FEDERAL COURT OF AUSTRALIA

Bishop v Ropolo Services Pty Ltd [2006] FCA 592

INDUSTRIAL LAW – Australian Workplace Agreement (‘AWA’) – duress – entry into AWA to obtain or maintain promotion

WORDS AND PHRASES – ‘duress’, ‘in connection with’

Workplace Relations Act 1996 (Cth) ss 170VV, 170WG

Australasian Meat Industry Employees’ Union v Peerless Holdings (2000) 103 FCR 577 cited

Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130cited

Briginshaw v Briginshaw (1938) 60 CLR 336 applied

Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276 applied

Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435 applied

Schanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663 applied

Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 186 applied

Schanka v Employment National (Administration) Pty Ltd (2001) 112 FCR 101 applied

Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 cited

ARNE HENRY BISHOP v ROPOLO SERVICES PTY LTD

ACD 40 of 2004

MADGWICK J

19 MAY 2006

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.             The application be dismissed.

2.             There be no order as to costs.

REASONS FOR JUDGMENT

madgwick J:

1                     This is an application made pursuant to s 170VV of the Workplace Relations Act 1996 (Cth) (‘the Act’) alleging contravention of s 170WG of the Act by the respondent, Ropolo Services Pty Ltd, trading as Landscape Direct.  The applicant, Mr Bishop, claims that the respondent breached subs 170WG(1) of the Act by applying duress to an employee, namely himself, in connection with an Australian Workplace Agreement (‘AWA’).  A penalty is sought to be imposed on the respondent pursuant to s 170VV of the Act for breach of subs 170WG(1) of the Act.

2                     Since the filing of the application and the hearing in this matter, the Act has been substantially amended and subsequently renumbered by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (‘the WC Act’).  While the WC Act also makes provision as to duress in connection with an AWA, the application of the law in this case requires a consideration of the Act as it stood prior to these amendments (see Reg 2.19 of the Workplace Relations Regulations 2006 (Cth)).  As such, any references to provisions of the Act are references to it in its previous form.

background

3                     Landscape Direct is a company that provides landscape architectural consulting services, as well as grounds maintenance services.  The greater part of Landscape Direct’s business is based in the Australian Capital Territory where it is engaged by both public and private clients at a variety of sites and properties.  Ground maintenance services are provided by Landscape Direct to a number of Australian Defence Force (‘ADF’) sites, including the Australian Defence College, Weston Creek in the ACT (‘ADC Weston’).  ADC Weston is an ADF facility that is maintained by Landscape Direct on behalf of a head contractor, Euro Support Services, which contracts directly with the Commonwealth Government for the provision of multi-activity services to the ADF.

4                     The applicant commenced fulltime employment with Landscape Direct as a General Groundsman Qualified Horticulturalist at its ADF sites in June 2003.  He was employed under the AWU Miscellaneous Worker’s Award 1998 and earned $525.16 gross per week in wages, which represented a base rate of $13.82 per hour, plus superannuation. 

5                     In October 2003 Landscape Direct began discussions with the ACT and Region Chamber of Commerce and Industry with a view to obtaining assistance and advice as to the drafting and introduction of a basic form of AWA capable of being tailored to the particular situation of each Landscape Direct employee.  An AWA precedent for Landscape Direct was subsequently developed by the ACT and Region Chamber of Commerce and Industry in conjunction with the respondent.

6                     In January 2004 a position of Site Supervisor at ADC Weston became vacant.  The position was advertised internally by Landscape Direct, in accordance with company policy.  The applicant orally expressed his interest in the position to Mr David Trethewey, at that stage, the respondent’s Contract Overseer.  Mr Trethewey asked the applicant if he would be interested in ‘acting’ in the position.  The applicant accepted the offer and from 20 January 2004 was employed as ‘acting Site Supervisor’ at ADC Weston.

7                     In his position as acting Site Supervisor, the applicant continued to receive the base hourly rate, to which he was entitled as a General Groundsman in addition to a ‘higher duties allowance’ of $2.18 per hour.  As a General Groundsman the applicant also received a weekly industry allowance of $0.545 per hour, which he continued to receive in his position as acting Site Supervisor.  From time to time the applicant also received additional allowances (for example, a ‘Weeds/Vermin’ allowance) which he had also received in his position as General Groundsman.  Whilst acting as Site Supervisor, both parties understood that any leave which the applicant took was to be paid at the base hourly rate to which he was entitled as General Groundsman and would not attract the higher duties allowance.

