Company fined almost $50,000 for applying duress to Hunter Valley workers
20 February 2014
A national company that deliberately breached workplace laws when it applied
duress to three employees to get them to sign workplace agreements has been
fined $49,550, in the Federal Circuit Court in Sydney.
Toyota Material Handling (NSW) Pty Ltd has received the penalty as the result
of an investigation and legal action by the Fair Work Ombudsman.
Judge Kenneth Raphael found that the company breached the duress provisions
of workplace laws when it applied pressure to three service technicians it
employed at an aluminium smelter at Kurri Kurri, just west of
Newcastle in the NSW Hunter Valley.
Toyota Material Handling employed the workers under Australian Workplace
Agreements (AWAs) on a permanent rotating shift basis at the site after it
secured a contract to provide all servicing and repair activity of plant and
equipment at the site.
In 2009, Toyota Material Handling sought to replace the AWAs the workers were
employed under with more site specific Individual Transitional Employment
Judge Raphael found that the company pressured the employees to sign the
ITEAs by telling them they would be rostered off their continuous shift work
positions if they did not sign.
Judge Raphael found that the consequence of being rotated off shift work
would include a "substantial loss of earnings" of between $500 and $600 a
The three workers signed the ITEAs, with Judge Raphael noting that "all three
employees deposed to concerns about the effect of not signing upon their
Judge Raphael found that the effect of Toyota Material Handling’s conduct was
to leave the three employees with "no real choice".
"This was the intention of Toyota Material Handling; and the conduct was
unconscionable or illegitimate," Judge Raphael said.
In his penalty judgment on the case released today, Judge Raphael said that "a duress contravention is by its very nature deliberate".
Judge Raphael also found that the company breached laws relating to required procedures for executing workplace agreements, including allowing employees seven days to consider agreements and providing information statements.
The company also breached workplace laws in 2006 when it made a false or misleading declaration to the Office of the Employment Advocate that an employee had received an information statement before signing a workplace agreement and that the employee had received the agreement 14 days before signing it.
Judge Raphael said that in determining penalty he took into account that
Toyota Material Handling had a "human resources team and a lawyer with dedicated
responsibility for compliance".
"A company with a human resources department and lawyers on staff should be
well aware of its obligations," Judge Raphael said.
"And non-compliance with those obligations, whilst possibly not deliberate,
is certainly negligent."
Judge Raphael also said that Toyota Material Handling had "not accepted
responsibility for its conduct or shown contrition".
"Given the large number of employees on the payroll of TMH it is important
that the company understand its obligations and that it appreciates that if it
contravenes the relevant workplace laws, it will be subjected to penalties for
doing so," Judge Raphael said.
Judge Raphael said the penalties should "provide a wake-up call to the
company and ensure that the management, including HR, understands and implements
the industrial laws governing the workplace".
"In regard to general deterrence it should be seen that a large company such
as this should not be immune from penalty, or have one imposed with such a light
touch that others be encouraged to view contraventions as a reasonable cost of
doing business," Judge Raphael said.
Fair Work Ombudsman Natalie James says the decision sends a clear message to
employers to ensure they negotiate lawfully with employees in an environment
free of duress and illegitimate pressure.
"The breaches in this case were very serious because they involve employees
being denied the opportunity to properly consider proposals relating to their
employment and make a decision that is their own best interest," Ms James
Employers and employees seeking assistance can
visit www.fairwork.gov.au or contact the Fair Work
Infoline on 13 13 94. A free interpreter service is available
by calling 13 14 50.
Ryan Pedler, Assistant Media Director
Mobile: 0411 430 902
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