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Fair Work Act Amendment

A BILL to amend the Fair Work Act will be introduced today.

This first tranche of Fair Work Act amendments has been proposed following consultation with the ACTU and Employer representatives and is focused toward a number of specific recommendations in the panel’s report and additional matters that have arisen following consultations with the President of Fair Work Australia and the report of the Productivity Commission into Award Default Superannuation.  The drafting has progressed quickly sine the Committee on Industrial Legislation first met on 19 October to consider the terms of the Bill.

A summary of the changes introduced by the amending legislation is as follows:

In response to the Fair Work Act Review:

– Registered Organisations will be given standing to apply to vary awards to remove ambiguity or uncertainty or correct error;
– An applicant for a scope order will be required to take all reasonable steps to give notice to all other bargaining representatives;
– Notices of representational rights to be confined to the information provided in the legislation and the regulations;
– Union officials not to act as bargaining representatives for workers that the official’s union is not eligible to represent;
– Capacity for Protected Action Ballots to be conducted electronically;
– Employees who join a union that has secured a Protected Action Ballot after that order has been granted to be permitted to vote on and take protected action;
– Requirements that protected action ballot agents conduct ballots expeditiously;
– Employee bargaining representatives that are members of a union that is seeking a Protected Action Ballot order to be permitted to vote on and take protected action under that ballot order;
– Agreement clauses that permit “opting out” to be unlawful terms;
– Prohibit the making of an enterprise agreement with one employee;
– 21 day time limit to lodge Unfair Dismissal applications and General Protections applications that relate to dismissal;
– Fair Work Australia to have the power to dismiss unfair dismissal applications where there is a concluded settlement agreement, or where the applicant fails to attend or comply with orders/directions;
– Costs orders to be available (including against lawyers and paid agents who have not yet been granted permission to appear) where a party has unreasonably failed to discontinue, unreasonably failed to agree to a settlement agreement or has unreasonable caused the other party to incur costs.

Concerning Fair Work Australia:

– The tribunal to be renamed, to the “Fair Work Commission”;
– Minimum Wage experts (3) and Default Superannuation experts (3-see below) to be referred to as “Expert Panel Members”
– The Governor General’s appointment of a General Manager to follow nomination by the President of Fair Work Australia;
– A Presidential member of FWA to be empowered to stay a decision under appeal, irrespective of whether that member will be on the bench considering that appeal;
– Power to appoint Acting Commissioners;
– Power to appoint two full-time Vice Presidents;
– Framework for Fair Work Australia members to manage conflicts of interest and a complaints process;
– Improved procedure to refer significant matters to a Full Bench.

In response to the Productivity Commission Review of Award Default Superannuation

– Power to appoint three Expert Panel Members with knowledge or experience in Superannuation, investment management or finance to sit with four FWC members during 4 yearly reviews of default fund terms in modern awards;
– Two stage process for default fund reviews: A shortlist of compliant Mysuper products chosen on performance and administration criteria followed by a section of shortlisted funds that are appropriate for each award;
– Transitional process to permit retention of existing default funds.

We expect that the Bill and the explanatory memorandum will be available online shortly here

Ongoing Process re Review

Whilst the ACTU has indicated to the Minister that we support the Bill, we have stressed that the proposals set out above do not deal with a significant range of important matters advanced by unions to the Review Panel and to the Minister directly.  As set out in our published response, the Review Panel report also contains a number of recommendations that the ACTU and Affiliates strongly oppose.

The Minister has committed to ongoing discussions with NWRCC members concerning the review recommendations and other relevant matters, with a view to initiating additional legislation in 2013.

If you require further information in relation to these matters, please contact me or Senior Legal & Industrial Officer Trevor Clarke (


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