Section 343 of the Fair Work Act 2009 (Cth) makes it unlawful for a person to 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 exercise, not exercise, or propose to exercise or not exercise a workplace right, or to do so in a particular way.
We often hear about these laws in the context of “bosses bullying workers” – but the wording of the Act is actually person-neutral.
A “person” has been consistently interpreted by Australian courts to apply to employees, unions and union officials, just as much as it applies to employers. This has been held, mostly in cases involving trade unions committing coercion against employers or other parties (e.g., Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; CFMEU v Hansen Yuncken Pty Ltd [2011] FCA 1104; ABCC v CFMEU (The Brooker Highway Case) [2017] FCA 1191).
Can a Single Employee commit coercion?
While most reported cases involve unions, the law applies equally to individuals. An individual employee could be found liable under s 343 if they threaten unlawful action or engage in extortion regarding workplace rights in order to force the hand of an employer or another party.
Examples of this include threats such as: “if you don’t give me this promotion, I will delete the firm’s client database“, “if you make me redundant, I will ruin this company”, or “if you proceed with my performance management, I will file a [false] report with the ATO/WorkSafe”.
In all the above cases, the employee is issuing a threat intended to coerce the employer into exercising or not exercising their legitimate rights.
Other examples of employee coercion include:
- Unprotected industrial action: If an employee or group of employees threatens to walk off the job (unprotected strike) unless the employer drops a disciplinary proceeding against a colleague. The employer’s right to conduct disciplinary action is a workplace right.
- Union officials: many of the better known s 343 cases involve union officials (threatening “Armageddon” or national industrial action to force a company to force the company to hire certain individuals, or to stop exercising its right to seek court injunctions (e.g., CFMEU v Hansen Yuncken).
When is it not coercion?
Employers, note: if an employee makes a legitimate threat to exercise a lawful right (e.g., “If you don’t pay my overtime, I will lodge a claim with the Fair Work Ombudsman”), that is not coercion. For a threat to constitute coercion, it must involve an unlawful or illegitimate act to force you to do something you have a right to choose not to do.
The coercion test
For an employee’s conduct to be considered coercion under s 343, it must meet three specific criteria:
- Action or threat: the employee must take (or threaten to take) action against the employer.
- Intent to coerce: the intent must be to negate the employer’s choice. In legal terms, this usually means that the pressure applied must be unlawful, illegitimate, or unconscionable.
- Targeting a workplace right: the pressure must be intended to force the employer to exercise (or not exercise) a workplace right.
Reverse onus of proof (s 361)
If an employer brings a claim against an employee or union under s 343, the reverse onus of proof applies.
This means that all the employer needs to do is prove that the action has taken place (e.g., an employee has issued a threat to do X unless the employer does/does not do Y): it is presumed that the employee had the intent to coerce, unless the employee can prove otherwise. This makes it a very powerful tool for employers in industrial disputes.
If you or your company is affected by an actual or potential employment dispute, get in touch to get Praetorium Law to help.
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