JOBNAME: No Job Name PAGE: 1 SESS: 1 OUTPUT: Thu Jul 17 11:29:34 2003 /journals/journal/ajll/vol12/07-00204 Recent Cases ‘Take It Or Leave It’ AWAs: A Question of Duress? Joo Cheong Tham * Australian Services Union v Electrix Pty Ltd (Fed C of A, Marshall J, 11 March 1999, unreported) Introduction A radical feature of the Workplace Relations Act 1996 (Cth) (‘WR Act’) is that it creates a new legal form of employment relationship: the Australian Workplace Agreement (‘AWA’). An AWA is essentially a statutory individual contract that can oust collective forms of legal regulation, for example, awards and certified agreements (s 170VQ of the WR Act). At the time the WR Act was introduced, the federal Minister for Industrial Relations, Peter Reith, stated that: [T]he options for agreement-making will be significantly expanded.... For those who want formalised individual agreements, we have provided Australian Workplace Agreements (2nd Reading Speech of the Workplace Relations and Other Legislation Amendment Bill 1996 (Cth) in Commonwealth, Parliamentary Debates, House of Representatives, 23 May 1996, 1300). A recent Federal Court decision has cast some doubt on this rhetoric of greater options and choice. In Australian Services Union v Electrix Pty Ltd (Fed C of A, Marshall J, 11 March 1999, unreported) (‘ASU case’), Marshall J indicated that, on the particular facts,AWAs were to be used as a vehicle for reducing labour costs and were possibly imposed on employees in circumstances of duress. So, instead of providing expanded options in that case,AWAs were arguably a tool of compulsion, the antithesis of choice. The Australian Services Union’s (‘ASU’) action was an application for an interlocutory injunction pursuant to s 170VZ of the WR Act. Being interlocutory in nature, the ASU case lacks precedential value, but the questions it raises about AWAs and duress are challenging and of substantial interest. This case-note sets out to briefly describe the case and canvass the questions raised. Factual Background The factual circumstances in the ASU case arose out of the context of corporatisation and out-sourcing in Victoria’s electrical power industry. Prior to December 1997, Powercor Australia (‘Powercor’), the corporatised * Centre for Employment and Labour Relations Law, The University of Melbourne. 1