Australia: The Workplace Solutions Group considers the Fair Work Act Review Report

Last Updated: 20 August 2012

The recently released Report of the Independent Panel conducting the Review of the Fair Work Act -- "Towards more productive and equitable workplaces; an evaluation of the Fair Work legislation" has attracted very considerable comment, much of it is politically motivated. As industrial relations has been at the epicentre of Australian politics since before Federation, it is hardly surprising, indeed inevitable, that the Report would attract a lot of politically motivated comment.

But what do you - our clients - need to know about the Report, with all the political rhetoric and posturing about what it does or does not say or recommend, put to one side?

There are a few things at the "big picture" level, and some minutiae that are interesting. Our comments are interwoven in the text that follows.

At the "big picture" level, this much is reasonably clear.

First, the Panel have found that, looked at overall, the Fair Work Act is operating broadly as was intended.

[We at Workplace Solutions are not surprised by that finding.]

Second, the Panel was not persuaded that the recent slow down in productivity levels in Australia can be attributed to the Act.

[We think the Panel's arguments in that regard are quite cogent - productivity has been on the wane since before WorkChoices!]

Third, over the last 20 years there has been a very substantial change in the Australian framework for wages, working conditions and employment, with the focus moving away from compulsory conciliation and arbitration of disputes to enterprise bargaining underpinned by a safety net of minimum conditions, recognition of the right to strike in pursuit of collective agreement, and limits on access to arbitration. Those changes, the Panel believes, have delivered outcomes conducive to our economic prosperity, and are not to be lightly put at risk.

[This is a bit of a lecture to stakeholders, but at least it is based on evidence not political ideology.]

Fourth, the Panel was not persuaded to recommend all or most of the major changes to the Act that employer representatives were pressing for mainly because the employers did not produce tangible evidence to demonstrate that what they say were real deficiencies (or major omissions) either existed or required the wholesale changes they sought.

[Again, not surprising - the terms of Reference for the Review made it clear that complaints of deficiencies in the Act had to be supported by evidence, not anecdotes or ideology.]

Fifth, the Panel recommended that the national tribunal get a different name other than "Fair Work Australia" because, they thought, it was confusing bearing in mind all the ways in which the rubric "fair work" is used in the legislation. Something with the word "Commission" would be much preferable.

[Excellent recommendation as far as we are concerned - and they are agreeing with the new President of the tribunal, Justice Iain Ross.]

As to the minutiae ?

There are 53 recommendations. Many of them go to matters of detail and some are far more significant than others. Without being exhaustive, those recommendations that appear to have the most significance for all employers and employees (remembering that about 80% of the workforce is un-unionised) are in our view as follows.

  1. The time limit for bringing unfair dismissal claims should be extended from 14 days back to the original time limit when unfair dismissal laws were first brought into Federal law in 1994 - 21 days from the date of dismissal.

    [This is OK when coupled with the next item.]
  2. On the other hand, the time limit for bringing a general protections claim (generally known as an "adverse action" claim) should be brought back to 21 days from the current 60 days - ie the same as for unfair dismissal.

    [A good recommendation - the 60 day limit is too long and could be used to get around the 14 day unfair dismissal time limit. It also prevents people having "two bites of the cherry" - bring an unfair dismissal claim and if you don't settle at conciliation, discontinue and bring an adverse action claim. That was not good.]
  3. There should be a reintroduction of the previous provisions whereby an unsuccessful party in an unfair dismissal or adverse action claim could be exposed to an order to pay the other party's costs if that unsuccessful party had unreasonably failed to discontinue proceedings, or agree to terms to settle the matter or through a party's unreasonable conduct caused the other party to incur costs.

    [Another good recommendation - if there should be a widely available right to bring an unfair dismissal claim, then there should also be a risk that unreasonable behaviour will result in a costs penalty. It is probably the only way to try to reduce 'go away money'.]
  4. The National Employment Standards ought be amended to make it clear that an employee's period of work on workers' compensation would not count toward the accumulation of leave entitlements.

    [We agree with this too - it will avoid the current uncertainties and it is very hard to see why an employee should be accumulating leave entitlements over what might well be a lengthy period of incapacity.]
  5. The notice period for termination of an Individual Flexibility Agreement ought be extended from the current 28 days, to 90 days.

    [This is an improvement, but that change but plus some other minor changes the Panel suggests may help to make IFAs a little more attractive than they are now.]

What about more arbitration?

Since the Qantas dispute that resulted in the grounding of its fleet last October, there has been an ever growing discussion about whether Australia needs to make arbitration of industrial disputes more available than it is under the current system (particularly for long running disputes or situations where employees lack bargaining power). The Panel did not recommend any significant change, which was a slight surprise.

Did some opportunities get missed?

That is a matter of opinion - but as the Panel was in reality a technical rather than a broad policy review of an Act that is less than three years old, it is hard to be very critical if one is being totally fair (as distinct from undertaking a political exercise).

One matter we think should have resulted in a recommendation for change was the decision in Hull & Moody that in effect allows an enterprise agreement to make provision for annual leave pay to be paid in advance, so that employees end up taking annual leave without panel. The Panel had misgivings about it, and hoped it does not become widespread, but did not recommend legislative change to stop it happening. We respectfully believe it is just totally inconsistent with the whole concept of annual leave, as it will tend to discourage employees taking their entitlement to leave for the purpose it is conferred. The initiative does help to reduce or eliminate excess accumulations of leave, but employers have the ability to manage that anyway. We hope, along with the Panel, that the practice does not become widespread.

But how much will actually change?

The Federal Government has said it will consult with stakeholders before moving any amendments to federal law in response to the Panel's Report. Many of the Recommendations seem to be uncontroversial and we would hope that they will be implemented in due course, maybe by the start of next year. However some of the Recommendations will be resisted by employer organisations or unions, so the political climate may result in some of the recommendations being "too hard" this side of the next scheduled Federal election (probably a year or more off).

More comments to come...

In future bulletins we will look at particular aspects of the Report in more detail and provide our analysis. If you have any questions to ask about any aspect of the Report, or how its Recommendations, if implemented, might affect your situation, please contact Peter or any member of our Workplace Solutions Group.

Workplace Solutions group

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions