Fair Work Act changes have started


Fair Work Act changes have started

Last year, the Federal Government undertook a review of the Fair Work Act. Some of these changes will have real impact on how the system operates. These changes commenced on 1 January 2013.


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Last year, the Federal Government undertook a review of the Fair Work Act, with an expert panel recommending a number of changes. The government has now implemented the first suite of changes to the Act, many of which are technical in nature. However, some of these changes will have real impact on how the system operates. These changes commenced on 1 January 2013.

The main changes are summarised below.

The Commission makes a comeback

Fair Work Australia has been renamed as the Fair Work Commission.

Unfair dismissal and general protections

Extension of time limits

The time limit for lodging unfair dismissal applications have increased from 14 to 21 days. At the same time, the time limit for lodging a general protections application about a dismissal has been reduced from 60 to 21 days. Part of the motivation behind this change in timeframes is to stop ‘forum shopping’ by requiring applicants to determine at the outset which claim (ie an unfair dismissal or a general protections) they wish to pursue.

As a result, employees dismissed on or after 1 January 2013 will have 21 days from the date of dismissal to lodge either an unfair dismissal or a general protections dismissal application.

New party costs provisions

The Fair Work Commission will be better able to order costs against a party and/or their representative in unfair dismissal matters in the case of unreasonable conduct.

Collective bargaining

No single employee enterprise agreements

The amendments clarify that an enterprise agreement cannot be made with a single employee.

Notice of representational rights

The legislation has been amended to clarify that notices of employee representational rights must comply with the form and content requirements set out in the Fair Work Regulations. This means that employers cannot amend the prescribed form of the notice and should not place the notice on a company letter head.

Bargaining representatives

As a result of the changes, union officials cannot be nominated as a bargaining representative of an employee unless the union is entitled to represent the industrial interests of the employee. That is, the union must have coverage, by reference to the work performed by the employee under the prospective enterprise agreement, to represent the employee.

Scope orders

Under the current legislation:
  • where a bargaining representative believes that bargaining for an enterprise agreement is not proceeding efficiently or fairly and that the reason for this is that the bargaining representative believes the coverage of the proposed agreement is not appropriate, the bargaining representative may apply for a scope order from the Fair Work Commission to vary the scope of the agreement
  • no scope order applications can be made unless the bargaining representative had notified relevant bargaining representatives of the concerns outlined immediately above (and given them a reasonable opportunity to respond).
Under the new legislation, a bargaining representative only needs to take all reasonable steps to give a written notice to the other relevant bargaining representatives regarding their concerns about the scope of the agreement prior to applying for a scope order. This enables to bargaining representatives to proceed with scope order applications in circumstances where other bargaining representatives have been difficult to contact.

‘Opt out’ terms unlawful

Enterprise agreements are no longer allowed to contain a term permitting an employee to ‘opt out’ of the enterprise agreement.

Industrial action

No show of hands

The legislation now makes it clear that when the Fair Work Commission gives written directions to conduct a protected action ballot, the voting method used cannot include a ‘show of hands’. Electronic voting has been confirmed as a voting method.

Employee bargaining representatives have a vote

Employees representing themselves in bargaining may vote in a protected action ballot if they are members of a union that applied for the ballot order.

The Fair Work Amendment Act 2012 (Cth) received Royal Assent on 4 December 2012.
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