Authors: Jo-Anne Chong
Sydney, NSW, Australia
Amendments to the Fair Work Act 2009 as prescribed by the Fair Work Amendment Act 2012commenced on 1 January 2013.
In addition to renaming Fair Work Australia the Fair Work Commission, a number of legislative changes came into effect on 1 January 2013 in relation to unfair dismissals, general protections and enterprise agreements.
The time limit for lodging unfair dismissal applications has increased from 14 to 21 days.
The amendments also introduced additional circumstances in which the Commission may make a costs order against a party in unfair dismissal matters. Costs orders may be made against a party that has:
unreasonably failed to discontinue a proceeding;
unreasonably failed to agree to terms of settlement that could have led to discontinuing the application; or
caused the other party to incur costs through an unreasonable act or omission.
In uniformity with the timing for an unfair dismissal application, the time limit for lodging a general protections (or adverse action) application arising out of a dismissal has been reduced from 60 days to 21 days.
The changed time limits noted above apply to all employees dismissed on or after 1 January 2013. This means that employees dismissed prior to 1 January 2013 who wish to lodge an unfair dismissal or general protections dismissal application will still have 14 days and 60 days respectively from the date of dismissal to lodge an application. 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.
A number of changes were made to the enterprise agreement related process including a requirement that such agreements cannot be made with a single employee.
The main amendment is to expressly prohibit ‘opt out’ clauses in enterprise agreements being clauses which enable an employee to opt out of enterprise agreement coverage. Such clauses are now prohibited. This will mean that employers will need to consider other mechanisms for making flexible working arrangements with individual employees, such an individual flexibility agreement.
A union official cannot act as bargaining representative for an employee unless the union has coverage to represent that employee and a bargaining representative applying for a scope order, need only take all reasonable steps to give notice to other bargaining representatives.
This first wave of changes has addressed a number of issues raised by the Fair Work Act Review Panel however, a number of recommendations made in the Review Panel’s Report remain to be addressed including:
whether good faith bargaining obligations also apply to negotiation of greenfields agreements;
whether expired fixed-term contracts will be deemed as a “dismissal” for the purpose of making an unfair dismissal claim where the substantial purpose of the fixed-term contracts was to avoid unfair dismissal;
right of entry issues; and
whether employees accrue annual leave while absent from work and are receiving workers’ compensation payments.
Now that this year’s Federal election has been announced to occur on 14 September 2013, it remains unclear whether these issues will be addressed during an election campaign.
Implications of 1 January 2013 changes
With respect to the amendments that are now in place, it will be important to be mindful of:
the new time limits that apply to unfair dismissals applications and general protection claims;
whether initial documentation lodged with the Fair Work Commission provides sufficient information about the alleged circumstances of dismissal;
whether there are grounds to apply for a cost order;
whether there is scope for an unfair dismissal application to be dismissed;
one-employee enterprise agreements are now prohibited;
whether an individual union official actually has coverage of employees in negotiations; and
removing ‘opt’ out clauses in enterprise agreements.
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity and does not constitute specific legal advice.