8                     On 10 February 2004 a staff notice was issued by Mr Gary Batchelor, the Australian Capital Territory Regional Manager of Landscape Direct, advising staff that an AWA had been produced for Landscape Direct and that all new positions or vacant higher positions would be subject to the AWA, a policy which was to take effect immediately.

9                     On 18 March 2004 Mr Trethewey telephoned the applicant to advise him that Mr Batchelor was going to offer him the job of Site Supervisor on a permanent basis.  The applicant subsequently received a telephone call from Mr Batchelor in which he was offered the position and invited to a meeting at Mr Batchelor’s office in order to look through some documents.  At this meeting, which occurred later that same day, Mr Batchelor advised the applicant that all new appointments within the company were to be subject to an AWA before explaining to him the AWA he would have to sign.  Mr Batchelor told the applicant that he would have a period of 14 days to consider the AWA and obtain advice in relation to the document.  Mr Batchelor also said that if the applicant were to elect not to sign the AWA, the position would be advertised internally.  The applicant understood that if he signed the AWA he would be permanently appointed to the position of Site Supervisor in which he had been acting.  The remuneration offered in the AWA for the position of Site Supervisor was $627.00 gross per week in wages, plus superannuation.

10                  The applicant consulted his union, the Construction, Forestry, Mining and Energy Union (‘CFMEU’).  On the recommendation of a CFMEU representative the applicant sought legal advice from Gary Robb and Associates, solicitors.  On or about 29 March 2004 the applicant advised Mr Batchelor that he did not want to sign an AWA for the full time position of Site Supervisor at ADC Weston, stating that he did not ‘believe in’ AWAs by way of explanation for declining the offer.  On 2 April 2004 the applicant’s solicitors wrote to Landscape Direct advising that its intention to advertise the position of Site Supervisor was contrary to s 170WG(1) of the Act and that further action, in the form of an application for interlocutory relief, would be taken should the position be advertised.  On or about 2 April 2004 the position of Site Supervisor was advertised internally in a staff memorandum dated 1 April 2004.  The applicant took a copy of this memorandum to his solicitors, who sent a further letter to Landscape Direct, dated 7 April 2004, repeating their assertion that further action, in the form of an application for an injunction, would be taken were the notice not withdrawn.

11                  Nevertheless, by arrangement between the parties, the applicant continued to act in the role of Site Supervisor until he took some leave towards the end of June 2004.  Upon return from leave on 3 August 2004, Mr Tretheway invited the applicant to rethink the question of the AWA, as otherwise the position would be advertised internally with a view to it being permanently filled using an AWA.  The applicant again declined to sign an AWA, repeating his in-principle objection to AWAs.  According to the applicant, the subject of an AWA was brought up on one further occasion some few days following this conversation, again by Mr Trethewey when he repeated Landscape Direct’s position that, unless the applicant signed the AWA, someone else would be appointed permanently to the position.

12                  In early to mid August 2004 Landscape Direct informed the applicant that the position of Site Supervisor, the duties of which he had been performing in an acting capacity, was to be filled by another staff member.  The applicant was advised that he would return to the permanent position he held prior to commencing higher duties and would be moved to a different site.

13                  On 10 September 2004 the respondent gave the applicant the choice of returning to either Russell/Campbell Park or HMAS Harman, both ADF facilities, as a Qualified General Groundsman/Second in Charge as of 14 September 2004.  The applicant elected to go to HMAS Harman where he continued to receive the base hourly rate he had received whilst acting as Site Supervisor, but without the higher duties allowance he had received in that role, a loss of $2.18 per hour.

14                  On 25 October 2004 the applicant resigned from Landscape Direct.

Duress in connection with An Awa

Legislative framework

15                  An AWA is a statutorily-created mechanism for the regulation of an individual employee’s relationship with an employer.  Section 4 of the Act defined an AWA as ‘an Australian workplace agreement under Part VID’.  Part VID included ss 170VA to 170X.  Of present relevance are:

·                    s 170VK(4), which provided that an employer or employee must not ‘coerce’ or attempt to coerce the other to appoint a particular person as an authorised bargaining agent;

·                    s 170VPA(1)(d) – which provided that a requirement for approval of an AWA by the ‘Employment Advocate’ established by the Act was that the employee ‘genuinely consented to’ making it;

·                    s 170VQ(1) – which provided that an AWA operates to exclude an otherwise applicable award;

·                    s 170VV(1) – which empowered an eligible court to make an order imposing a penalty on a person who contravenes a ‘penalty provision’.  That term was defined by subs 170VV(4) to include subs 170WG(1).

