Every day decisions at work and home are influenced by all manner of people and events. Pressure to choose one particular course of action over alternatives is just a fact of life. There is even a new career option of ‘Online Influencer’ that pushes us to purchase goods and services. However, exercising undue influence or undue pressure on employees can land employers in big trouble.
Employers must not exert undue influence or undue pressure on an employee to take time off work instead of overtime payment, agree to, or terminate an individual flexibility arrangement, make an agreement concerning the NES, or agree, or not agree, to a deduction from amounts payable to the employee about the performance of work.
There is no particular difficulty with the word pressure or influence. It is the word “undue” which is problematic.
What is Undue Influence or Undue Pressure
Dictionaries tell us that undue may infer a sense of going beyond what is warranted, or excessive in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable. Undue conduct relates to conduct that is ‘unwarranted, excessive, unfitting, improper or unjustified’. Pressure relates to harassment or oppression in some form.
Undue influence or undue pressure is not defined by the Fair Work Act 2009, but the decisions of the court indicate that its ordinary meaning must be taken along with consideration of the relevant circumstances of each case. Thus, in determining what may be taken as undue, the context must be considered when analysing if the conduct is excessive or unjustified. This is different from coercion, which requires intentional pressure to negate choice and requires the relevant conduct to be unlawful, illegitimate, or unconscionable.
Therefore, in the context of the employment relationship, an employer must not conduct themselves in a manner that puts significant pressure on the employee, for example, to work additional hours or agree to IFA terms or other decisions with a choice under the NES. More specifically, the context that must be considered are:
- The tone and manner in which the employer communicates the direction (e.g., stating ‘I just need you to sign this’ may be evidence of undue pressure, depending on the tone it is communicated).
- The immediate environment that the employee is in (e.g., unequal power relationship with employer )
- Relevant individual circumstances of the employee e.g., seniority or age of the employee
- Opportunity to seek advice before agreement
- Is there an adverse inference or implied threat to agree or not agree
What does this mean for you?
Although the Fair Work Commission generally conflates both undue pressure and undue influence, each of the terms is distinct. But the overarching element to each of these is the loss of free will. This means employers intentionally manipulating employees to influence their decisions, thereby compromising the employees’ ability to act freely.
Lessons for Employers
- When making agreements with an employee, communicate in a manner and tone that does not cause an employee to feel pressured in any way.
- Refrain from engaging in conduct or practices that pressure employees to work beyond their standard hours
- Employees now have greater protections against undue pressure and can exercise their rights to refuse overtime work and accepting payment or taking time off in lieu, without fear of adverse consequences.
- Foster a supportive and respectful work environment that prioritizes employees’ well-being and respects their work-life balance. The probability of obtaining agreement on your business priorities is greater when you adopt this approach.
For more information regarding the application of this to you and your business contact us