The changes to the Fair Work Act, which commenced on 1 January 2013, affect the following general areas that employers need to be aware of:
Unfair Dismissal
old workplace law: employees had 14 days to file a claim
new workplace law: employees have 21 days to file a claim (this is actually the same time limit that existed before the Fair Work Act began)
Adverse Action (also known as General Protections)
old workplace law: employees had 60 days to file a claim if they had been dismissed
new workplace law: employees have 21 days to file a claim if they have been dismissed
By making the time periods the same the aim is for employees to elect which claim to make rather than to “forum shop” based on limitation periods.
Name Change
old name: Fair Work Australia
new name: Fair Work Commission
Power to Employers – Employer Rights
Under employment law employers can now ask the Fair Work Commission to throw out an unfair dismissal application if the employee has done one or more of the following:
- failed to attend a conference or proceeding before the Fair Work Commission
- failed to obey an order of the Fair Work Commission about the matter
- failed to discontinue after settlement has been reached
Legal Costs – Unfair Dismissal
The Fair Work Commission is now able to award costs against:
- a party who acts unreasonably and causes additional costs for the other party
- a legal representative (but not a union official) who encourages their client to make an unreasonable application or response to an application
It will be interesting to see whether these provisions are used and how successful they are noting the usual principle in this jurisdiction is that each party pays its own costs.
Enterprise Agreements
Changes include:
- employer’s are no longer able to make an enterprise agreement with just one employee
- enterprise agreements cannot include an “opt-out” clause which allows employees to request that they no longer be covered by the agreement (employees who “opted-out” of an agreement prior to the commencement of these changes are permitted to remain uncovered by the relevant agreement)
- a union or union official may not be a bargaining representative of an employee, unless the union is entitled to represent the industrial interests of the employees in relation to the work that will be performed under the agreement
Protected Industrial Action
The changes provide that:
- before taking protected industrial action, employees are required to vote on whether they wish to take action and what form it should take
- the person organising the industrial action is required to apply to the Fair Work Commission for an order allowing the vote to take place
- a vote by a “show of hands” is NOT allowed
- an electronic vote (on top of permitted postal or ballot box voting) IS allowed
More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers about your employment law issues.