·                    s 170WF(1) – which provided that a non-party to negotiations relating to an AWA must not use ‘threats or intimidation’ with the intention of hindering the negotiations or the making of the AWA;

·                    s 170WG(1) – which provided that: ‘A person must not apply duress to an employer or employee in connection with an AWA or ancillary document’; and

·                    s 170WG(2) – which provided that a person must not knowingly make a false or misleading statement to another person with the intention of persuading the other person to make, or not to make, an AWA.

16                  Ryan J held in Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276 (‘Canturi’) at [44] that the onus of proof rests with the party alleging duress, the contravention must be proved on the balance of probabilities, and the cautions in Briginshaw v Briginshaw (1938) 60 CLR 336 are to be applied:

‘[T]he onus of proving duress remains on the applicants and it is one which, having regard to the seriousness of the alleged contravention, has to be proved to the reasonable satisfaction of the Court in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336.’

The nature of duress and its application in s 170WG(1):  previous authority

17                  The Full Court in Schanka v Employment National (Administration) Pty Ltd (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.’

18                  In Canturi Ryan J considered the meaning of duress in relation to complaints made by two employees of a coach and bus service who claimed to have been deprived of certain more lucrative and congenial classes of work offered by their employer, and which they had long performed, as a direct result of their refusal to sign AWAs.  His Honour said (at [43]):

‘In my view, the consensus of the authorities to which I have referred is that duress, in the relevant sense, involves the illegitimate application of pressure to induce a party to enter into an AWA, or to discourage a party from taking that course.  What is illegitimate is a question of fact to be decided in the circumstances of each case which may include whether there is an existing relationship of employer and employee or some other relationship of utmost good faith between the parties to the proposed AWA.  As is made clear by

the…Full Court in Schanka…it is not only pressure which in fact overbears the will of one party so as to result in an AWA being concluded that can amount to duress.’

19                  For illegitimate pressure to arise, an offer of employment contingent upon the signing of an AWA is insufficient in the absence of additional factors.  As Moore J observed in the first stage of the Schanka litigation in Schanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663 (‘Schanka No 1’) at [43]:

‘I doubt that the mere fact that an employer offers employment on the basis that an AWA in certain terms must be made is illegitimate pressure.  It would do no more than place the potential employee in the position of either declining or accepting the employment on those terms and regulated that way, that is by an AWA.  Something more is probably necessary’.

20                  This view was confirmed by the Full Court in the Schanka appeal.  The Court said (at [22]):  ‘In our view, the Explanatory Memorandum indicated only that to stipulate that entry into an AWA is essential to obtain employment with the offeror will not, of itself, or necessarily, constitute duress’.

21                  As Moore J said in Schanka No 1 at [43], for the application of pressure to become illegitimate: ‘it must be pressure that is likely to have the effect of denying the exercise of free will if an AWA was made.  It also must be intended to have that effect’.  It follows that s 170WG(1) does not confine the prohibition on duress to situations which have actually resulted in the conclusion of an AWA.  The authorities make it clear that s 170WG(1), with its prohibition of duress ‘in connection with’ an AWA, applies to both the formulation of an AWA and to the completed AWA, regardless of whether entry into an AWA by an employee or employer eventuates.  As Moore J said in the Schanka No 1 at [42]:

‘In my opinion s 170WG(1), properly construed, applies to the conduct of a person applying duress irrespective of whether that conduct actually results in the making of an AWA and irrespective of whether, as a matter of fact, the party subjected to that conduct did not freely make the AWA if one was made.’

22                  In the second stage of the Schanka litigation, following the appeal to the Full Court, Moore J further considered how the test of illegitimate pressure was to be applied to s 170WG(1) in Schanka v Employment National (Administration) Pty Ltd (2001) 112 FCR 101 (‘Schanka No 2’).  His Honour concluded at [100] that:

‘…the question raised by s 170WG is not answered, in my opinion, by first asking whether the prospective employer (as alleged in this case) applied pressure as a discrete question and then asking whether the pressure was illegitimate.  The question raised by the section is whether duress was applied which can be answered by considering whether illegitimate pressure was applied to secure, at the very least, ostensible agreement to enter an AWA and thereby to secure, again at the very least, ostensible agreement to the terms and conditions of employment embodied in the AWA.  That is, to repeat what I said in the judgment of 24 September 1999, whether illegitimate pressure was applied, and conduct was engaged in, by a person (in this case the prospective employer, ENA) that might result in illusory and not real negotiation or bargaining and general agreement’.

