Leslie Massey
Coercion is the act of organising or taking action, or threatening to do so, against someone with the intention of influencing that person to do something. In Australia, certain kinds of coercion are unlawful under the provisions of the BCIIP Act and the general protections provisions in the FW Act. Coercion in the workplace is also unlawful and is considered a breach of the Fair Work Act. Coercive control, a form of domestic violence, is now illegal in Queensland, with perpetrators facing a maximum penalty of 14 years in prison.
| Characteristics | Values |
|---|---|
| Coercion in workplace | Unlawful under the Fair Work Act |
| Coercion in family and domestic violence | Recognised by the Australian Government as a pressing issue |
| Coercion in Queensland | Illegal with a maximum penalty of 14 years in prison |
| Coercion in Tasmania, Australian Capital Territory, and Northern Territory | Outlawed under the states' family violence acts |
| Coercion in Victoria | Criminalised under general family violence laws |
| Coercion in South Australia | The government has committed to criminalising it |
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What You'll Learn
Coercion in employment law
In Australia, the Fair Work Commission is the tribunal responsible for resolving issues related to coercion in the workplace. The Commission has outlined several cases that provide insight into what constitutes coercion and the subsequent penalties.
For instance, in the case of Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011], the respondent threatened the applicant, stating that if they did not sign an individual flexibility agreement, they would be treated as a casual employee, resulting in a loss of standard hours and employment benefits. The Court found that the respondent intended to coerce the applicant and ordered a pecuniary penalty of $25,000.
In another case, Evangeline v Department of Human Services [2013], the applicant alleged coercion when given the choice between taking a month of unpaid leave or facing dismissal for an OH&S breach. The Court ruled that the respondent offered a choice and did not negate the applicant's freedom of decision-making.
It is important to note that persuasion can turn into coercion when an individual threatens to take away something from another person or prevents them from obtaining an advantage they would typically have. This distinction is crucial in understanding the nuances of coercion in employment law.
The Fair Work Act provides employees with protected rights, including the right to be free from discrimination, misrepresentation, and adverse action for using their workplace rights. These protections ensure that employees can exercise their workplace rights without facing coercion or adverse consequences.
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Coercive control in family law
Coercive control is a pressing issue in Australia that requires a coordinated national approach. The Australian Government has recognised coercive control as an almost inevitable dynamic of family and domestic violence. It involves perpetrators using patterns of abusive behaviours over time to create fear and deny liberty and autonomy. The abuse can be physical or non-physical, or a combination of both, and can have traumatic and pervasive immediate and long-term impacts on victims, their families, and communities.
The National Principles to Address Coercive Control in Family and Domestic Violence were developed in collaboration with all state and territory governments to address this issue. These principles aim to create a shared national understanding of coercive control, improve societal awareness, and inform more effective responses to family and domestic violence. They are designed to be used by government and non-government organisations involved in addressing coercive control.
Coercive control can manifest in various ways, including controlling a person's social life, monitoring their activities, restricting their finances, medication, food, or exercise, regularly criticising or blaming them, and forcing them to engage in sexual acts. It can be challenging to identify the signs of coercive control as they can be subtle and targeted. Victims may feel trapped, afraid, and unsure if they are being abused, especially if the abuse is non-physical.
To address these issues, the NSW Government has implemented legislative reforms, allocating funding to improve bail laws, justice system responses, and support services for victim-survivors. The Crimes Legislation Amendment (Coercive Control) Bill 2022 in NSW makes coercive control in current and former intimate partner relationships a criminal offence as of 1 July 2024. Additionally, support services such as 1800RESPECT, the Sexual, Domestic and Family Violence Helpline, and the Kids Helpline are available to provide assistance to those impacted by coercive control and family violence in Australia.
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Criminal penalties for coercion
Coercion, or coercive control, is recognised by the Australian Government as a pressing issue that requires a coordinated national approach. While the laws and penalties related to coercion vary across different states in Australia, here is an overview of the criminal penalties for coercion, specifically in the context of family and domestic violence, and workplace rights.
