Coercion

1. A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
   1. exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
   2. exercise, or propose to exercise, a workplace right in a particular way.
2. Subsection (1) does not apply to protected industrial action.

A person must not organise, take or threaten any action against another person to force that other person, or a third person, to:

• exercise or not exercise a workplace right
• propose to exercise or not exercise a workplace right, or
• exercise or propose to exercise a workplace right in a particular way.[1]

Example

An employer must not threaten an employee with demotion unless the employee stops a harassment claim against their supervisor.

This protection does not apply to organising (or threatening) protected industrial action.

A person coerces another to act in a particular way if the first person brings about that act by force or compulsion. Coercion will cause a person to act in a way that is non-voluntary.[2]

There must be two elements to prove ‘intent to coerce’:

• it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice, and
• the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.[3]

Coercion is distinguished from other concepts including influence, persuasion and inducement. Coercion implies a high degree of compulsion and not some lesser form of pressure where a person is left with a realistic choice as to whether or not to comply.[4]

Coercion may take many forms. Persuasion becomes coercion when a person who influences another does so by threatening to take away something they possess, or by preventing them from obtaining an advantage they would otherwise have obtained.[5]

The prohibition applies irrespective of whether the action taken to coerce the other person is effective.[6] However, the actual effect of conduct may indicate the intent or purpose of the alleged contravener when the action was taken.[7]

Alleged conduct found to be coercion

Threat to commence industrial action

Seven Network (Operations) Ltd v CEPU [2001] FCA 456 (26 April 2001), [(2001) 109 FCR 378]; [2001] FCA 672 (5 June 2001).

The Court found that threats had been made with intent to coerce the employer to enter into a local, rather than national, enterprise agreement. The Union had threatened disruption to the Seven Network’s coverage of the AFL finals and the Olympic Games, a time which was considered by the Seven Network to be the most important period for live coverage in the history of its business.

Penalty ordered
The respondent was ordered to pay the applicant $7,500 as a pecuniary penalty.

Officers of the respondent were ordered to pay the applicant $1,500 and $500 as pecuniary penalties.

Threat to prevent future postings

Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2011] FMCA 58 (11 February 2011), [(2011) 201 IR 441]; [2012] FMCA 711 (15 August 2012).

The Court found that a threat by the respondent to prevent the applicant from going on future postings was an attempt to bring illegitimate pressure on him to prevent him from further pursuing claims relating to his entitlements.

Penalty ordered
The respondent was ordered to pay the applicant $13,200 as a pecuniary penalty.

The manager of the respondent was ordered to pay the applicant $2,200 as a pecuniary penalty.

Threat to reject future tenders
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd [2013] FCA 446] (17 May 2013).

McCorkell put work out to tender and Eco was an unsuccessful bidder. Eco was informed by the Victorian Government that its agreement was not Code compliant and that compliance was necessary in order for Eco to continue to obtain government work.

The action contravened the Fair Work Act as it was taken with the intention of coercing Eco and Eco’s employees to exercise their workplace right to vary the agreement to make it compliant with the Code.

Changes to conditions of employment

Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064 (6 September 2011).

The respondent told the applicant that if he did not sign an individual flexibility agreement he would become a casual employee, would not receive standard hours each week, could not continue working the hours he was currently working and could not be employed by the respondent.

The Court found that the respondent threatened to take action with intent to coerce the applicant to exercise or not to exercise his workplace right and/or exercise his workplace right in a particular way.

Penalty ordered
The respondent was ordered to pay the Commonwealth $25,000 as a pecuniary penalty.

The managing director and company secretary of the respondent was ordered to pay the Commonwealth $5,000 as a pecuniary penalty.

Compensation ordered
The respondent was ordered to pay the applicant $7,146 for loss suffered.

Right to take paid personal leave

Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467 (17 May 2013); [2014] FCA 128 (24 February 2014).

The applicant was dismissed after telling the respondent he would need chemotherapy treatment for cancer. The Court found the respondent took action against the applicant with intent to coerce him not to exercise a workplace right, namely the right to take paid personal leave.

Penalty ordered
The respondent was ordered to pay the Commonwealth $35,000 as a pecuniary penalty.

The managing director of the respondent was ordered to pay the Commonwealth $6,500 as a pecuniary penalty.

Compensation ordered
The respondent was ordered to pay the employee $10,953.73 for accrued leave; $4,037.40 for non-payment of notice of termination; and interest.

Right to benefits under award

Dicks v Gemco Foods Pty Ltd [2012] FMCA 230 (26 March 2012).

The respondent stopped providing the applicant with shifts after the applicant lodged a claim with the Commission about her entitlements under the award. The Court found the respondent deliberately engaged in conduct with the intention of coercing the applicant to abandon her claim to receive the benefits of the award or to leave the respondent’s employment.

Penalty ordered
The respondent was ordered to pay the applicant $20,000 and the Commonwealth $10,000 as pecuniary penalties.

Alleged conduct found NOT to be coercion

Disciplinary action for serious misconduct

Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 (23 July 2010), [(2010) 188 FCR 221].

The respondent gave three employees the option of taking one month leave without pay instead of dismissal as disciplinary action for a serious OH&S breach. The applicants alleged the respondent had threatened them with dismissal so as to coerce them into agreeing not to exercise their right to attend and be paid for work under the certified agreement. The Court found in making the offer, the respondent did not negate choice but rather offered a choice.

Provision of information relating to a workplace injury

Evangeline v Department of Human Services [2013] FWC 807 (28 June 2013).

The applicant alleged coercion on the part of the respondent in its dealings with Comcare and the Merit Protection Commissioner. The applicant claimed, among other things, that the respondent acted with the intention of coercing Comcare to deny liability for her workplace injury.

The Court found that the third parties sought information at different times from the respondent and such information was provided. It was stated by the Court that the allegations were fanciful in the extreme.

Workplace law not identified

Austin v Honeywell Ltd [2013] FCCA 662 (28 June 2013).

The applicant claimed that an offer of employment was withdrawn after she refused to provide the respondent with certain information during the pre-employment screening process. She claimed to have exercised a workplace right under the Privacy Act, however the Court found that this was not a workplace law.

Since the provision concerns the exercise of a workplace right and the applicant had not identified a workplace right because she had not identified a workplace law or instrument, the claim of coercion was not made out.