Case: Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435
Outcome: applied
The Full Court in Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186 ('the Schanka appeal') at [24] said: 'what appears to be the policy underlying Pt VID [of the Act is] that AWAs should be negotiated and concluded openly and freely at arm's length without outside interference and without either party being deceived or misled'. This policy included an intention to prevent employers, in an attempt to induce entry into an AWA containing particular terms, from applying pressure which, in the circumstances, is illegitimate: ibid at [23]. A similar view of the legislative policy was adopted by Ryan J in Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435 (' Burnie Port '). His Honour observed (at [66]): 'There is discernible in many provisions of the WR Act, including s 170WG, a policy that wages and working conditions are to be determined by a process of bargaining at arm's length using weapons, including protected industrial action, which the legislation impliedly regards as fair, but without resort to proscribed tactics or techniques which are to be characterised as unfair.' 23 The existence of any prior relationship between the party allegedly applying duress and the party subject to it may be significant. As Ryan J observed in Burnie Port at [71]-[72]: 'This is not a case in which those alleged to have been subjected to duress were in any relationship with the Corporation, other than that of applicants for vacant positions. If such a relationship, from pre-existing employment or otherwise, had existed, it would have been relevant to examine the circumstances of the employer's conduct to determine whether there were features which rendered illegitimate or unconscionable a threat or inducement offered to procure entry into an AWA and thereby amounted to duress . The terms of the proposed AWA in relation to those available to the rest of the employer's workforce and the relevant labour market as a whole will also have a bearing on this question of duress. In the present case, the Corporation has sought to compel prospective employees to enter into AWAs which are not markedly disadvantageous in their terms. Having regard to those considerations, what is left of the alleged duress in the present case is that entry into the AWAs was made a condition of appointment to vacancies in circumstances where the prevailing scarcity of employment made it more likely that the condition would be accepted by those interviewed. I have been unable to discern any positive conduct by the Corporation beyond its decision to offer employment under the AWAs, albeit with some knowledge of that circumstance. This, I consider, does not amount to illegitimate pressure of the kind needed to establish duress under s 170WG.' (emphasis added) 28 Having regard to the decision of Ryan J in Burnie Port the applicant conceded that, without more, offering a non-employee a position conditional upon entering into an AWA is probably not duress. However, the applicant relied on the qualifying remarks of Ryan J at [62]: '...merely informing interviewees for positions that the successful candidate must enter into an AWA as a condition of engagement is not "duress" for the purposes of the section, but presence or absence of duress will depend upon the particular circumstances: see Geraldton (at pars 396-399), and Schanka (at pars 21-22).' 29 The applicant submitted that the relevant 'particular circumstances' of this case involved the applicant's being threatened with the loss of, and ultimately denied, the opportunities associated with performance of the Site Supervisor position duties and the higher remuneration (submitted to be approximately an extra $2.18 per hour, or a 15.8 percent difference) for that position: denying the applicant access to a promotion for the sole reason that he declined to enter an AWA, in circumstances where he was acting in the position with 'excellent' performance and earning the higher wages attached to the position, amounted to duress. As a consequence of refusing to enter into an AWA, the opportunity of future promotion in other representative roles was also closed off to the applicant. The applicant felt threatened. The threat was simple: if he did not sign the AWA, he would be denied the position. As a result, the applicant's freedom of negotiation was removed. The applicant contended that the subsequent reiteration of this same proposal after the initial offer constituted multiple breaches of s 170WG(1). 30 The applicant submitted that the concept of duress addressed by the Act and s 170WG differs from that which would apply in other contexts. 31 In essence, the applicant submitted that, while there is no case directly on point, Mr Bishop's case was more analogous with the transferring ENA workers in Schanka or the bus drivers in Canturi than that of the non-employees offered new employment on an AWA in Burnie Port . By analogy with the Schanka litigation, the applicant submitted that a breach of s 170WG occurs when an employer makes the signing of an AWA the condition upon which existing employment is retained and continued. While the Schanka cases concerned continuation of employment, the applicant submitted, in effect, that the present set of circumstances concern the practical continuation of promotion. Given this similarity, the applicant argued that the present case should be governed by the same principles. 