Ombudsman — action and spotlight


Ombudsman — action and spotlight

Company allegedly applied duress to workers; Fair Work Ombudsman and approach to small business.


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Company allegedly applied duress to workers; Fair Work Ombudsman and approach to small business. 

Company allegedly applied duress to workers
The Fair Work Ombudsman has launched a prosecution against a national company, alleging it applied duress to employees based near Newcastle to get them to sign workplace agreements.

Facing court are Toyota Material Handling (NSW) Pty Ltd, company manager Peter Wilson and former manager Paul Hughes.

Documents lodged in the Federal Magistrates Court in Sydney allege the company applied duress to four workers it employed to work as service technicians at an aluminium smelter in Kurri Kurri, just west of Newcastle.

It is alleged that Mr Wilson, on behalf of Toyota Material Handling (NSW), pressured the employees to sign a workplace agreement in May, 2009 by telling them they would be rostered off their continuous shift work positions if they did not sign. The workers signed.

One of the workers allegedly also had duress applied to him on a previous occasion.

It is alleged Mr Hughes, on behalf of Toyota Material Handling (NSW), indicated to the worker in March, 2006 that he would lose his job if he did not sign a workplace agreement offered to him. He signed.

Toyota Material Handling (NSW) allegedly also breached laws relating to required procedures for executing workplace agreements, including allowing employees seven days to consider agreements and providing information statements.

Fair Work Ombudsman Nicholas Wilson says the decision to prosecute was made because it is important to ensure employers negotiate lawfully with employees in an environment free of duress and illegitimate pressure.

Toyota Material Handling (NSW) was allegedly involved in multiple breaches of workplace laws. The company faces maximum penalties of $33,000 per breach.

Mr Wilson and Mr Hughes allegedly each committed one breach of workplace laws. They each face maximum penalties of $6600.

Fair Work Ombudsman and approach to small business
Meanwhile, in a recent decision by the Federal Magistrates Court, the Fair Work Ombudsman has been criticised for a sometimes unsympathetic approach to small business.

The court noted:
‘Taking into account the issues of punishment, deterrence and rehabilitation I have formed the view that this breach was not the result of any deliberate, wilful or premeditated action … but rather a result of a small businessman struggling with the management and administration of his business venture combined with a limited educational background and the apparent ignorance of the provisions of the Fair Work Act and has not offered any information or advice on how he could comply.

Within the last five years there had been very significant changes in the philosophy and direction of Industrial Law. This breach took place within 1 month of the introduction of the Fair Work Act. Many large well resourced organisations have breached provisions of the Act since its introduction so it is not surprising that a small, under resourced owner-operator business is not fully conversant with the provisions of the Fair Work Act …

Having regard to the forgoing principles, I consider that the appropriate penalty for the breach of s.712 by Ballina Island Resort Pty Ltd be $500.00 …’
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