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Wednesday, 6 February 2013

Changes to the Fair Work Laws

The Commonwealth Government has made a number of changes to Australia’s employment laws that will take full effect on 1st January 2013. Many of your clients – especially those running small and medium sized businesses will be entirely unaware of these changes, so the following summary will help you quickly easily explain what these changes mean for them.

Changes to Fair Work Australia
Australia’s employment laws are currently enforced by a number of different agencies and courts. The two key agencies your clients are likely to interact with are:
  • The Fair Work Ombudsman (FWO), which is responsible for promoting compliance with the laws and investigating complaints (, and
  • Fair Work Australia (FWA), which is the primary employment relations tribunal where matters relating to unfair dismissals, industrial action and Enterprise Agreements are heard ( As of 1 January 2013, Fair Work Australia will be renamed the Fair Work Commission (FWC). Its powers and functions will remain largely unchanged.

Changes to Unfair Dismissal and Adverse Action Claims
Currently, employees who wish to make an application relating to an alleged unfair dismissal must lodge their claim within 14 days of their termination. In contrast, employees who wish to make an application relating to alleged ‘adverse action’ by their ex-employer have a more generous window period of 60 days to lodge their claim.
As of 1st January 2013, the deadlines for both types of applications will be harmonised to 21 days. This will prevent employees who have missed the shorter unfair dismissal application deadline lodging an adverse claim as their ‘fall-back’ option.
Further, the application process for unfair dismissal claims will also change. Aggrieved employees may be required to provide more detailed information about their dismissal on their initial application forms.
It will also become easier – in theory at least – for employers to obtain a costs order against an ex-employee (or their representative) where it can be shown that they:
  • unreasonably failed to discontinue their application, or
  • unreasonably failed to accept a settlement offer that could have resolved the claim, or
  • caused the employer to incur costs as a result of their own unreasonable acts or failures to act
It’s hoped these changes will make the system fairer for employers who have faced unreasonable demands from lawyers and agents acting for employees on a ‘no-win, no-fee’ basis.

Changes to Enterprise Agreements
Enterprise Agreement are ‘collective’ employment agreements made between employers and their employees. The Enterprise Agreement-making process is set out in the Fair Work Act 2009 and all parties must carefully follow this process in order for their final Agreement to be approved by Fair Work Australia (aka the Fair Work Commission).

Importantly, an Enterprise Agreement has no legal effect unless and until it has been formally lodged and approved by FWA.

From 1st January 2013, a number of new rules will apply in relation to the Enterprise Agreement-making process. These include:
  • employers will be prevented from making an Enterprise Agreement that covers only one employee
  • The content of the mandatory ‘Notice of Representational Rights’ that employers must give to employees at the beginning of the negotiation process will be strictly limited, and
  • union officials will be prevented from bargaining on behalf of an employee if the union does not ‘cover’ the employee
It’s very important to note that these changes are just the first wave of amendments that the Commonwealth Government may make to the Fair Work laws. It’s important to keep on top of these changes to ensure your clients know – and comply with - all their legal obligations.