Commonwealth Numbered Acts

FAIR WORK AMENDMENT ACT 2012 (NO. 174, 2012) - SCHEDULE 6

Part 1 -- Time limits for making applications

Fair Work Act 2009

1  Paragraph 394(2)(a)

Omit "14", substitute "21".

Part 2 -- Power to dismiss applications

Fair Work Act 2009

2  After section 399

Insert:

399A   Dismissing applications

             (1)  The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

                     (a)  failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

                     (b)  failed to comply with a direction or order of the FWC relating to the application; or

                     (c)  failed to discontinue the application after a settlement agreement has been concluded.

Note 1:       For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2:       The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

             (2)  The FWC may exercise its power under subsection (1) on application by the employer.

             (3)  This section does not limit when the FWC may dismiss an application.

3  At the end of subsection 587(1)

Add:

Note:          For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

Part 3 -- Costs orders against parties

Fair Work Act 2009

4  After section 400

Insert:

400A   Costs orders against parties

             (1)  The FWC may make an order for costs against a party to a matter arising under this Part (the first party ) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

             (2)  The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

             (3)  This section does not limit the FWC's power to order costs under section 611.

5  Section 402

Before "401", insert "400A or".

6  Paragraph 403(1)(b)

Before "401", insert "400A or".

7  Subsection 403(2)

Before "401", insert "400A or".

8  Subsection 611(2) (note)

After "under sections 376,", insert "400A,".

Part 4 -- Costs orders against lawyers and paid agents

Fair Work Act 2009

9  Subsection 401(1)

Repeal the subsection, substitute:

             (1)  This section applies if:

                     (a)  an application for an unfair dismissal remedy has been made under section 394; and

                     (b)  a person who is a party to the matter has engaged a lawyer or paid agent (the representative ) to represent the person in the matter; and

                     (c)  under section 596, the person is required to seek the FWC's permission to be represented by the representative.

          (1A)  The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:

                     (a)  the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or

                     (b)  of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.