A person must not organise, take or threaten any action against another person to force that other person, or a third person, to:
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’:
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]
[1] Fair Work Act s.343.
[2] Finance Sector Union v Commonwealth Bank of Australia (2000) 106 IR 139 [44]; cited in Liquor Hospitality & Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 [63].
[3] Seven Network (Operations) Limited v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 [39].
[4] National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 [103]; cited in Liquor Hospitality & Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 [65].
[5] Ellis v Barker (1871) 40 LJ Ch 603; cited in National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 [103]; and Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd (2011) 201 IR 441 [49].
[6] Explanatory Memorandum to Fair Work Bill 2008 [1391].