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)

24                  The potential for duress to contaminate the negotiation and conclusion of an AWA is heightened in circumstances of significant power disparity between the parties.  As Ryan J noted in Canturi at [88]: ‘[t]he requisite openness and freedom is lost if one party to an existing relationship in a position of great economic superiority uses that advantage to apply illegitimate or unconscionable pressure to induce the other party to enter into an AWA’. 

25                  Economic pressure that is applied illegitimately can amount to duress.  Such is the position in relation to the common law torts:  Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 400 per Scarman LJ.  However, as Finn J observed (in Australasian Meat Industry Employees’ Union v Peerless Holdings Pty Ltd (2000) 103 FCR 577 at [54]):  ‘Economic duress should not be found lightly’.

26                  In the Schanka litigation, employees who were transferring from one enterprise to another were offered employment in positions that required them ‘to perform the same or substantially the same work in the same position and location’ as they had previously done (see Schanka No 2 at [102]).  However, as a precondition to employment, those employees were required to enter into AWAs.  As a result, each employee ‘was, in substance, rendered impotent in negotiating or bargaining about the terms and conditions on which they would perform the work which differed from the terms and conditions on which they had, to that point, enjoyed’ (Schanka No 2 at [102]).  Moore J further said at [102]: ‘the offer of employment in the same job is, in my opinion, the singularly most important of the matters particularised in … the statement of claim as evidencing illegitimate pressure’.  I understand the rationale for this reasoning to be that the employees would have had a reasonable expectation that they would obtain positions with the new employer that would be held on conditions not materially inferior to those applicable in the previous employment, but that they were threatened with loss of such existing expectations unless they entered into the AWAs.  Their relative position in the marketplace was thus threatened. 

submissions

Applicant’s submissions

27                  The applicant submitted that s 170WG(1) had been breached because the respondent applied duress to an employee – the applicant – in connection with an AWA. 

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. 

32                  Similarly, the applicant submitted that, by analogy with Canturi,a 15.8 percent reduction in salary would have a similar effect to the withdrawal of the more congenial types of available work.  The applicant also submitted that the employment arrangement in Canturi was not one of permanency, but one in which the employees had been rostered onto the tourist route or given overtime (the preferred work) over a long period of time.  Thus, relying on Canturi at [45], duress also includes disadvantaging an employee in relation to the position he or she held.

33                  The applicant also submitted that an expectation about his potential transition from acting to permanent Site Supervisor had been generated by the respondent.  The applicant said that, after accepting the role of acting Site Supervisor but prior to his commencement in the position, Mr Trethewey told him that, subject to a trial period in the higher position, the job would be his on a permanent basis.  Indeed, the applicant acted in the position for a period of eight months.  Although Mr Trethewey denied indicating that the applicant would get the position permanently, that there was a trial period, or giving him any understanding that he was ‘on a promise’, the applicant submitted that a reasonable expectation that he would remain in the Site Supervisor’s position had been generated.  Further, there had been a pattern of employees acting in positions for the respondent, and then being promoted on a permanent basis.  Under those circumstances, the applicant could have reasonably expected to be confirmed in the position. 

Respondent’s submissions

34                  The respondent accepted that the courts have found an application of duress to have occurred in circumstances where the behaviour by the party applying the pressure in connection with an AWA was punitive and unconscionable, and in circumstances where employees of long standing service were required to undertake exactly the same job.  However, here the circumstances were different.  First, the respondent had made an offer of permanent employment to Mr Bishop in terms and on conditions it was lawfully able to make, one of those terms being the execution of an AWA.  Second, the respondent provided various opportunities over several months for further discussion with Mr Bishop in relation to the proposed AWA.  Third, the applicant did not consider the particular AWA in issue as he was opposed to all AWAs in principle.  Fourth, at no point did the applicant proffer any reasons for his refusal to sign the AWA in question, and in particular, did not tell Mr Trethewey or Mr Batchelor about any concerns he may have had relating to particular clauses or elements of the AWA, nor did he attempt to negotiate the content of that AWA. 

