[A somewhat misleading header - Trudy]
Australian Financial Review
September 29, 1999
Boost for Howard in decision on AWAs
By Stephen Long
The Federal Court has found that employers have a legal right to make
signing an Australian Workplace Agreement a condition of employment for new
workers, a decision that bolsters the Howard Government's push for
non-union agreement making.
But the decision appears to create a distinction between new and existing
employees, suggesting that new employees can be required to sign an AWA as
a condition of engagement but existing workers cannot be pressured into
doing so.
Justice Michael Moore ruled that the mere fact that an employer offered
employment on the basis that a worker must sign an AWA in certain terms did
not constitute illegal duress under the Workplace Relations Act.
However, he rejected arguments by the privatised job provider, Employment
National, that unlawful duress could occur only if a worker had succumbed
to pressure and signed an AWA.
The decision in Schanka v Employment National was the latest in
long-running litigation over the corporation's right to shift former public
sector workers onto non-union individual employment contracts.
It is one of the first cases to interpret the meaning of the term "duress"
in the context of the Howard Government's labour legislation.
The Community and Public Sector Union argues that Employment National
breached section 170WG(1) of the Federal Workplace Relations Act by
applying unlawful duress on its members to convince them to sign non-union
AWA contracts when workers from the former Commonwealth Employment Service
were offered jobs with Employment.
In a blow to Employment National, Justice Moore said the question of
whether a worker actually signed a proposed AWA was irrelevent to the issue
of whether the employer had applied illegal duress (the CPSU had brought
action on behalf of members who refused AWAs).
"In my opinion, section 170WG(1) ... applies to the conduct of the person
applying duress irrespective of whether that conduct actually results in
the making of an AWA ..." he said.
"The conduct of the contravening party must involve illegitimate pressure,"
Justice Moore said, adding that: "It must be pressure likely to have the
effect of denying the exercise of free will if an AWA was made. It must
also be intended to have that effect."
But Justice Moore said: "I doubt that the mere fact that an employer offers
employment on the basis of an AWA in certain terms must be made, is
illegitimate pressure. It would do no more than place the potential
employee in a position of either declining or accepting the employment on
those terms and regulated ... by an AWA."
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or mirroring is prohibited.
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