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Industrial and Employment Law Alert: Changes commence to unfair dismissal, general protections, enterprise bargaining, and Dad and Partner Pay - 9 Jan 2013

A number of changes to the Fair Work Act came into effect on 1 January 2013. The changes respond to 53 mainly technical recommendations to improve the operation of the Act, following an independent review of the legislation during the first half of 2012. This first round of amendments gives effect to about one-third of the recommendations.

In addition to changing the name of Fair Work Australia to the Fair Work Commission, the changes relate, among other things, to unfair dismissals, general protections and enterprise agreements.

‘Dad and Partner Pay’ - a government-funded paid leave entitlement for non-primary carers - has also become available for eligible working parents who care for a child born or adopted from 1 January 2013.

Partner Andrew Tobin and law clerk Alyce Hamlin explain what employers need to do to ensure they comply with the changes introduced. Click here to listen to associate Damon King discuss these changes on BRR Media.

What you need to do now

  • Employers and their staff involved in human resource management should become familiar with:
    • the changes to the unfair dismissal and general protections laws; and
    • the Dad and Partner Pay entitlement.
  • Policies and internal processes relating to paid and unpaid parental leave should be checked to ensure they conform with the statutory entitlement to Dad and Partner Pay.
  • Employers and their staff involved in enterprise bargaining for new enterprise agreements should check that their proposed agreement/s, and related processes, conform with the new requirements.

Fair Work Commission

Fair Work Australia is now called the Fair Work Commission, after the 2012 review recommended a name change for various reasons. At a practical level, the change may help to distinguish the Commission from the office of the Fair Work Ombudsman.
A number of other structural changes have also been made to the Commission. These include, for example, the introduction of a process to deal with complaints against Commission members (Commissioners) and streamlining provisions dealing with conflicts of interest of members.

The Commission has a new website at www.fwc.gov.au. Their role and contact details remain unchanged.

There is no change to the name or functions of the Fair Work Ombudsman. For further information about the role of the Ombudsman, see www.fairwork.gov.au.

Time limits for lodging unfair dismissal and general protections claims

The changes align the time limits for lodging:

  • unfair dismissal claims; and
  • general protections claims involving dismissal;

at 21 days.

The time limit for lodging an unfair dismissal claim has increased from 14 to 21 days. The time limit for lodging a general protections dismissal application has been reduced from 60 to 21 days.

Employees dismissed on or after 1 January 2013 will have 21 days from the date of dismissal to lodge either an unfair dismissal or general protections dismissal application. The Fair Work Commission retains its existing discretion to extend that time limit in appropriate cases.

The previous time limits for lodging either an unfair dismissal or general protections dismissal application will apply to workers dismissed before 1 January 2013.

Time limits for the commencement of other types of claims provided for in the Fair Work Act are not affected.

Unreasonable conduct of unfair dismissal claims: dismissal of claims without hearing and awards of costs resulting from unreasonable acts or omissions

The Commission’s discretion to dismiss unfair dismissal applications without a full hearing and to make costs orders against parties and their representatives has been extended.

The Commission now has the express power to dismiss an unfair dismissal claim without a full hearing where it is satisfied that the applicant has unreasonably failed to prosecute their claim (for example, by not attending a conference or hearing or by failing to comply with an order of the Commission).

Similarly, the Commission now has the express additional power to order costs, if applied for, against a party to a claim (the first party - whether applicant worker or respondent employer) for costs incurred by the other party. Costs can be ordered where the Commission is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission in connection with the conduct of the proceeding.

The circumstances in which costs might be ordered against a representative for a party - whether applicant worker or respondent employer - have been expanded, primarily by removing the previous requirement for a representative against whom a costs order can be made to first have been granted permission by the Commission (required in many cases) to represent a party. Costs orders can now be made against lawyers or other paid agents for parties in unfair dismissal proceedings, whether or not they have been granted permission to appear. The change is intended to provide a stronger deterrent for lawyers and paid agents from encouraging parties to bring or continue ‘speculative’ unfair dismissal claims or, in the case of respondent employers, from pursuing hopeless defence strategies or jurisdictional arguments.

Enterprise agreements

The changes made in relation to the making and operation of enterprise agreements include the following:

  • Enterprise agreements cannot be made with only one employee. 
  • A union official (even in a private capacity) cannot act as a bargaining representative for an employee where the union does not have coverage to represent that employee. 
  • Opt-out terms cannot be included in new enterprise agreements, and such terms in existing agreements will be ineffective. Existing opt-out arrangements given effect before 1 January will not be impacted. 
  • A bargaining representative applying for a scope order need only have taken ‘all reasonable steps’ to give notice (rather than being obliged to give actual notice) of the issues motivating the application to other bargaining representatives. 
  • Employers cannot modify the notice of employee representational rights, to be given to all employees to be covered by a proposed enterprise agreement, as prescribed by the Fair Work Regulations.

Changes still to come

The new legislation also includes provisions:

  • for the appointment of an Expert Panel who, from 1 July 2013, will have responsibilities in relation to annual wage reviews (replacing the current Minimum Wage Panel) and reviews of default superannuation fund terms in modern awards; and
  • relating to the inclusion of default superannuation fund terms in modern awards and for the conduct, from 1 January 2014, of four-yearly reviews of such terms.

There was some mention in the press late last year – based on remarks by the Minister for Workplace Relations – about the prospect for the introduction of a second round of changes in the early part of this year. However, at the time of writing, no firm proposals have been tabled. The bulk of the review recommendations have not been actioned and some of these are contentious. The Minister has pegged further reform to consensus among union and employer groups.

Dad and Partner Pay

As foreshadowed in our Alert on 28 March last year, the entitlement to paid leave for dads and partners has commenced.

  • The entitlement is available to eligible parents who care for a new child (including adopting parents and same sex couples) born or adopted after 1 January 2013.
  • The entitlement is for payment of up to two weeks of government funded pay at the rate of the National Minimum Wage (currently $606 per week before tax) while the employee is on unpaid leave from work or, for self-employed people, while they are not working.
  • The entitlement is paid directly by the Government. Employers have no role in administration of the entitlement, for which employees must themselves apply.
  • To receive the entitlement, employees cannot be on paid leave and must not work during the Dad and Partner Pay period.
  • The entitlement can be taken at any time in the first year after the child’s birth or adoption.
  • Entitlement to Dad and Partner Pay does not change other workplace leave entitlements. The rules otherwise applicable to taking unpaid parental leave (that is, unpaid by the employer) continue to apply. The non-primary carer is entitled to take up to three weeks of unpaid parental leave, starting immediately after the date of birth or adoption of the child.

For more information about these changes, please contact HopgoodGanim’s Industrial and Employment Law team.