'Sign AWA or no promotion' OK says Federal Court

Cases

'Sign AWA or no promotion' OK says Federal Court

The Federal Court has supported an employer's position in making the granting of a promotion conditional on the signing of an AWA by an employee.

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The Federal Court has supported an employer's position in making the granting of a promotion conditional on the signing of an AWA by an employee. The court found that this did not amount to duress.

Background

Justice Madgwick heard an application by Arne Bishop who was working as a landscape gardener. His employer approached him and asked if he would like to fill in as a site supervisor. The employer had notified to its staff, including the applicant, its policy that appointments to promotional positions would only be made upon the appointee entering into an AWA.

Duress not substantiated

Justice Madgwick found that the evidence may have established that some pressure was placed on the employee to sign the AWA but this did not necessarily amount to duress. His Honour noted:

'In the present case, as to the 'acting' arrangements, the applicant and the respondent are to be taken to have agreed to vary their initial contract whereby the applicant had served simply as a Groundsman.

Under the contract as varied, he agreed to perform work in a 'higher', that is, better-paid and more highly or broadly skilled and responsible, capacity on a temporary basis until such time as a decision should be made by the respondent as to the permanent arrangements for the performance of that work.

There was no suggestion that any award provision impeded such a revised, temporary, contractual arrangement.

[contractual rights not impeded]



As a matter of legal right, all that the applicant had was what the contractual arrangements afforded him, and there was no suggestion that the respondent had applied any pressure that might have impaired or restricted the applicant's enjoyment of such contractual rights as he had.

The absence of any firm, express or implied representation to him as to his future and permanent (in the sense of indefinitely continuing) employment at the higher level, makes it difficult to suggest that the respondent's change of policy about AWAs carried with it the application of any pressure on the applicant.

[whether pressure applied]

For a person to be constrained or influenced by economic or other circumstances that it is fair to see as pressure does not necessarily imply that some other person has applied that pressure.

Many a would-be employee who is of markedly less bargaining strength than the employer 'offered' a job on condition of acceptance of an AWA may well be regarded, as a matter of ordinary language and reality, as having the AWA imposed on him or her. In such a case the employee is under pressure in connection with the AWA, but it is not the employer who has applied it.

[no duress]

There is therefore no question of the employer having 'applied duress' to the employee. If a person does not 'apply' pressure in connection with an AWA, that person cannot have 'applied duress' within the meaning of s 170WG(1) of the Act. …'

Bishop v Ropolo Services Pty Ltd [2006] FCA 592 -19 May 2006

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