Manipulating shifts - AWA duress found

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Manipulating shifts - AWA duress found

An employer who refused weekend work to a casual employee who declined to sign an AWA was found guilty of duress.

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An employer who refused weekend work to a casual employee who declined to sign an AWA was found guilty of duress.

Conclusions drawn

Federal Magistrate Burchardt noted that matters that were relevant to this conclusion were:

  • 'the fact that Ms Wills, albeit that she was a casual employee, did have what was plainly a regular pattern of employment with the Granada Tavern which all parties knew she wished to continue
  • the fact that notwithstanding the above first point, Ms Wills's position was well known by all concerned to be that of a casual employee with no security of employment
  • the relative youth of Ms Wills compared to the far more powerful position of authority and age reposed in Mr Hibberd
  • the altering of Ms Wills' prior pattern of employment which I find, while consistent with a policy of not employing award employees on the weekends, was not in fact occasioned by that reason but rather by a desire to bring pressure to bear on Ms Wills
  • the fact that no other employee was subject to the same treatment as Ms Wills ...
  • the fact that Ms Wills was perceived by [managers] Mr Hibberd and Ms Berechree to be a ringleader of opposition to the AWAs
  • the fact that Mr Hibberd was plainly extremely eager to have all employees sign up to AWAs at least in part because of the impending possible underpayment claims
  • the intensity of Mr Hibberd's attentions to Ms Wills, as expressed in the numerous and lengthy conversations he had with her, which I think went further than ordinary negotiation
  • the totally inappropriate use of phraseology [by management], referring to the Granada Tavern being run as a concentration camp [for award employees] at the meeting on 27 August 2006.'

A penalty against the hotel would be decided at a separate hearing.

Smith v Granada Tavern & Ors (No. 2) [2007] FMCA 904 (19 June 2007)

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