35                  Landscape Direct was engaged in a legitimate and lawful process of regulating their employment relationships with their employees.  There was no dispute about the applicant’s performance.  As a result, the current dispute could be characterised thus: the applicant had simply elected not to avail himself of an opportunity for a new contract of employment in a position with higher status and wages because he had declined to sign an AWA.  The applicant was simply faced with a choice, and the process of making that choice was not polluted by the exertion of illegitimate pressure by the respondent.

36                  The respondent was entitled to require all new employees or employees entering into promotion positions to enter into an AWA as part of their terms and conditions of employment.  The Act specifically sets out these steps and Landscape Direct was doing no more and no less than following the steps so provided.

37                  As a secondary submission, the respondent contended that the Court’s jurisdiction to entertain the applicant’s claim for relief under s 170WG is only enlivened if the Court is satisfied that the behaviour of the respondent or the circumstances of the allegations could be considered to have been ‘in connection with an AWA’.  It was submitted that the circumstances of the allegations did not show the necessary connection or inter-relatedness to satisfy the requirements of the section.  The applicant had never, either individually or through his legal representatives who were writing letters seeking to protect him in other ways, sought to raise anything that might be wrong with the particular AWA in question, and his evidence was to the effect that he was not going to sign ‘any AWA’. 

38                  That is, the respondent contended, the evidence demonstrates that the applicant had never turned his mind to the particular AWA in question, as he was opposed in principle to the operation, intent and policy of AWAs at large.  As a consequence, the respondent argued that the applicant was not able to then rely on s 170WG.  In support of this contention, the respondent relied upon an observation by Barwick CJ in Brown v Rezitis (1970) 127 CLR 157 at 165, wherein his Honour said:

‘Whilst it can be said that the expression “in connection with” is of wide import, it does emphasize the need for a close connexion between the order made and the contract or arrangement varied or avoided.’

39                  In light of this, the respondent contended that the vital ingredient of ‘in connection with an AWA’ was absent.  Nothing happened ‘in connection with an AWA’.  While the respondent conceded that a finalised AWA was not necessary to enliven s 170WG(1), it contended that, because the applicant’s position was that, regardless of what form the AWA took, he did not want to make an AWA, the incidents in question were not ‘in connection with an AWA’. 

40                  The respondent also submitted that the applicant was mistaken as to the amount he would be paid in the respective positions.  The 15.8 percent loss of remuneration asserted by the applicant was not a real loss at all.  While employees would not have received the (small) Weeds/Vermin allowance, for example, under the AWA, the intention was that the quantum of the higher duties allowances would be part of the rate available under the AWA.  The respondent submitted that the applicant’s belief as to whether he thought he would be disadvantaged under the AWA was wrong.  The respondent relied upon evidence given by Mr Batchelor to the effect that he was aware that the Office of the Employment Advocate would not allow an AWA to pass that paid an individual less wages than would have otherwise been available under the relevant award.  Mr Batchelor said that it had not been his intention to lower the hourly rate of an employee who entered into an AWA, and that any such decrease in income was purely the result of oversight on his part.  Furthermore, he said that, if he had been notified of such an instance, he would have re-examined his calculations and adjusted the amounts accordingly if a decrease would in fact have occurred.  However, at no stage had Mr Bishop raised his concerns with Mr Batchelor or any other agent of the respondent.  I accept Mr Batchelor’s evidence on this matter.

41                  Furthermore, no application of duress had occurred in the present case because there was no suggestion, and no evidence to suggest, that the applicant’s enjoyment of his substantive position (the Groundsman position) was in any way affected by the offer in relation to the Site Supervisor position.

consideration

42                  The question to be resolved is:  did any conduct of the respondent constitute the application of duress in connection with an AWA?  As a starting point, it is worth noting the notion of freedom of contract that underpins the legal framework of social intercourse and interaction.  As Kirby P (as he then was) observed in Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 at 133:

‘It is an attribute of a free society, as we know it, that it is generally left to parties themselves to make bargains.  It is therefore left to them sometimes to fail to make bargains or to fail to agree on particular terms.  Well meaning, paternalistic interference by courts in the market place, unless authorised by statute or clear authority, transfers to the courts the economic decisions which our law, properly in my view, normally reserves to parties themselves’.

