Consultancy company penalised for AWA duress
Consultancy company penalised for AWA duress
The Court held that the consultancy company and the employer had jointly developed a plan to offer standard AWAs with set terms and conditions. There was no room for the employee to negotiate different terms and conditions under the AWA, or a different industrial instrument. The transferring employee had to sign the AWA to keep her position in the company. In addition, if the employee accepted the AWA, she would have been subject to a 3 month probation period for her current role. The Court found that in these circumstances, there was application of duress by the consultancy company and the employer.
Both the employer and the consultancy company were penalised $6,700 each and were jointly and severally liable for $983.40 compensation to the employee. Although the consultancy company was a services company engaged by the employer, the Court ordered the same penalty because the consultancy company had been “integrally involved in the determination of the relevant strategic and operational steps associated with offering the AWA.”
HR Tip:
The ability of an employer to offer AWAs to employees ceased on 28 March 2008. Employers who used AWA’s in their business as at 1 December 2007 can now use Individuals Transitional Employment Agreements (ITEAs). Importantly, the law prohibits the application of duress in connection with the making of an ITEA. The law specifically states that it is not duress for an employer to make the employment of a prospective employee conditional upon the employee entering into an ITEA. However, this protection for employers does not apply in the case of a transferring employee. Employers, IR Consultants and advisers will need to take care to ensure that duress is not applied to employees when offering an ITEA.
Consultancy company penalised for AWA duress - To learn more about this author, visit Jason Donnelly's Website.
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In this case, an employer contracted a consultancy company to assist in offering AWAs to transferring employees after the employer took over a supermarket business. A transferring employee was interviewed by the consultancy company and was offered an AWA. The employee claimed to have raised a number of concerns in relation the terms and conditions in the AWA, including the absence of penalty rates and the existence of a probation period. Despite these concerns, the employee was told by the consultancy company that she would not be employed if she did not sign the AWA.
The Court held that the consultancy company and the employer had jointly developed a plan to offer standard AWAs with set terms and conditions. There was no room for the employee to negotiate different terms and conditions under the AWA, or a different industrial instrument. The transferring employee had to sign the AWA to keep her position in the company. In addition, if the employee accepted the AWA, she would have been subject to a 3 month probation period for her current role. The Court found that in these circumstances, there was application of duress by the consultancy company and the employer.
Both the employer and the consultancy company were penalised $6,700 each and were jointly and severally liable for $983.40 compensation to the employee. Although the consultancy company was a services company engaged by the employer, the Court ordered the same penalty because the consultancy company had been “integrally involved in the determination of the relevant strategic and operational steps associated with offering the AWA.”
HR Tip:
The ability of an employer to offer AWAs to employees ceased on 28 March 2008. Employers who used AWA’s in their business as at 1 December 2007 can now use Individuals Transitional Employment Agreements (ITEAs). Importantly, the law prohibits the application of duress in connection with the making of an ITEA. The law specifically states that it is not duress for an employer to make the employment of a prospective employee conditional upon the employee entering into an ITEA. However, this protection for employers does not apply in the case of a transferring employee. Employers, IR Consultants and advisers will need to take care to ensure that duress is not applied to employees when offering an ITEA.
Consultancy company penalised for AWA duress - To learn more about this author, visit Jason Donnelly's Website.
