Key changes to Fair Work Act and Fair Work Commission procedures 

Area of law

Previous law

Change

Jurisdictional objections - General Protections (GP) dismissal disputes to align with Unfair Dismissal (UFD) disputes

Jurisdictional objections in UFD disputes could be heard of by way of conciliation or formal hearing, whereas jurisdictional objections in GP dismissal disputes had to be heard of by way of formal hearing (there was no opportunity for conciliation).

Jurisdictional objections in GP dismissal disputes may be heard by way of conciliation or formal hearing, as is the case with UFD disputes. Jurisdictional objections of both kinds will continue to proceed together with consideration of the merits if not resolved at conciliation.

Crackdown on frivolous and vexatious claimants

The FWC had the power to dismiss an application that was not made in accordance with the FW Act, was frivolous or vexatious, or had no reasonable prospect of success.

Where the FWC has dismissed an application, on the grounds it is frivolous or vexatious, or has no reasonable prospect of success, the FWC can order that the applicant must not make any further application without the permission of a presidential member.

Determining UFD matters 'on the papers'

Only an extension of time or an application for an order required a party to produce documents determined 'on the papers'.

The FWC is now permitted to determine UFD, unfair termination and unfair deactivation applications 'on the papers' without a conference or hearing, provided the parties consent.

Delegation of certification power

The FWC President could delegate certain powers to the General Manager or FWC staff, including the power to conduct conferences, but not procedural functions.

The President is now able to delegate to senior staff the power to issue certificates confirming that a dismissal-related dispute has not been resolved, enabling parties to proceed to arbitration or court.

Supported bargaining agreements (SBA)

SBAs ceased to operate once an enterprise bargaining agreement (EBA) is made. Parties seeking to bargain for a replacement agreement had to first obtain a fresh bargaining authorisation from the FWC.

There is a new obligation on the FWC to make a SBA in relation to multi-employer bargaining that commences within two years of the nominal expiry date of an EBA that was made under a previous SBA.

Expanded access to unfair contract termination claims for truckies

The high income threshold ($190,100 per annum) limited who could apply to the FWC for an unfair deactivation, UFD or unfair contract term remedy.

A new 'road transport contractor high income threshold' (to be determined by Regulation) will be introduced.

EBAs and Commonwealth procurement

The FW Act prohibited discrimination against employers based on whether they are covered by a particular industrial instrument. This prevented the Commonwealth from using EBA coverage as a criterion when awarding government contracts.

There is now a new targeted exemption from the prohibition on discrimination against an employer that allows the Commonwealth to preference employers whose employees are covered by EBAs when awarding government grants or procuring goods and services.

Intractable bargaining workplace determination (IBWD)

Although terms in a IBWD could not be less favourable to an employee as compared to the same term in an EBA, this protection did not extend to the four 'mandatory' terms - disputes, flexibility, consultation and delegates' rights.

Now a mandatory term in a IBWD must not be less favourable to employees than a term of an EBA that deals with the same matter.

Area of law

Current law

Proposed change

FWC electronic lodgement facilities

The only applications accepted by the MyFWC electronic lodgment facilities were GP dismissal and UFD applications.

MyFWC will accept GP claims not involving dismissal, UFD and stop bullying at work applications and approval of EBAs.

Right to disconnect

No formal response was required before a dispute about the right to disconnect could be dealt with by the FWC.

Respondents will have 7 days to respond to employee right to disconnect dispute, including any jurisdictional objections. Any jurisdictional objection will need to include details the 'respondent is aware of'.

Permission for lawyers and paid agents in road transport contractual chain matters

A person required FWC permission to be represented by a lawyer/paid agent in road transport contractual chain matters.

A person will no longer require FWC permission to be represented by a lawyer/paid agent in road transport contractual chain conferences and hearings.

EBA approval - file copy of EBA

An application for EBA approval had to include a signed and dated copy of the EBA.

An application for EBA approval will need to be accompanied by a digital copy of the EBA in an "original digital format".

Collective Agreements (CA) for regulated workers

The rules for registering CAs between a regulated business and its workers (contractors and regulated transport contractors) was not consistent with the rules for EBAs.

The procedural FWC consultation notice and registration/variation application document service requirements that apply to EBAs will also apply to CAs for regulated workers to ensure consistency.

Jurisdictional objections for UFD

Employer responses to UFD applications had to include details of any jurisdictional objection that the respondent 'wants to raise'.

Employer responses to UFD applications must now include details of any jurisdictional objection that the 'respondent is aware of'.

Unfair contract terms in services contracts

The FWC Rules did not currently address unfair contract term applications or responses.

An application for an unfair contract term remedy will need to be accompanied by a copy of the contract. A response must be provided within 7 days, including any jurisdictional objection of which the respondent is aware.