Legislative policy

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

·                    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.

·                    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. 

·                    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. 

·                    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.

·                    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.

·                    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.

·                    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.

·                    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.

·                    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. 

·                    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. 

Factors that suggest that duress was not applied

45                  On one view, it could be said that the legislation in question simply allows employers to conduct their affairs in this manner.  This could simply be a case of an employee who held a philosophical view about the trade union movement, and an employer who held a different view, and in that context, both parties – entirely by free choice – choose not to proceed as the employer wished.  The respondent did not do anything to the applicant tending to make him sign, nor did the respondent do anything to ‘pressure’ the applicant into signing.  Significantly, the respondent gave the applicant a choice between two jobs to return to after finishing as acting Site Supervisor.  In short, the proposal equated to presenting a choice between the applicant having the promotion (and the associated advantages) if he signed the AWA, or not getting that promotion if he did not.  His relative position was not reduced in that, if he did not get a permanent promotion, he could continue acting in that position until someone else filled it.

46                  It is not necessarily the case that the applicant had as much right to the promotion as the bus drivers in Canturi had a right to the more lucrative and congenial work.  The employees in Canturi had a longstanding expectation, whereas the applicant in the present case could hardly have had that.  In short, the applicant had no legal right to the promotion and the evidence does not suggest that he was given any settled expectation of such.  It is this element of expectation that both Canturi and the series of Schanka decisions seem to turn upon.

47                  The applicant had been warned, and was fully aware, that if he did not sign the AWA he would remain in his substantive position as a Groundsman, that the Site Supervisor’s position would not be available to him, and that the position would be advertised internally.  A practical choice was open to the applicant: he could have simply continued in his permanent job, and as such, on one view, no real change, and therefore no detriment, occurred to the applicant. 

48                  Even though the applicant felt threatened when Mr Batchelor informed him that if he did not sign the AWA the respondent would have to advertise the position internally, that is not sufficient to amount to the respondent’s applying duress.  The applicant was approached several times and given the opportunity to rethink his position, and take up the offer of promotion governed by an AWA.  It was common ground that the applicant was aware of this choice for some time.

49                  The respondent continued the applicant on his higher duties allowance, despite his rejection of an AWA.  It was not altering the applicant’s position, which was only a temporary one but rather altering its own intentions, by seeking an AWA as a condition of a permanent novation of the contract of employment, if the applicant were to be permanently promoted.  Having the applicant ‘act’ in the position was an intrinsically temporary arrangement.  The respondent did not threaten the applicant that that temporary arrangement would end unless he signed an AWA.  Such temporary arrangement was always going to be terminated by the permanent appointment of somebody – whether it was the applicant or someone else – to the position.  The respondent did not say, ‘if you want to continue in your acting position you had better enter into an AWA’. 

Application of legislative policy to the present case

50                  Given the legislative policy that underpins the Act and the provisions in question discussed above, the question in this case then becomes:  what, if anything, did the respondent intentionally do that would have the purpose and likely effect of worsening the applicant’s bargaining position? 

51                  After the respondent received its final advice from the ACT and Region Chamber of Commerce and Industry, and arrived at a point where it could formally announce its general policy, it promptly did so.  The notice announcing the policy indicates that the respondent was concerned not to disturb any existing employee at any level.  That is, it appears that the company had implicitly accepted and recognised, no doubt on advice, that unfairness might result from requiring existing, permanent employees to enter into an AWA.  The result was that the applicant ‘fell between the cracks’, as it were.  While this is unfortunate, it does not, in my opinion, constitute the application of duress to him by the respondent.

52                  The relative shortness of the period the applicant acted in the higher job before the respondent announced its new policy about AWAs tells against the legitimacy and reasonableness of any expectation that the applicant may have had.  The respondent did not keep the applicant acting in the Site Supervisor position for any very extended time after the AWA question had arisen, only to agitate the issue after such a time that the applicant might reasonably have thought that the issue had gone away and that his employer had acquiesced in his wishes.  The case for the applicant might possibly be different if he had been permanently in the position, and had, for example, permanently adjusted his personal expenditure in reliance on a particular salary level.  However, there is no suggestion that any such thing occurred. 

