Approximately one third of the recommendations, for which there was broad stakeholder support, arising from the independent Fair Work Act Review report released on 15 June 2012, will form the basis of amendments to the Fair Work Act to be introduced this year.
The key changes, to the Fair Work Act are:
- Applications will have to be filed within 21 days of the dismissal (currently 14 days).
- Fair Work Australia (FWA) is to have an explicit power to dismiss applications where the parties have concluded a settlement agreement, or where the applicant fails to attend a proceeding or fails to comply with orders or directions.
- The President of FWA will be encouraged to require applicants to provide more information about the dismissal in their initial application.
- Costs orders will be permitted against a party that has unreasonably failed to discontinue a proceeding, or unreasonably failed to agree to terms of settlement that could have led to discontinuing the application or that has through an unreasonable act or omission caused the other party to incur costs.
- Clauses which permit employees to opt out of an agreement are to be prohibited.
- Agreements with one employee will not be permissible.
- Union officials will not be able to act as bargaining representatives for employees for whom the union does not have coverage under its rules.
- Applicants for scope orders will have to take all reasonable steps to notify other bargaining representatives of the application.
- Bargaining notices will not be able to contain information other than that required to comply with the Act.
Protected action ballots:
- will be able to be conducted by electronic voting
- will include employees who become union members after the ballot order is obtained
- will include employee bargaining representatives who are union members
- will have to be conducted expeditiously.
General Protections / Adverse Action
- The time limit for dismissal related claims will be reduced from 60 days to 21 days, the same as the new time limit for unfair dismissal claims.
- FWA will be empowered to strike out applications to vary awards that are frivolous or vexatious or have no reasonable prospects of success.
- Standing to bring applications to vary a modern award to remove ambiguity or uncertainty will be clarified.
Operation of FWA
- FWA’s name will change to something that more aptly denotes its functions, contains the word ‘Commission’ and does not contain the words ‘Fair Work’. (Although the Minister appeared to contradict this last recommendation when suggesting at a media conference that the new name might be the Fair Work Commission.)
- The President is to have powers to deal with complaints against members of the agency and there will be an independent process to deal with complaints against the President.
The Government will continue discussions with stakeholders about the remaining Fair Work Act Review recommendations, as well as recommendations arising from the Productivity Commission’s final report into default superannuation funds in modern awards (see http://www.pc.gov.au/projects/inquiry/default-super/report).