Workers face costs over ‘dodgy’ unfair dismissal claims

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Workers face costs over ‘dodgy’ unfair dismissal claims

Limited changes to the unfair dismissal provisions of the Fair Work Act will be made by the Federal Government this year, including costs against workers who make spurious claims.

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Limited changes to the unfair dismissal provisions of the Fair Work Act 2009 will be made by the Federal Government this year, including costs against workers who make spurious claims.

The legislation will include a restructuring of Fair Work Australia (FWA) itself, with more power to the president.

Workplace Relations Minister Bill Shorten announced the first set of changes yesterday, which are limited to those on which there is ‘broad agreement’ between employers and unions. Other changes will follow after further lengthy consultations.

The new legislation will permit the Minister to refer matters directly to a Full Bench where it is in the public interest, and the president will be able to take over a matter in certain circumstances.

Unfair dismissals
 
The changes to unfair dismissal cases are:
  • The time to lodge applications has been extended to 21 days (this will also be the time limit for general protections claims).
  • The FWA president can require more information about the circumstances of the dismissal in initial documentation.
  • Applications can be dismissed where the matter has been settled, an applicant fails to attend proceedings, or where the applicant fails to comply with FWA directions or order.
  • Costs can be awarded against parties who have unreasonably failed to discontinue a proceeding, unreasonably failed to agree to a settlement, or unreasonably caused the other party to incur costs.
Change of name
 
FWA will also undergo a name change, which must include ‘Commission’ but not include ‘Fair Work’. The ‘Workplace Relations Commission’ is a good bet.

The administrative and judicial arms of the current FWA apparatus are also to be more clearly distinguished.

Under the changes, Shorten will introduce to Parliament, the president will nominate the general manager to be sworn in by the Governor-General.

The current FWA president, Iain Ross, was known to be unhappy when a sitting Commissioner was found to have become involved behind the scenes in the Craig Thomson probe being conducted by the investigative arm, FW Ombudsman.

The president will now clearly be the senior position, at more than arms’ length removed from the investigative activities.

The president or any deputy president will also be able to stay the operation of a decision under appeal or review, whether or not such person is a member of the Full Bench hearing the appeal or conducting the review.

Award variations
 
The amendments will also make changes to the way award variations are conducted:
  • Frivolous, vexatious or likely unsuccessful applications to vary awards can be struck out.
  • Applications can be made to remove ambiguity or uncertainty in the terms of a modern award.
There will also be changes to the bargaining provisions:
  • The content of bargaining notices will be limited to what is permitted under the Act and the regulation.
  • Clauses allowing employees to opt out of agreements will be banned.
  • Applicants for a scope order will have to notify all other bargaining representatives.
  • Agreements cannot be made that cover just one employee.
Shorten said the government also intends to include changes to the Fair Work Act to implement a number of recommendations arising from the Productivity Commission’s final report into default superannuation funds in modern awards, subject to further consultation with industry stakeholders and members of the National Workplace Relations Consultative Council (NWRCC).

‘Whilst the Government is committed to introducing these amendments to Parliament this year we will continue to talk with all stakeholders with a view to implementing our response to independent Review Panel’s remaining recommendations,’ he said.

Full list of changes
 
The full list of the amendments that will initially be made to the Fair Work Act are listed below (the number refers to the numbered recommendations of the Fair Work Act Review report):
14  The Panel recommends that the FW Act be amended to expressly empower FWA to strike out an award variation application that is not made in accordance with the FW Act, is frivolous or vexatious or which has no reasonable prospects of success.

15  The Panel recommends that s160 be amended to provide that the parties entitled to bring an application to make, vary or revoke a modern award under s158 can also apply to vary a modern award to remove an ambiguity or uncertainty.

16  The Panel recommends that s238(3) be amended to require an applicant for a scope order to ‘take all reasonable steps’ to notify all other relevant bargaining representatives of the application.

19  The Panel recommends that s174 be amended to provide that a bargaining notice must address only the matters specified in that section and the regulations made under it.

21  The Panel recommends that s176 be amended to prevent an individual union official being a bargaining representative for employees for whom the official’s union does not have coverage.

23  The Panel recommends that the FW Act be amended to prohibit enterprise agreement clauses which permit employees to opt out of the agreement.

26  The Panel recommends that the FW Act be amended to prohibit the making of an enterprise agreement with one employee.

32(a)–(d)  The Panel made four recommendations regarding protected action ballots. Two technical amendments regarding the conduct of protected action ballots and two amendments to clarify who can be included on the roll of voters for a protected action ballot.

40  The Panel recommends that the time limit for lodging unfair dismissal applications should be extended to 21 days (to align with the recommended amended time limit for general protections claims involving a dismissal).

42  The Panel recommends that the FW Act be amended to give FWA the discretionary power to dismiss applications under s394 in circumstances where the parties have concluded a settlement agreement, or where an applicant fails to attend a proceeding relating to the application, or where the applicant fails to comply with FWA directions or orders relating to the application.

44  The Panel recommends that the FWA president give consideration to requiring applicants to provide more information about the circumstances of the dismissal in the initial documentation lodged with FWA.

45  The Panel recommends that the FW Act be amended to allow FWA to make costs orders against a party that has unreasonably failed to discontinue a proceeding, or that has unreasonably failed to agree to terms of settlement that could have lead to discontinuing the application, or that has through an unreasonable act or omission caused the other party to incur costs.

46  The Panel recommends that s401 be amended to allow FWA to make an order for costs against a lawyer or paid agent whether or not FWA has granted permission for the lawyer or agent to represent a party in the relevant application.

49  The Panel recommends that s366 be amended to reduce the time limit for lodging a general protections claim relating to a termination of employment to 21 days (to align with the recommended amended time limit for unfair dismissal applications).

50  The Panel recommends that the FW Act be amended to change the name of Fair Work Australia to a title which more aptly denotes its functions. It is recommended that the new title contain the word ‘Commission’ and that it no longer contain the words ‘Fair Work’.

51  The Panel recommends that s660 of the FW Act be amended to require that the appointment of the general manager by the Governor-General be on the nomination of the president.

52  The Panel recommends that the FW Act be amended to allow the president or any deputy president to stay the operation of a decision under appeal or review, whether or not the president or deputy president is a member of the Full Bench hearing the appeal or conducting the review.

53  The Panel recommends that the power to appoint acting deputy presidents for specified periods in s648 be extended to the appointment of acting commissioners.
Other matters relating to FWA
 
Appointment of vice-presidents  These amendments would enable the appointment of two full-time vice-presidents to the tribunal.

Complaints Handling Process  This would be broadly modelled on the Courts Legislation Amendment (Judicial Complaints) Bill 2012. The amendments would provide the president with powers to deal with a complaint against a member as well as an independent process to deal with complaints against the president.

Conflict of interest  The existing conflict of interest provisions in s 640 would be clarified to provide that potential conflicts of interests be also disclosed to parties and other persons with sufficient interest in the proceedings (eg someone who can make submissions) rather than just the president. The president would also be required to have regard to potential conflicts when allocating matters.

Referral of matters to a Full Bench  These amendments would allow a party to proceedings or the Minister to refer a matter to a Full Bench on the basis that the matter is important and it is in the public interest for a Full Bench to hear the matter.

President taking over a matter  These amendments would involve giving the president the power to take over a matter in certain circumstances.

 
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