43 The policy underpinning the legislation is relevant in the present context. The object of the legislation is not to prevent any pressure being felt by the employee. The result in Burnie Port , given the extreme paucity of jobs and the dire economic environment locally, highlights this. Rather, the provisions seem to be intended to create a situation whereby entry (or the refusal of entry) into an AWA is determined by the authentic strength of the parties in the market. The legislation is not concerned with saving an individual from his or her poor economic position: it is a question of ensuring that the other party does not exacerbate that position and thereby distort labour market forces. 44 There is no doubt that, in this case, the proposed elevation to the position of Site Supervisor was a genuinely promotional position. There is no case directly in point. While there are factors that support an interpretation in favour of the applicant, there are also factors that suggest that duress was not applied. Factors that suggest duress was applied &#8226; There was, as matters were presented to the applicant, a difference in the rate of pay between the Site Supervisor and Groundsman roles that stemmed from the application and availability of the higher duties allowance. &#8226; It was common ground that the applicant wanted the Site Supervisor position at the ADC Weston site and that the respondent was aware of this desire. &#8226; The applicant said that when he told Landscape Direct representatives that he did not believe in AWAs, he was referring to concerns that he had about AWAs at a general and a specific level . &#8226; At a general level, the applicant explained in evidence his support for the trade union movement; he took the view that AWAs served to reduce that power, and ultimately, remove power from workers collectively to influence the conditions under which they are employed. While the applicant did not provide this or any other explanation for the position he took on AWAs to the respondent, no enquiry was made by Landscape Direct as to the precise nature of his objection to AWAs in principle. &#8226; When the applicant commenced employment with Landscape Direct, he was aware that his position was covered by an award, and this factor was of some importance to him. &#8226; At the specific level, the form of the proposed AWA presented to him appeared to indicate less pay than he had been receiving in an acting capacity. &#8226; The applicant said that feelings of intimidation and nervousness, and a desire not to upset his employer prevented him from giving any detailed explanation of his objection to AWAs. The applicant explained that Mr Trethewey made him nervous, and that he hesitated before telling Mr Trethewey that he did not believe in AWAs because of that nervousness and a desire to avoid confrontation. &#8226; As Burnie Port and Canturi make clear, the existence of a prior relationship may influence an assessment of whether duress has been applied in connection with an AWA. The question then becomes: given that the applicant and the respondent had a substantial prior relationship, did this relevantly affect the process of permanently filling the Site Supervisor's position at the ADC Weston site? One factor that may suggest that duress has been applied is the disappointment of a legitimate expectation if an employee does not sign an AWA. Arguably, an expectation of permanent promotion was initially generated in the applicant's mind from his acting appointment to the higher position. While the applicant understood that he was only acting in the Site Supervisor position, he had the impression that his role as Site Supervisor would be permanent arrangement, subject to a trial period. It is certainly clear that his performance in the acting position was considered to be excellent, and that what intervened to prevent the applicant's ascension to permanency was the refusal to sign an AWA. &#8226; The company had a preference to fill higher level jobs by internal promotion, where it could. There had been some practice of internal promotions. In that context, and with the vacancy in question having occurred before the announcement of the AWA policy, it is said that the applicant had a reasonable expectation that if he performed well he would get the job on a permanent basis. That expectation having already arisen, for the respondent to inject the further proposition that the applicant would only get the position if he entered an AWA might be considered unfair. &#8226; It is possible to interpret this background as evidence of a settled arrangement for the applicant to have the position permanently if he performed his work in the trial period in a satisfactory manner. Following the expiration of a reasonable trial period, the applicant's freedom of choice about entering into the AWA was not the same as that of somebody coming to employment with the respondent for the first time. 62 Thus, merely to remind an employee of his or her weak economic position or of the economic consequences of not entering into an AWA is, of itself, unlikely to constitute the application of duress. Advocacy of a projected contract such as an AWA may produce a sensation of pressure in the person to whom it is directed, but duress requires something more. In my view, the added component appears when something is done, threatened or proposed which would alter the operation of market forces adversely to the person subjected to the act, threat or proposal if the offered AWA is not accepted. Thus, in the Canturi case, the consequence for the bus drivers was to make their work much less congenial. They were punished for their stance. By contrast, in Burnie Port , despite the bleak employment climate in the district, there was no diminution or threat of diminution of the position of the offerees if they did not accept the AWA offered.