Important Changes to the Fair Work Act - What Employers Need to Know

By Elizabeth Olsson, Mellor Olsson Lawyers

The Government's amendments to the Fair Work Act arising out of a review of the system came into effect on 1 January, 2013. Some are cosmetic, some are substantial. 

The changes affecting dismissals take employers back to the situation that existed pre-Work Choices! Outlined below is a summary of some of the key changes. 

Time Limits Extended and Harmonised 

  • a worker will now have 21 days to bring an unfair dismissal claim instead of the current 14.
  • a worker claiming unlawful dismissal under the general protections of the Act will have 21 days to bring their claim, not the current 60.

The Fair Work Commission - Fair Work Australia (formerly the Australian Industrial Relations Commission) will now be known as the Fair Work Commission (FWC).

Clarification of Application of General Protections - termination of independent contractors' contracts due to adverse action will be covered by the scheme.

Extra Powers in dismissal cases 

  • FWC will have greater powers to dismiss applications brought vexatiously or where an applicant has unreasonably failed to attend a conference, comply with an order or discontinue an action.
  • FWC has wider powers to award costs against a party or their lawyer but otherwise it is confirmed that FWC is generally a "no costs" jurisdiction.

Enterprise Agreements 

  • Agreements can no longer be made with one employee only.
  • Agreements can no longer contain "opt out" terms.
  • Unions can not be part of the bargaining process unless some of the employees involved are union members.
  • The notice of employee representational rights prescribed by the regulations cannot be modified.

Modern Awards 

  • The question of when Awards can be varied and by whom has been clarified.
  • Awards are to include a default superannuation term, and conduct four-yearly reviews of default superannuation fund terms in awards (will not commence before 1 January 2014).

Wage Reviews 

6 Expert Panel Members will have responsibility for the annual wage review and review of the default superannuation fund terms from 1 July 2013.

For further information contact Elizabeth Olsson Ph: 8414 3400 or email: eolsson@mellorolsson.com.au

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