On 30 October 2012, the Federal Government introduced new amending legislation to the Fair Work Act 2009 (FW Act), through the Fair Work Act Amendment Bill 2012 (Amendment Bill).
In a media release, the Minister for Employment and Workplace Relations announced that the Amendment Bill would implement a number of the recommendations from the Fair Work Act Review Panel. The Government is still in the process of considering the remaining Review Panel recommendations. Some of the key changes in the Amendment Bill are to unfair dismissal laws, which are proposed to be amended as follows:
- Amending section 394 to provide employees with 21 days from the date of termination, rather than 14, to file an unfair dismissal claim;
- Including a new section 399A, which provides an express power for Fair Work Australia (FWA) to dismiss an unfair dismissal application where an applicant fails to attend a conference or hearing, fails to comply with a direction by FWA, or fails to discontinue an application after settlement has been reached;
- Including a new section 400A, which provides FWA with the discretion to award costs against a party (i.e. the employer or employee) where the party has caused costs to be incurred by the other party, due to an ‘unreasonable act or omission’; and
- Amending section 401(1), to provide FWA with the discretion to award costs against a lawyer or paid agent who would be required to seek permission to appear before FWA under section 596. This proposes to amend the existing position which only permits costs to be awarded ‘if FWA has granted permission’.
The last point is intended to clarify the current situation where FWA has held it does not have jurisdiction to award costs under section 401, on the basis that the offending party has not yet sought permission to appear before FWA, for example because a hearing had not yet taken place.
For example, in Department of Education and Early Childhood Development v A Whole New Approach  FWA 8040, Gooley C held that costs could not be awarded, as while the paid agent representing the employee had assisted in making the unfair dismissal application and engaged in correspondence with the Department (causing costs to be incurred), at the time the application for costs was made (after the matter had been discontinued), a hearing had not occurred and hence the paid agent had not yet sought permission to appear under section 596.
These changes, as drafted, are unlikely to create significant changes for either employers or employees. Firstly, the extension of the filing period under section 394 will simply reflect the fact that FWA will often extend the period of time made for out of time applications (see for example the recent case of Patricia Bucknor v Aero-Care Flight Support Pty Ltd  FWA 9059), where extenuating circumstances exist.
The most significant development may be the potential for costs orders to be sought against an employer’s lawyers who assist in defending unfair dismissal claims. Section 401(1) will now expressly state that costs may be awarded against a representative if the representative encourages the person (i.e. employer) to ‘respond to’ the matter, where there are no reasonable prospects of success.
The wording of the new amendment to section 401 will continue to exclude those lawyers and/or paid agents who are not required to seek permission to appear – such as union representatives.