New Work­place Laws — Fair Work Amend­ment Bill 2012 

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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.

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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.

Superannuation

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.