Current provision under the Fair Work Act

Amendment under the Bill

Fair Work Australia

• Fair Work Australia.

• Fair Work Australia will be renamed the Fair Work Commission (FWC).

Minimum Wage Panel

• Minimum Wage Panel .

• The Minimum Wage Panel will be subsumed by an Expert Panel who will undertake the duties currently performed by the Minimum Wage Panel and exercise functions in relation to default superannuation funds.

Default superannuation funds

• Most modern awards specify default superannuation funds which apply to employees who are covered by the relevant award and who do not nominate their preferred fund.

• FWC will undertake a review of the default superannuation funds every 4 years as part of their 4 yearly reviews of awards, to ensure the default fund remains a fund which is in the best interest of the employees and a suitable default fund. The first review will occur as soon as possible after 1 January 2014.

• Each modern award will be required to have at least 2 and not more than 10 default superannuation funds.

• Superannuation funds that offer a generic 'My Super' product may apply to have the product included on the default list.

Enterprise Agreements

• Provides for the making of enterprise agreements between employers and employees.

• The Bill clarifies that enterprise agreements cannot be made with a single employee and may only be made with 2 or more employees.

• Provides that employee organisations (unions) that are not entitled to represent the interest of an employee, may not be the bargaining representative for that employee in negotiating an enterprise agreement.

• The Bill clarifies that neither the employee organisation nor an individual official of the employee organisation may be a bargaining representative for an employee unless the employee organisation is entitled to represent the employee.

• Provides that where an 'unlawful term' is included in an enterprise agreement, that term has no effect to the extent that it is unlawful.

• Any term in an enterprise agreement which provides the employer or the employee with the ability to 'opt out' of coverage of the enterprise agreement will be unlawful and of no effect.

• This term will apply retrospectively - that is, to any enterprise agreements already made, with the exception of a person who has elected to 'opt out' prior to the commencement of the amendments.

General protections (adverse action)

• Provides that an employee has '60' days in which to make an adverse action claim where a dismissal has been effected.

• This will be reduced to '21' days from the date that the dismissal took effect.

• General protections are currently stated to cover 'persons'.

• The term 'persons' is defined to include "an employee, an employer or otherwise" clarifying that employers are entitled to make adverse action claims.

Unfair Dismissal

• An application for unfair dismissal remedy may be made 14 days from the date that the dismissal took effect.

• An unfair dismissal remedy application will be able to be made 21 days from the date that the dismissal took effect.

• No current equivalent provision.

• The FWC may, where it is satisfied that an applicant for unfair dismissal remedy has acted unreasonably by failing to:

• attend a FWC conference or hearing; or
• comply with a FWC order or direction; or
• discontinue an application after a settlement agreement has been concluded;

• dismiss the application.

• No current equivalent provision.

• The FWC may, upon application, award costs against a party where the applying party incurred costs because of an unreasonable act or omission of the other party.

• FWA may order costs against a lawyer or paid agent where the lawyer or paid agent has caused costs to be incurred against the other party by encouraging a person to "start or continue" a matter which had no reasonable prospect of success.

• This provision has been expanded to allow FWC to order costs against a lawyer or paid agent where it has encouraged a person to "start, continue or respond" to a matter which had no reasonable prospect of success - that is, it extends the provisions to provide that costs may be awarded against an employer's representative.