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 130 cited
Briginshaw v Briginshaw (1938) 60 CLR 336 appliedCanturi v Sita Coaches Pty Ltd (2002) 116 FCR 276 applied
Maritime Union of Australia v Burnie Port CorporationPty 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 citedARNE HENRY BISHOP v ROPOLO SERVICES PTY LTD
ACD 40 of 2004MADGWICK J
19 MAY 2006SYDNEY (HEARD IN CANBERRA)
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
ACD 40 of 2004
BETWEEN:
ARNE HENRY BISHOP
APPLICANTAND:
ROPOLO SERVICES PTY LTD
RESPONDENTJUDGE:
MADGWICK J
DATE OF ORDER:
19 MAY 2006
WHERE MADE:
SYDNEY (HEARD IN CANBERRA)
THE COURT ORDERS THAT:
1.The application be dismissed.
2.There be no order as to costs.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
ACD 40 of 2004
BETWEEN:
ARNE HENRY BISHOP
APPLICANTAND:
ROPOLO SERVICES PTY LTD
RESPONDENT
JUDGE:
MADGWICK J
DATE:
19 MAY 2006
PLACE:
SYDNEY (HEARD IN CANBERRA)
REASONS FOR JUDGMENT
MADGWICK J:
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.
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
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…
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- AGLC
- Bishop v Ropolo Services Pty Ltd [2006] FCA 592
- Case
- [2006] FCA 592
- Decision Date
CaseChat Overview and Summary
The legal issues revolved around interpreting the notion of freedom of contract and understanding the legislative policy behind the prevention of duress in the context of AWAs. The court examined whether the employer's conduct constituted duress, considering factors such as the difference in pay between roles, the employee's desire for the position, and the impact of the employer's proposal on the employee's economic position. The court also considered the established legislative policy which aimed to ensure that AWAs are entered into without undue pressure, but not to interfere with the natural economic pressures of the job market.
In reaching its decision, the court weighed various factors suggesting both the presence and absence of duress. While the employee's concerns about AWAs and the pressure of his employer's proposition seemed to indicate duress, other considerations, such as the absence of any direct evidence linking the employee's substantive position to the AWA offer, pointed to the opposite. Ultimately, the court found that there was no application of duress because the employee's enjoyment of his substantive position was not affected by the offer. The court emphasised that the legislation aimed to prevent the exacerbation of an employee's poor economic position by the employer, rather than saving an individual from their circumstances.
The court dismissed the application and made no order as to costs, concluding that the employer's conduct did not constitute the application of duress. The decision underscores the importance of maintaining the integrity of the freedom of contract principle while ensuring that employees are not unduly pressured into entering AWAs.
Orders
Orders of the court
1. The application be dismissed.
2. There be no order as to costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MADGWICK J
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 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 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. 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