negotiations with employees about the implementation of AWAs.
Jessica Lee
Lawyer
