20 November 2012 New Workplace Laws - Fair Work Amendment Bill 2012

By Richard Ottley, Partner and Laura Sowden, Solicitor

In Brief

After being recently passed by the House of Representatives, the Fair Work Amendment Bill 2012 is currently being considered by the Senate's Education, Employment and Workplaces Relations Legislative Committee, with a reporting date of 26 November 2012. The Bill was drafted in response to the Fair Work Act Review completed in August of this year and picks up on some of the Review Panel's 53 recommendations.

Time Limits on Claims

The most high profile proposed change is the extension of the time period within which unfair dismissal claims must be made under s 394 (2) (a). Currently such claims must be made to Fair Work Australia within 14 days of the dismissal. The Bill proposes to extend this to 21 days.

The time period within which a general protections claim (arising from termination) must be brought has however been reduced under proposed changes to s 366 (1) (a), from the current 60 days from the date termination takes effect, to 21 days.

Costs in Unfair Dismissal

The Bill proposes that the Commission would be able to make a costs order against a party in an unfair dismissal matter if the Commission is satisfied that the first party caused the other party to incur costs because of an unreasonable act or omission by the first party. This change would be achieved through proposed s 400A to the Act. Costs provisions already exist in unfair dismissal cases with respect to lawyers who unreasonably increase costs or encourage unmeritorious claims.

A New Name

Under the proposed changes, the name of Fair Work Australia is to change to the Fair Work Commission to more properly reflect the work it undertakes. There will also be two vice-presidents in the newly named Commission, in order to attract more senior specialists.


A significant change is the introduction of default superannuation funds for employees who do not nominate their own superannuation fund and are covered by a modern award. This is reflected in the Bill's proposal to insert a new s 149C requiring each modern award to contain a default fund term.  It is envisaged by Mr Shorten, the Minister for Financial Services and Superannuation and Minister for Employment and Workplace Relations, that modern awards would contain 2-10 default superannuation funds for employers to choose from.

The Commonwealth Public Sector Superannuation Accumulation Plan and state public sector schemes would be exempt from the default fund requirement.  The Fair Work Commission's newly created Expert Panel would determine according to performance, which superannuation funds were listed among the default superannuation list.

Richard Ottley, Partner  |  Phone: +61 2 9233 5544  |  Email:

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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