Employers need to heed recent changes to the Fair Work Act

By Michael Sheng and Vince Rogers, Ashurst
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The time limit for lodging an unfair dismissal application in Australia has increased from 14 days to 21 days. However, employees who were dismissed prior to 1 January 2013 will still only have 14 days from the date of dismissal to lodge an application.

The Fair Work Commission (FWC) now has express power to dismiss an unfair dismissal application based on unreasonable behaviour by the applicant, where the applicant:

  • Fails to attend a conference or hearing;
  • Fails to comply with a direction or order of the FWC; or
  • Fails to discontinue the application once a settlement is reached.

Unfair dismissal

盛冕 Michael Sheng 亚司特国际律师事务所 上海代表处 合伙人 Partner Ashurst Shanghai
Michael Sheng

The FWC also now has power to make a costs order against a party in an unfair dismissal matter where that party has caused the other party to incur costs because of their unreasonable act or omission in connection with the conduct or continuation of the matter.

This power operates in addition to the FWC’s existing power to make costs orders when it is satisfied that an application is made or responded to vexatiously, or without reasonable cause, or that it should have been reasonably apparent that a person’s application or response had no reasonable prospect of success.

Accordingly, this new power lowers the hurdle for seeking and obtaining cost orders in connection with unfair dismissal proceedings.

Cost orders

The amendments to the act also remove the requirement that the FWC must have first made an order granting leave for a party to be represented before it can make costs orders against lawyers or paid agents.

Accordingly, even when the FWC has not granted leave for a party to be represented, the FWC can make orders against lawyers or paid agents when:

  • They have encouraged a person to start, continue or respond to the matter, when it is apparent that the person had no reasonable prospects of success; or
  • There has been an unreasonable act or omission by the representative in connection with the conduct or continuation of the matter.

The time limit for lodging a general protections dismissal application has been reduced from 60 days to 21 days. However, employees dismissed prior to 1 January 2013 still have 60 days from the date of dismissal to lodge a general protections dismissal application.

Vince Rogers 亚司特国际律师事务所 布里斯班办公室 合伙人 Partner Ashurst Brisbane
Vince Rogers

Enterprise agreements

The amendments to the act have imposed additional requirements for making enterprise agreements:

  • Enterprise agreements now cannot be made with a single employee;
  • An employee organisation or a union official of an employee organisation – importantly, whether acting in that capacity or otherwise – cannot act as bargaining representative for an employee unless the union has coverage to represent that employee in relation to work to be performed under the agreement;
  • Opt out clauses in an enterprise agreement are now prohibited;
  • A bargaining representative applying for a scope order now need only take “all reasonable steps” to give notice to other bargaining representatives; and
  • Employers now cannot modify the notice of employee representational rights prescribed by the regulations.

Modern awards

In relation to modern awards, key changes include:

  • The introduction of new requirements for modern awards to provide for a default superannuation fund, and the mechanism for how the FWC is to review the default superannuation fund every four years;
  • The amendments to the act have clarified that applications to vary an award in order to remove an ambiguity or uncertainty, or to correct an error, may be brought by an employer organisation or union that is entitled to represent the industrial interests of the employers or employees covered by the award; and
  • The FWC can now strike out an award variation application if it is not made in accordance with the legislation, is frivolous or vexatious, or has no reasonable prospects of success.

Protected action ballots

The key amendments to the protected action ballot provisions of the act are:

  • Protected action ballots may now be conducted by electronic voting; and
  • The protected action ballot must now specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

The following persons may now vote in a protected action ballot: 1) an employee who will be covered by the enterprise agreement; 2) an employee who is represented by a bargaining representative who is an applicant for the protected action ballot order; or 3) an employee who is representing themselves in bargaining, if they are a member of a union that applied for the protected action ballot order.

What you need to do

Employers should consider the changes when developing their strategy for responding to and managing proceedings before the FWC.

The Minister for Employment and Workplace Relations, Financial Services and Superannuation has foreshadowed a further round of changes and further amendments to the act during the course of 2013. In the meantime, employers should ensure that their practices and procedures reflect the changes to the act.



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