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David AchesonDavid Acheson is the founder of DCJA Consultancy. DCJA Consultancy is a management consultancy business specialising in B2B sales consultancy. They offer bespoke and packaged sales consultancy including Sales Optimisation Review, Interim Sales Management, Sales & Marketing Review, 1:1 Sales & Management Staff Analysis, Management Training, Solution Sales Training, Creation of New Pay Plan, KPI's, run Customer Feedback Campaigns, assist with Recruitment, Coaching, Appraisals and set up Strategic Marketing Campaigns. David spent his early career in accountancy and then moved into sales in 1982, working in Office Equipment, IT, Advertising, Training, Outsourcing and Consultancy. He has held many Senior Positions in SMBs and Global Organisations including Head of Sales Operations & Head of Business Development. His knowledge, skills and great experience of the Sales Industry has led to David making keynote speeches and running educational sessions to key businesses through organisations including The Chamber of Commerce and Business Link. - Visit David Acheson's Website |
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John PowerJohn Power, founder of Biltmore Franchise Consulting, has extensive experience developing and marketing franchises and business opportunities. He has been in and around franchising for over twenty years. From 1980 through 1990 he conceptualized, organized, and developed the American Video Association. He grew AVA to 2,000 national members, before selling the company it 1990. It was later merged into another home video marketing company. From 2000 to 2005 he worked as a contract marketing and human resources consultant to several local and national companies. In 2005 Mr. Power began working as a franchise development consultant on a full-time basis. Since that time he has helped more than three dozen companies initiate and develop their franchising program. He notes that there are many companies interested in developing a franchise program, and who need his specialized assistance. Mr. Power is a “hands-on” franchise consultant. He said, “I am the ‘nuts and bolts’ person who tends to the details for my clients.” Mr. Power holds a B.S. degree with a major in Marketing. See: www.biltmorefranchise.com You may contact Mr. Power at: jpower@biltmorefranchise.co - Visit John Power's Website |
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Anne BarrAnne Barr has over 26 years experience in sales and marketing, six years as a franchisee. She has assisted over 367 business owners and purchasers to achieve their goals in career change, transition and exit strategy. She holds the designation of Certified Franchise Executive from the International Franchise Association, Certified Business Intermediary from the International Business Brokers Association and Board Certified Broker from the Texas Association of Business Brokers. Anne is active in professional organizations, networking groups and volunteers for non-profit entities. As owner/operator of four successful businesses, Anne has proven people skills and enjoys helping clients find the right "fit" in business ownership. Visit www.FranchiseOpportunitySpecialist.com for more information about me and my company. - Visit Anne Barr's Website |
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Dave KurlanDave Kurlan is the founder and CEO of Objective Management Group, Inc., the industry leader in sales assessments and sales force evaluations, and the CEO of David Kurlan & Associates, Inc., a consulting firm specializing in sales force development. Dave has been a top rated speaker at Inc. Magazine's Conference on Growing the Company, the Sales & Marketing Management Conference and the Gazelles Sales & Marketing Summit. He has been featured on radio and TV, including World Business Review with General Norman Schwarzkopf, in Inc. Magazine, Selling Power Magazine, Sales & Marketing Management Magazine and Incentive Magazine. He is the author of Mindless Selling and Baseline Selling – How to Become a Sales Superstar by Using What You Already Know about the Game of Baseball. He created and wrote STAR, a proprietary recruiting process for hiring great salespeople, and he writes Understanding the Sales Force, a popular business Blog and is a contributing author to The Death of 20th Century Selling and 101 Great Ways to Improve Your Life, Volume 2. - Visit Dave Kurlan's Website |
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Staging DivaDebra Gould, aka The Staging Diva®, is President of Six Elements Inc., an internationally recognized home staging company. Inspired by many requests from aspiring home stagers wanting to start similar businesses, Gould created the Staging Diva Home Staging Business Training Program. Gould has trained over 1000 Staging Diva Graduates worldwide to start staging businesses. Buying decorating and selling six of her own homes in four years lead to an interest in real estate staging which she turned into a career with the launch of sixelements.com in 2002. Since then she has staged hundreds of homes in addition to teaching home staging training. Gould is the author of several home staging resources including a series of popular ebooks made up of a Design Guide, Color Guide and Portfolio Guide. For more information about Debra Gould visit stagingdiva.com. - Visit Staging Diva's Website |
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Linda RichardsonLinda Richardson is the Founder and Executive Chairwoman of Richardson, a global sales training and performance improvement company. As a recognized leader in the industry, she has won the coveted Stevie Award for Lifetime Achievement in Sales Excellence and she was identified by Training Industry, Inc. as one of the “Top 20 Most Influential Training Professionals.” Ms. Richardson is credited with the movement to Consultative Selling and is the author of ten books on selling and sales management, including Sales Coaching — Making the Great Leap from Sales Manager to Sales Coach, and Stop Telling, Start Selling. She teaches sales and management at the Wharton Graduate School of the University of Pennsylvania and the Wharton Executive Development Center. Linda is a frequent speaker at industry and client conferences, has been published extensively in industry and training journals, and has been featured in numerous publications, including The Wall Street Journal, Forbes, Nation’s Business, Selling Power, Success, and The Conference Board Magazine. Learn more about Richardson's sales training and performance improvement solutions at http://www.richardson.com web - Visit Linda Richardson's Website |
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