Recent Amendments to the Fair Work Act
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Ashurst Australia 29 January 2013 Employment Alert Recent amendments to the Fair Work Act WHAT YOU NEED TO KNOW Following last year's review of the Fair Work Act 2009 (Cth) (the "Act"), a number of changes have been made to the Act by the Fair Work Amendment Act 2012 (Cth). These changes took effect on 1 January 2013. Fair Work Australia is now the Fair Work Commission (the "FWC"). Other key changes include: Changes to the time periods for filing unfair dismissal and general protections dismissal claims; New powers for the FWC to dismiss unfair dismissal applications and make costs orders against parties and representatives; and Certain changes to the enterprise bargaining provisions of the Act, including the provisions relating to protected action ballot applications. WHAT YOU NEED TO DO Employers should consider the changes when developing their strategy for responding to and managing proceedings before the FWC. The Minister for Employment and Workplace Relations, Financial Services and Superannuation has foreshadowed a further round of changes and further amendments to the Act during the course of 2013. In the meantime, employers should ensure that their practices and procedures reflect the changes to the Act. Changes to unfair dismissal and because of their unreasonable act or omission in general protections dismissal claims connection with the conduct or continuation of the matter: The time limit for lodging an unfair dismissal This power operates in addition to the FWC's application has increased from 14 days to 21 days. existing power to make costs orders when it is However, employees who were dismissed prior to satisfied that an application is made or responded 1 January 2013 will still only have 14 days from the to vexatiously or without reasonable cause or that date of dismissal to lodge an application. it should have been reasonably apparent that a person's application or response had no reasonable The FWC now has express power to dismiss an unfair prospect of success; and dismissal application based on unreasonable behaviour Accordingly, this new power lowers the hurdle for by the applicant where the applicant: seeking and obtaining cost orders in connection Fails to attend a conference or hearing; with unfair dismissal proceedings. Fails to comply with a direction or order of the The amendments to the Act also remove the FWC; or requirement that the FWC must have first made an Fails to discontinue the application once a order granting leave for a party to be represented settlement is reached. before it can make costs orders against lawyers or The FWC also now has power to make a costs order paid agents. Accordingly, even when the FWC has not against a party in an unfair dismissal matter where granted leave for a party to be represented, the FWC that party has caused the other party to incur costs can make orders against lawyers or paid agents when: AUSTRALIA BELGIUM CHINA FRANCE GERMANY HONG KONG SAR INDONESIA (ASSOCIATED OFFICE) ITALY JAPAN PAPUA NEW GUINEA SAUDI ARABIA SINGAPORE SPAIN SWEDEN UNITED ARAB EMIRATES UNITED KINGDOM UNITED STATES OF AMERICA They have encouraged a person to start, continue Modern awards or respond to the matter when it is apparent that In relation to modern awards, key changes include: the person had no reasonable prospects of The introduction of new requirements for modern success; or awards to provide for a default superannuation There has been an unreasonable act or omission by fund and the mechanism for how FWC is to review the representative in connection with the conduct the default superannuation fund every four years; or continuation of the matter. The amendments to the Act have clarified that The time limit for lodging a general protections applications to vary an award in order to remove dismissal application has been reduced from 60 days an ambiguity or uncertainty or to correct an error to 21 days. However, employees dismissed prior to may be brought by an employer organisation or 1 January 2013 still have 60 days from the date of union that is entitled to represent the industrial dismissal to lodge a general protections dismissal interests of the employers or employees covered application. by the award; and The FWC can now strike out an award variation Enterprise agreements application if it is not made in accordance with the legislation, is frivolous or vexatious or has no The amendments to the Act have imposed additional reasonable prospects of success. requirements for making enterprise agreements: Protected action ballots Enterprise agreements now cannot be made with a single employee; The key amendments to the protected action ballot provisions of the Act are: An employee organisation or a union official of an employee organisation (importantly, whether Protected action ballots may now be conducted by acting in that capacity or otherwise) cannot act as electronic voting; bargaining representative for an employee unless The protected action ballot must now specify a the union has coverage to represent that employee date that will enable the protected action ballot to in relation to work to be performed under the be conducted as expeditiously as practicable; and agreement; The following persons may now vote in a protected Opt out clauses in an enterprise agreement are action ballot: now prohibited; An employee who will be covered by the A bargaining representative applying for a scope enterprise agreement; order now need only take "all reasonable steps" to An employee who is represented by a give notice to other bargaining representatives; bargaining representative who is an applicant and for the protected action ballot order; or Employers now cannot modify the notice of An employee who is representing themselves in employee representational rights prescribed by the bargaining if they are a member of a union that regulations. applied for the protected action ballot order. Contacts Vince Rogers Tamara Gillies Partner Senior Associate Brisbane Brisbane T: +61 7 3259 7285 T: +61 7 3259 7334 E: [email protected] E: [email protected] Jason Raftos Senior Associate Perth T: +61 8 9366 8176 E: [email protected] Ashurst Employment Alert • 29 January 2013 2 Abu Dhabi Frankfurt Melbourne Rome Suite 101, Tower C2 OpernTurm Level 26 Via Sistina, 4 Al Bateen Towers Bockenheimer Landstraße 2-4 181 William Street 00187 Rome Bainunah (34th) Street 60306 Frankfurt am Main Melbourne VIC 3000 Italy Al Bateen Germany Australia T: +39 06 42 10 21 PO Box 93529 T: +49 (0)69 97 11 26 T: +61 3 9679 3000 F: +39 06 42 10 22 22 Abu Dhabi F: +49 (0)69 97 20 52 20 F: +61 3 9679 3111 United Arab Emirates Shanghai T: +971 (0)2 406 7200 Hong Kong Milan Suite 3408-10 F: +971 (0)2 406 7250 11/F, Jardine House Via Sant'Orsola, 3 CITIC Square 1 Connaught Place 20123 Milan 1168 Nanjing Road West Adelaide Central Italy Shanghai 200041 Level 4 Hong Kong T: +39 02 85 42 31 PRC 151 Pirie Street T: +852 2846 8989 F: +39 02 85 42 34 44 T: +86 21 6263 1888 Adelaide SA 5000 F: +852 2868 0898 F: +86 21 6263 1999 Australia Munich T: +61 8 8112 1000 Jakarta (Associated Office) Ludwigpalais Singapore F: +61 8 8112 1099 Oentoeng Suria & Partners Ludwigstraße 8 12 Marina Boulevard Level 37, Equity Tower 80539 Munich #24-01 Marina Bay Brisbane Sudirman Central Germany Financial Centre Tower 3 Level 38, Riverside Centre Business District T: +49 (0)89 24 44 21 100 Singapore 018982 123 Eagle Street JI. Jend. 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