The Fair Work Amendment Act 2012 – how will it affect you?

By: Chao Ni, Workplace Relations, Mason Sier Turnbull

Introduction

With the introduction of the Fair Work Act 2009 (Cth) (FW Act), the Government announced its commitment to undertake a full review of the FW Act within two years.  In December 2011, an independent panel appointed to undertake this review made 53 recommendations.  Approximately one third of the recommendations were adopted in the Fair Work Amendment Act 2012 (Amendment Act).  The Amendment Act became law on 4 December 2012.

The Amendment Act represents the first instalment of amendments which, whilst mostly technical, introduces some significant changes to the FW Act.  A summary of those changes are set out below:

• change the name of Fair Work Australia to the Fair Work Commission (FWC); 
• require the FWC to review default superannuation fund terms of modern awards every four years;
• provide that enterprise agreements cannot be made with a single employee;
• provide that a union official from one union cannot act as a bargaining representative where that union does not have coverage;
• prohibit terms which enable employees to opt out of an enterprise agreement;
• clarify the strict form and content requirements contained in notices of employee representational rights;
• align all time limits for applying to the FWC to resolve dismissal related disputes (including unfair dismissal claims) to 21 days after termination;
• clarify that workplace rights apply to persons including employees, employers and contractors;
• enable the FWC to dismiss an unfair dismissal application in certain circumstances;
• provide for the FWC to order costs against a party and/or their representative in unfair dismissal matters when a party:
  • unreasonably failed to discontinue a proceeding;
  • unreasonably failed to agree to terms of settlement that could have led to discontinuing the application; or
  • has caused the other party to incur costs through an unreasonable act or omission;
• clarifies rules surrounding protected action ballots;
• enable stay orders to be made by presidential members; 
• require FWC members to disclose a conflict of interest to persons making submissions in a matter, as well as to the President;
• clarify the mechanism by which matters may be referred to a Full Bench when it is in the public interest to do so;
• allow for the appointment of the General Manager and acting Commissioners;
• establish a process for handling complaints against FWC members;
• provide for the development of a code of conduct for FWC members; and
• clarify that the Act is generally a ‘no costs’ jurisdiction (including in appeal proceedings).

Impact on Employers

The above changes, on face value, appear to generally benefit employers, however, there is a strong likelihood that the changes will provide little relief from the challenges faced by employers under the unfair dismissal regime, particularly when employees now have an additional week to lodge their claim. 

MST has extensive experience in assisting its clients to comply with the extensive requirements of the FW Act. Please contact one of our workplace relations lawyers for further information on this topic on 03 8540 0200.