53                  The parties were at all times in Canberra and its suburbs.  They used a common language of ‘acting appointments’ and ‘higher duties allowance’.  Such language was very likely drawn from the realm of statutory appointments of people to public offices.  In the private sector sphere of employment law, based upon contracts of employment (overlain or modified by statutory and award/registered industrial agreement provisions), such language is metaphorical.  As a matter of contract law, a ‘promotion’ means a variation or novation of an existing contract of employment whereby the employee undertakes to serve the employer in a different and higher-paid capacity, normally without loss of accrued benefits from the pre-existing contract of employment.

54                  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. 

55                  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.

56                  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.  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. 

57                  The conclusion I reach here is that neither the respondent nor any of its agents themselves applied any pressure to the applicant.

58                  The timing of relevant events is important.  At the point when the respondent 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, it seems to me that the applicant had acquired neither any right nor legitimate expectation (of a kind that s 170WG should be regarded as rendering protected) engendered by the respondent that the promotional position in question would be his.

59                  It was argued for the applicant that he had such an expectation:  that it had been intimated to him that, should he prove able, while ‘acting’ in the higher job, to do it, the job would be his.  However, this does not survive analysis.  The respondent announced its policy on 10 February 2004, only 3 weeks after the applicant started performing the higher duties.  He could then have had no reasonable sense of grievance if, for example, a better qualified person had then presented and been chosen for the post, nor if the respondent had decided to reorganise the work so that the higher paid job no longer existed.  Thus, the best that that can be said is that, subject to good performance, he had been led to expect that he had a strong chance of obtaining the job on a permanent basis, unless the respondent embarked on some policy that would indicate a different outcome.  That does not, in my view, amount to such a legitimate expectation of the kind contended for by the applicant and engendered by the conduct of the respondent.

60                  Had there been a firm and express policy of the respondent to promote internally and purely on merit, shown, for example, to have operated as an inducement to the applicant to begin work with the respondent or to upgrade his qualifications by part-time study to enhance his career prospects, and to remain in the respondent’s employment, the position might perhaps have been different.  An indication that reliance on such an inducement would be disappointed if an AWA were not entered into – in the sense of diminishing his bargaining position – might be said to amount to the application of pressure.  Such pressure might amount to ‘duress’.

61                  The statutory concept proscribed is the application of duress, not the application of pressure.  The word ‘duress’, in the context, implies an element of conduct that merits disapproval.  The introduction of the regimen of AWAs enabling the contracting out of awards and the like was aimed at allowing a freer, but not unrestrained, operation of market forces.  What might call for the curial disapproval necessary to have a particular form of pressure recognised as duress, apart from its tendency to affect the decision of the subject party to make an AWA or not, is to be judged against that concept.

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.

63                  In the present case, on and after 10 February 2004 when the employer commenced its new and generally applicable policy as to new appointments, the applicant is likely to have understood this as relating to new permanent appointments.  He knew then that he did not have a permanent appointment to the Site Supervisor position.  From that time on, he could only have had a reasonable expectation that, at best, he would secure such permanent appointment if he both did well while acting in the higher job (which he certainly did) and if he were prepared to enter into an AWA.  Before February 2004 nothing had occurred which he had relied upon that could reasonably be said to give him an established expectation of anything.

64                  When the time came for the respondent to make the new, permanent position to the Site Supervisor job and the offer of it was made to the applicant conditionally upon his signing an AWA, nothing was done or threatened to him in relation to the pre-existing status quo.  In particular, to point out to him the consequence of not signing the AWA did not amount to any threat to his position:  the observation merely reminded him of his legal position and his position as to reasonable expectations.  The respondent did not apply duress to him.

65                  As to the alleged 15.8 percent drop in salary, I accept the evidence for the respondent that, if that were so, it was an error and, if it had been brought to Mr Batchelor’s attention, he would have adjusted the remuneration.  The respondent’s practice and intention was not to reduce pre-existing remuneration for employees who would enter into AWAs but to preserve the same general level and, in case of doubt, to err on the side of slight generosity.  Flexibility of deployment rather than immediate cost-cutting at the expense of existing employees, seems to have been the respondent’s goal.  In any case, that drop was nothing more than the consequence of the application of the employer’s new policy for new, permanent contracts of employment in promotional positions and, in my opinion, not indicative of any breach of

s 170WG(1).  There was no intention to force the applicant onto a lower remuneration for the same work.

Disposition

66                  For these reasons the application will be dismissed.  There will be no order as to costs:  see s 347 of the Act.

Associate:

Dated:              19 May 2006