Industrial Disputes

Important Changes to the Fair Work Act

The Fair Work Amendment Act 2012 received Royal Assent on 4 December 2012 and took effect as at 1 January 2013, writes TGB's Belal Moraby.

The Fair Work Amendment Act 2012 received Royal Assent on 4 December 2012 and took effect as at 1 January 2013, writes TGB’s Belal Moraby.

It was effectively the Government’s first significant response to recommendations made by the Fair Work Review Panel in its June 2012 report on the operation of the Fair Work Act 2009 (Cth) (“the Act”).

The name Fair Work Commission (FWC) will replace Fair Work Australia.

The time limit for lodging unfair dismissal applications will increase from 14 to 21 days whilst the time limit to lodge general protection claims will be reduced from 60 days to 21 days.

This change will apply to dismissals that take effect after 1 January 2013.  Employees dismissed prior to 1 January 2013 who wish to lodge an unfair dismissal or general protection dismissal application will still have 14 days and 60 days respectively from the date of the dismissal to lodge an application.

The Commission will have greater power to award costs against parties, lawyers and paid agents.  If the FWC is satisfied that a party’s unreasonable act or omission has caused the other party to incur costs, a Cost Order may be made against that party.  This may include conduct such as a failure to agree to terms of settlement or an unreasonable rejection of a settlement offer.

The FWC will also have broader powers to dismiss applications where the Commission is satisfied that the applicant has pursued a claim in an improper or unreasonable manner, failed to attend a conference or hearing, or failed to comply with a direction or order.

The Act provides that enterprise agreements cannot be made with a single employee.  Any term of an enterprise agreement allowing an employer or employee to “opt out” of agreement coverage will be deemed an unlawful term under the Act.  This amendment applies to all enterprise agreements irrespective of whether they commenced operating before the amendments.

An individual union official will not be able to act as a bargaining representative of an employee if the union does not have constitutional coverage of the employee.

Employers cannot modify the notice of employee representational rights prescribed by the regulations and any notice of employee representational rights will only be able to include the content prescribed by the regulations.

Schedule 1 of the Act introduces a process whereby the FWC will review default superannuation funds terms in modern awards.  This review will be conducted every four years and the aim of the review is to ensure that only superannuation funds operating in the best interests of employees will be included as default funds in modern awards.

If you would like to consider all of the legislative changes see the Fair Work Amendment Act 2012 .

For a discussion about your employment issue contact your nearest TGB location