The Fair Work Amendment Act 2012 (Cth) (FWA
Act) received Royal Assent on 4 December 2012. The FWA Act
implements a number of recommendations from the independent Fair
Work Act Review, and other changes arising from the Minister's
consultation with stakeholders such as members of the National
Workplace Relations Consultative Council, small business
representatives, the Fair Work Ombudsman and Fair Work Australia.
Many of the changes came into effect on 1 January 2013.
There are four key elements to the FWA Act:
Changes to the unfair dismissal regime;
Changes to the structure and operation of Fair Work
Establishing an expert panel to conduct the annual minimum wage
review and to determine the most suitable funds to be listed as
default funds in modern awards; and
Other technical and clarifying amendments.
Time limits on unfair dismissal and general protections
The timeframes for making unfair dismissal claims and general
protections dismissal claims have been aligned at 21 days. This
represents an extension of the time period within which unfair
dismissal claims must be made under s 394(2)(a). Currently, these
claims must be made to Fair Work Australia within 14 days of the
The time period within which a general protections claim
(arising from termination) must be brought has been reduced under
the changes to s 366(1)(a) from the current 60 days from the date
termination takes effect.
These changes should be welcomed by employers, as employees will
now need to decide whether to lodge an unfair dismissal or a
general protections claim.
Costs in unfair dismissal claims
The Commission is now able to make a costs order against a party
in an unfair dismissal matter if it is satisfied that the first
party caused the other party to incur costs because of an
unreasonable act or omission by the first party (amendment s 400A).
This recommendation reflects concerns that unscrupulous lawyers or
agents are encouraging dismissed employees to pursue unfair
dismissal claims without merit on a no-win, no-fee basis.
Fair Work Australia
With the passing of this legislation, Fair Work Australia has
been renamed the Fair Work Commission. There are also now two
vice-presidents in the newly named Commission, in order to attract
more senior specialists. The criteria for appointment of Vice
Presidents will be the same as for the President of Fair Work
Australia, and appointments to these senior positions within the
Fair Work Commission will follow a merit based selection
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 FWA Act's proposal to insert a new s 149C
requiring each modern award to contain a default fund term.
A new process will determine the most suitable funds to be
listed as default superannuation funds in modern awards to meet the
principles and model outlined by the Productivity Commission.
The FWA Act also implements several technical and clarifying
recommendations made by the Fair Work Act Review, including:
Prohibiting opt-out clauses in enterprise agreements;
Clarifying that statutory enterprise agreements cannot be made
with a single employee;
Clarifying notification requirements for scope order
Clarifying what may be included in a notice of representative
rights to employees;
Prohibiting an individual union official being a bargaining
representative of an employee where the union does not have
Clarifying when a modern award variation application can be
struck out and who can apply for a modern award to be varied;
Clarifying how protected action ballots can be conducted, while
preserving the existing strict requirements and processes around
when protected industrial action can be taken.
Please do not hesitate to contact us if you require any
clarification on the impact of these changes.
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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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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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