New South Wales (NSW)
In NSW, the Crimes Legislation Amendment (Coercive Control) Act 2022 came into effect on 1 July 2024, making coercive control in current and former intimate partner relationships a criminal offence. The maximum penalty for coercive control in NSW is seven years' imprisonment.
Queensland
Queensland followed NSW and criminalised coercive control under the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023. This legislation was passed by the Queensland Parliament on 6 March 2024, and the maximum penalty for coercive control in this state is 14 years' imprisonment.
Tasmania, Australian Capital Territory, and Northern Territory
In Tasmania, the Australian Capital Territory, and the Northern Territory, aspects of coercive control are addressed under their respective family violence acts. While these laws do not specifically mention "coercive control," they encompass various forms of family violence, including coercive behaviours.
Workplace Coercion
The Fair Work Commission, Australia's workplace tribunal, handles cases of coercion in the workplace. For example, in the case of Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064 (6 September 2011), the respondent was ordered to pay a pecuniary penalty of $25,000 for threatening the applicant with a change in employment status if they did not sign an individual flexibility agreement. This was found to be an attempt to coerce the applicant regarding their workplace rights.
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Coercion in the Fair Work Act
The Fair Work Act grants employees protected rights, known as "general protections". These rights encompass various aspects of employment, including workplace laws, instruments, and agreements. Disciplinary actions and performance management must be conducted reasonably and lawfully, and employees have recourse if they believe their rights have been violated.
In the case of Evangeline v Department of Human Services [2013] FWC 807 (28 June 2013), applicants alleged that their employer coerced them by threatening dismissal if they did not agree to take one month of unpaid leave as disciplinary action. The Court found that the employer offered a choice rather than negating it. However, in Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064 (6 September 2011), the Court ruled that the respondent threatened to take action with the intent to coerce the applicant to exercise their workplace rights in a particular way. The respondent was ordered to pay a pecuniary penalty.
It is important to note that coercion may take various forms and can be subtle. Employees who believe they have been subjected to coercion or adverse action can seek assistance from the Fair Work Commission. They may be eligible to raise a general protections dispute, even if they have not been dismissed.
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Coercion in the BCIIP Act
Coercion in the workplace is unlawful in Australia. The Fair Work Commission is Australia's workplace tribunal, which helps resolve issues at work.
Coercion is the act of organising or taking action, or threatening to organise or take action against someone with the intent to influence that person or another person to do something. It interferes with a person's freedom of choice.
Under the Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) and the general protections provisions in the Fair Work Act 2009 (FW Act), coercion in the building and construction industry is unlawful. The BCIIP Act provides for the regulation of labour relations in the building and construction industry, in addition to the regulation that otherwise applies under the FW Act. It further restricts the right to strike for workers, limits the types of agreements that employers and unions can create, increases penalties in the industry, and provides for separate enforcement and oversight in this sector.
The BCIIP Act increases the penalties for contraventions of certain offences under the FW Act for building industry participants, including offences relating to coercion. It is unlawful for an employer, fellow employee, or union to coerce an employee to exercise or not exercise their workplace rights. For example, it is unlawful to coerce an employee to employ or not employ a person as a building employee, or engage or not engage a person as a building contractor.
A court may order a party found to have engaged in coercive conduct to compensate the coerced party for any losses suffered.
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Frequently asked questions
Coercion is the act of organising or taking action, or threatening to organise or take action against someone with the intent to influence that person or another person to do something. It interferes with a person's freedom of choice.
Certain kinds of coercion are unlawful under the provisions of the BCIIP Act and the general protections provisions in the FW Act. It is unlawful for an employer, fellow employee or union to coerce an employee to exercise or not exercise their workplace rights.
Coercive control involves perpetrators using patterns of abusive behaviours over time in a way that creates fear and denies liberty and autonomy. It can be physical or non-physical and includes emotional, psychological, and financial abuse, along with isolation, intimidation, sexual coercion, and cyberstalking.
