Just when you were getting relaxed and comfortable with the Fair Work Act 2009 (FW Act), further change is a foot including a change to the name of FairWork Australia (FWA). On 30 October 2012, theWorkplace Relations Minister, Bill Shorten, introduced into Parliament the Fair Work Amendment Bill 2012 (FW Bill) which aims to amend the FW Act to give effect to a number of the “noncontentious” recommendations made by the Fair Work Act Review Panel in its report “Towards more productive and equitable workplaces: An evaluation of the fair work legislation”.
Most of the amendments are technical or clarifying amendments which are likely to pass through the Parliament without controversy.
The proposed amendment likely to have the biggest impact is reducing the time limit for adverse action claims from 60 days to 21 days and increasing the time limit for unfair dismissal claims from 14 days to 21 days.
Other proposed amendments set out in the FW Bill include:
- preventing employers from making an enterprise agreement with a single employee;
- prohibiting “opt out” clauses in future enterprise agreements and making existing “opt out” clauses unlawful;
- preventing union officials from being bargaining representatives (even in a private capacity) for employees not eligible to be members of their union;
- requiring bargaining notices (which must be sent to all employees who it is proposed will be covered by an enterprise agreement) to only contain the information that the regulations prescribe and not additional information;
- increasing FairWork Australia’s powers to dismiss unfair dismissal cases and to award costs against parties, lawyers and other agents; and
- making it clear the provisions in subsection 570(2) of the FW Act relating to costs apply to “matters arising” under the FW Act and not just to matters where a court is “exercising jurisdiction” under the FW Act. This amendment confirms the position that generally the FW Act provides for a “no costs” jurisdiction.
A large number of the proposed amendments relate to changes to FWA itself. They include:
- changing the name of FWA to the FairWork Commission (FWC);
- creating an expert panel to conduct the annual minimum wage review and assess the eligibility of MySuper products for nomination as default super funds in modern awards;
- creating two new positions of Vice President to assist the President with his functions;
- giving new powers to the President to deal with complaints about members of the FWC and to recommend who is to be appointed as the General Manager of FWC; and
- making provision for the appointment of Acting Commissioners to fill short term vacancies and/or to assist with the FWC’s workload.
The proposed amendments in the FW Bill deal with 17 of the 53 recommendations made by the Review Panel and represent a “first tranche response to the Report”. While a second wave of amendments to the FW Act has been foreshadowed by Minister Shorten, it is not yet clear when they will be introduced or which of the remaining recommendations they will relate to. What is clear is that it is unlikely any amendments dealing with the more controversial recommendations will be introduced into the Parliament without some level “consensus” among unions and employer organizations.