Australia’s Workplace Ombudsman, Nicholas Wilson, has now confirmed that the agency will be prosecuting mining company Zinifex Australia Ltd in the Federal Court for allegedly pressuring workers to signing AWAs. The case is unusual because the workers involved were not employees of Zinifex, but of labour hire companies Skilled Group and Tesa Group.

Zinifex is being accused by the Ombudsman of pressuring the workers, who were working at Zinifex’s Hobart smelter at the time, to sign AWAs being offered by their employers. Zinifex allegedly told the workers that if they refused, their services would no longer be required at the Zinifex smelter.

Ben Carter, the Workplace Ombudsman’s director of media and stakeholder relations, explained that just as it is unlawful for an employer to apply this type of pressure to employees, it is equally illegal for a third party to do so. “It is utterly unlawful for any party to duress someone to sign an AWA,” he said.

Zinifex’s acting chief executive officer, Tony Barnes, has denied the accusations. “Put simply, this is not the way Zinifex conducts its business. It is contrary to our values and the way the company conducts its high standard of workplace relations. We are currently investigating the circumstances of the allegation and will then determine what the appropriate course of action is,” he said.

The matter will be heard in the Federal Court from 5 February.

As Lawyers Weekly reported late last year, the Ombudsman launched an investigation in December into union accusations that Telstra had pressured employees on existing AWAs to enter into new AWAs with the maximum five-year term. This would see employees sign new AWAs before the government’s proposed transition Bill is passed. Telstra has confirmed that AWAs have been re-offered, but has denied claims that duress was applied to employees.

Wilson has now confirmed that the investigations have commenced, and that initial meetings have been held with Telstra and the unions making the accusations — the Communications, Electrical and Plumbing Union and the Community and Public Sector Union. Those Telstra employees involved will now be interviewed by workplace inspectors.

“Telstra is cooperating with the investigation and has supplied all the documentation requested by the Workplace Ombudsman to date and the unions have and are continuing to provide information to support their allegations of duress by Telstra in connection with the re-offered AWAs,” Wilson said.

According to the agency, approximately 19,000 Telstra employees have been offered AWAs and one of the challenges the agency now faces is ensuring that the employees are aware that the investigation is being conducted.

Carter explained that issues can arise both when employees are offered new AWAs, or when employees on existing AWAs are re-offered new AWAs with the life span expanded to the maximum five years, as is the case with Telstra.

Carter warned that employers need to be careful not to apply undue pressure to their workers, either to sign a new AWA or an AWA that is being re-offered, in the lead up to the transition Bill being submitted to federal Parliament.

“We have received some claims of duress at this time and we may receive significantly more, we just don’t know yet what will happen. Employees need to be aware that they don’t need to sign the AWA. They need to think about it and if they have any concerns they need to contact the Ombudsman,” he said.