Release type: Media Release


Fair Work Act Amendment Bill passes the Parliament


The Hon Bill Shorten MP
Minister for Employment and Workplace Relations, Financial Services and Superannuation

Minister for Employment and Workplace Relations and Minister for Financial Services and Superannuation, Bill Shorten, has welcomed the passage of the Fair Work Amendment Bill 2012 through the Parliament today. 

This is yet another demonstration that the Government is getting on with historic workplace relations and superannuation reforms, while the Opposition remain a policy free zone.

The Act implements a number of recommendations from the independent Fair Work Act Review, and other changes arising from the Minister’s consultation with stakeholders such as members of the National Workplace Relations Consultative Council, small business representatives, the Fair Work Ombudsman and Fair Work Australia.

The Act also implements the Government’s response to the Productivity Commission’s inquiry into default superannuation in modern awards, which was initiated by the Government in January 2012.

Fair Work Commission

With the passing of this legislation Fair Work Australia will now be renamed the Fair Work Commission.  This name more accurately reflects the institution’s functions as Australia’s national workplace relations tribunal and role within the Fair Work system.

Structural amendments to the Fair Work Commission contained in the Bill include the creation of two Vice President positions. The criteria for appointment of Vice Presidents will be the same as for the President of Fair Work Act and are set out in the legislation.

The process for selecting the two Vice Presidents will be open and transparent, and the positions will be publicly advertised.  Appointments to these senior positions within the Fair Work Commission will follow a merit based selection process.

Unfair dismissal

The Act also improves the integrity of the unfair dismissal application and hearing process by:

• aligning the timeframes for making unfair dismissal claims and general protections dismissal claims at 21 days;

• implementing the review recommendations relating to costs orders where a party to an unfair dismissal matter has caused the other party to the matter to incur costs by an unreasonable act or omission.  This recommendation reflects concerns that unscrupulous lawyers or agents are encouraging dismissed employees to pursue unfair dismissal claims without merit on a no-win, no-fee basis;

• providing the Fair Work Commission with discretion to dismiss applications in certain circumstances, such as when the applicant, without any reasonable explanation or excuse, fails to attend a hearing or comply with an order made by the Commission or has failed to discontinue an application after a settlement agreement has been concluded.

The Gillard Government firmly believes in protecting workers from unfair dismissal and ensuring employees with a genuine claim can fully pursue a remedy. But we also recognise that the process needs to deal with unreasonable claims and ensure small business does not experience unnecessary red-tape, unreasonable conduct and vexatious litigation.

Default Superannuation Arrangements

The Act reflects the Government’s ongoing commitment to providing a superannuation system that operates to maximise the retirement incomes of Australian workers, and a strong and stable modern award safety net. 

Importantly, the new Expert Panel process improves the transparency and contestability of the selection of default funds in modern awards. 

Technical improvements

Finally the Act implements several technical and clarifying recommendations made by the Fair Work Act Review, including:

• Prohibiting opt-out clauses in enterprise agreements;
• Clarifying that statutory enterprise agreements cannot be made with a single employee;
• Clarifying notification requirements for scope order applications;
• Clarifying what may be included in a notice of representative rights to employees;
• Prohibiting an individual union official being a bargaining representative of an employee where the union does not have coverage;
• Clarifying when a modern award variation application can be struck out and who can apply for a modern award to be varied; and
• Clarifying how protected action ballots can be conducted, while preserving the existing strict requirements and processes around when protected industrial action can be taken. 

The Minister thanked all stakeholders who engaged throughout the Review process including detailed consultation on the Review Panel’s recommendation.

The Government remains committed to working with employers, employees and their representatives on implementing the remaining Review Panel recommendations.