Right now, workplace relations laws in Australia allow employers and employees to make individual agreements known as Australian Workplace Agreements, or “AWAs”. The law prohibits an employer from coercing or applying duress to an employee to enter into an AWA, and the government’s Workplace Inspectors are cracking down on employers who force their employees to sign AWAs.
In a recent decision, the Federal Magistrates Court found a Tasmanian tavern applied unlawful duress to an employee to sign an AWA in order to avoid obligations under the Award. The tavern removed the employee’s regular shifts and told her that she wouldn’t be employed if she didn’t sign the AWA. Staff were threatened that if they didn’t sign the AWA, the tavern would be run like a concentration camp and no benefits such as drinks, cheaper meals and smoko breaks would be provided to the employees. The tavern was hit with a penalty of AU$24,750. The part-owner and manager also received penalties of AU$4,950 and AU$1,980.
This decision followed a Federal Court finding that another Tasmanian tavern had coerced employees into signing AWAs. In this case the tavern was fined AU$170,000 in respect of 10 contraventions.
What factors will be considered in determining whether an employee has been forced to sign an AWA and the amount of any penalty?
- the serious and offensive nature of the conduct;
- a lack of contrition;
- the strain on the employee, particularly given their age, sex, position, reliance on income and employment status; and
- the need for general deterrence and the protection of young people.
Managers need to be aware of their duties and obligations under the law as the penalties don’t stop with the employer.
