By Chloe Charlton

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

  1. The time limit for lodging an unfair dismissal application has increased from 14 to 21 days (for employees dismissed after 1 January 2013).
  2. 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.
  3. 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 application.
  4. The Fair Work Commission has the power to make costs orders against lawyers and paid agents.

Changes to General Protections

  1. 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).

Enterprise Agreements

  1. . 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 claims.

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.

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