After being recently passed by the House of Representatives, the
Fair Work Amendment Bill 2012 is currently being
considered by the Senate's Education, Employment and
Workplaces Relations Legislative Committee, with a reporting
date of 26 November 2012. The Bill was drafted in response to the
Fair Work Act Review completed in August of this year and
picks up on some of the Review Panel's 53 recommendations.
TIME LIMITS ON CLAIMS
The most high profile proposed change is the extension of the
time period within which unfair dismissal claims must be made under
s 394 (2) (a). Currently such claims must be made to Fair Work
Australia within 14 days of the dismissal. The Bill proposes
to extend this to 21 days.
The time period within which a general protections claim
(arising from termination) must be brought has however been reduced
under proposed changes to s 366 (1) (a), from the current 60 days
from the date termination takes effect, to 21 days.
COSTS IN UNFAIR DISMISSAL
The Bill proposes that the Commission would be able to make a
costs order against a party in an unfair dismissal matter if the
Commission is satisfied that the first party caused the other party
to incur costs because of an unreasonable act or omission by the
first party. This change would be achieved through proposed s 400A
to the Act. Costs provisions already exist in unfair dismissal
cases with respect to lawyers who unreasonably increase costs or
encourage unmeritorious claims.
A NEW NAME
Under the proposed changes, the name of Fair Work
Australia is to change to the Fair Work Commission to
more properly reflect the work it undertakes. There will also be
two vice-presidents in the newly named Commission, in order to
attract more senior specialists.
A significant change is the introduction of default
superannuation funds for employees who do not nominate their own
superannuation fund and are covered by a modern award. This is
reflected in the Bill's proposal to insert a new s 149C
requiring each modern award to contain a default fund term. It is
envisaged by Mr Shorten, the Minister for Financial Services
and Superannuation and Minister for Employment and
Workplace Relations, that modern awards would contain 2-10
default superannuation funds for employers to choose from.
The Commonwealth Public Sector Superannuation Accumulation
Plan and state public sector schemes would be exempt from the
default fund requirement. The Fair Work Commission's newly
created Expert Panel would determine according to performance,
which superannuation funds were listed among the default
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.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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