The Fair Work Amendment Act 2012 received Royal Assent on 4
December 2012, with several of the changes coming into effect from
1 January 2013.
In addition to renaming Fair Work Australia the Fair Work
Commission, other key changes include:
Changes to Unfair Dismissal
The time limit for lodging an unfair dismissal application has
increased from 14 to 21 days (for employees dismissed after 1
The Fair Work Commission has the ability to dismiss an
application based on unreasonable conduct of the applicant e.g. if
the applicant fails to attend a conference or a hearing, fails to
comply with a direction or order, or fails to discontinue the claim
once the parties have concluded a settlement agreement.
The Fair Work Commission has the power to order costs against a
party, where that party has caused the other party to incur costs
by acting unreasonably e.g. by failing to agree to terms of
settlement that could have led to resolution of the
The Fair Work Commission has the power to make costs orders
against lawyers and paid agents.
Changes to General Protections
The time limit for lodging a general protections dismissal
application has been reduced from 60 to 21 days (for employees
dismissed after 1 January 2013).
. A range of changes in relation to making new enterprise
agreements including, for example, that an enterprise agreement
cannot be made between an employer and a single employee.
Many of these changes should be welcomed by employers. In
particular, the expanded powers of the Fair Work Commission in
dealing with unfair dismissal claims should provide a deterrent
against unreasonable conduct by the applicant during proceedings,
as well as a deterrent against lawyers or paid agents encouraging
applicants to pursue speculative or hopeless unfair dismissal
Also, because the time limit for dismissal-related general
protections applications and unfair dismissal applications will be
aligned, employees will now need to decide whether to lodge an
unfair dismissal or a general protections claim (rather than one
followed by the other; or the pursuit of a general protections
claim that should properly have been brought as an unfair dismissal
claim). This will provide greater clarity for employers on the
types of clams they may be exposed to and it should enable claims
to be resolved more quickly.
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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