Application of illegitimate pressure by two senior executives on a pregnant employee who was about to undertake maternity leave to vary her AWA was found to be in contravention of federal industrial relations legislation.
In Fair Work Ombudsman v RHD, the Company Secretary and General Manager of an electronic and equipment supplies company were found to have applied duress on a pregnant employee suspending her salary and entitlements until she had signed a variation to her AWA. The variation would have reinstated her in a position paying 25% less than her current salary of $46,000 (part time pro rata) as a clerical and administrative employee.
While the decision to terminate the employee’s position and offer her a different position was discussed with the employee two months prior to her leave, the terms of the position were not disclosed until two weeks before her departure. The senior executives then attempted to coerce her into signing the variation of her AWA during a meeting, which was refused. In a final effort, the respondents instructed the payroll officer to suspend the employee’s entitlements on the day she was to commence maternity leave.
In finding that the two senior executives applied illegitimate duress on an employee, the Federal Magistrates’ Court ordered the company to pay a penalty of $16,500 and the executives to pay $3,300 each. Additionally, the court held that whilst objectively the amounts withheld were no large (totalling $2,591.09), they were nevertheless very important to the employee under the circumstances.
The new Fair Work Act requires employers to act responsibly and reasonably in a number of areas including workplace rights. Any attempt to coerce or intimidate or unfairly influence an employee to act to their detriment or prejudice will give rise to an Adverse Actions claim, entitling the employee and unions to seek damages, penalties and injunctions.