The Federal Government has announced its intention to amend the
Fair Work Act 2009 (FW Act) in response
to the three-member panel's review of the FW Act in August this
year, which we analysed in our
The Government has also introduced two bills to replace the
current general employee entitlements and redundancy scheme
(GEERS) with an equivalent legislative scheme and
to extend transfer of business protections to state public
PROPOSED CHANGES TO THE FW ACT IN RESPONSE TO THE PANEL'S
The proposed changes to the FW Act represent the
Government's initial response to the three-member panel's
review of the FW Act in August this year. If accepted, the proposed
changes accept the panel's less controversial recommendations
and will implement roughly a third of the 53 recommendations.
The most significant of the proposed changes include to:
change the name of Fair Work Australia (FWA),
most likely to the "Fair Work Commission";
align the time limit for lodging unfair dismissal applications
and general protections (adverse action) claims involving a
dismissal to 21 days. This means that the existing time limits for
lodging applications will be increased from 14 to 21 days for
unfair dismissal claims, and decreased from 60 to 21 days for
general protections claims involving a dismissal;
allow unfair dismissal applications to be struck out if the
parties have reached a settlement, or if an applicant fails to
attend a proceeding or fails to comply with directions/orders;
enable costs orders to be made against a party that
unreasonably fails to discontinue proceedings or causes the other
party to incur costs;
prohibit enterprise agreement clauses permitting individual
employees to opt-out of coverage of the agreement altogether and
move to more individually rewarding contract arrangements;
ban the making of an enterprise agreement with only one
enable the striking out of frivolous or vexatious modern award
allow a broader range of parties to make modern award variation
applications to remove ambiguities or uncertainties;
require applicants for "scope orders" to take all
reasonable steps to notify other relevant bargaining
representatives of the application. These types of orders allow FWA
to determine the scope of coverage of a proposed enterprise
agreement, if a party requests it, where the parties themselves are
unable to agree;
restrict the content of employee bargaining representative
notices to the matters prescribed in the FW Act; and
prevent an individual union official being a bargaining
representative for employees in an enterprise agreement
negotiation, for whom the official's union does not have
Some more controversial recommendations made by the panel remain
the subject of consultation with employer and employee groups, and
include recommendations to make arbitration available in deadlocked
greenfield agreement negotiations, and to extend the right of
employees to seek flexible working arrangements in a wider range of
The Government has said that a second tranche of changes to the
FW Act may be introduced early next year if agreement can be
reached on the panel's other recommendations.
SEPARATE CHANGES TO THE FW ACT TO COVER STATE PUBLIC
The Fair Work Amendment (Transfer of Business) Bill
2012 seeks to amend the FW Act to provide for the protection
of employees' terms and conditions of employment when they are
"transferred" from a state public sector employer to a
national system employer.
For those protections to apply there must be a connection
between the old and new employers, which will include a transfer of
assets or an outsourcing arrangement.
The protection will be achieved through the creation of a new
federal instrument that effectively "copies" the existing
terms and conditions in the relevant state award or agreement. This
will mean that private sector employers who employ former state
government employees to perform similar work may, in certain
circumstances, be covered by the new instrument.
Equivalent laws already cover public sector employees in
Victoria, the Australian Capital Territory and the Northern
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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