Fair Work Commission

About bargaining

Bargaining is the process by which one or more employers and employees negotiate the terms and conditions which will be included in an agreement.

Either side may be represented in the process by a bargaining representative.

The details and further assistance of agreement making can be found on our Making an agreement page.

When does bargaining begin?

Bargaining on a proposed enterprise agreement begins when:

Single enterprise agreement date calculator

The Fair Work Commission single enterprise agreement date calculator is a tool to help employers, representatives and bargaining representatives ensure that their process for agreement making and application for approval complies with the legislative timeframes. Find more details on single enterprise agreement date calculator.

Representation rights

The employer must take all reasonable steps to notify employees of the right to be represented as soon as practicable, and not later than 14 days, after the notification time.

The notice is given by providing employees with a copy of the notice of employee representational rights provided in Schedule 2.1 of the Fair Work Regulations 2009. The notice cannot contain any other content except details that the Regulations require the employer to insert or omit.

The notice should be given to each employee who will be covered by the agreement and who is employed at the notification time.

If a new person is employed after the notification time and the notice has already been provided to other employees, then the new person does not need to be given the notice.

Note: A vote cannot occur until at least 21 days after the last notice of representational rights has been given.

Bargaining representatives

A bargaining representative is a person nominated to participate in bargaining for a proposed enterprise agreement. A bargaining representative can be an employer, employee, union, industrial association, or any other person specified in writing by either the employer or employee.

The following are bargaining representatives:

• an employer who would be covered by the agreement
• any union who has a member that would be covered by the agreement (unless the member has specified in writing that he or she does not wish to be represented by that union)
• any union that has applied for a low paid authorisation that relates to the agreement
• any person specified in writing as their bargaining representative by either the employer or an employee who would be covered by the agreement.

Good faith bargaining

Those involved in the bargaining process, including bargaining representatives, are required to bargain in good faith.

The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

• attending, and participating in, meetings at reasonable times
• disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner
• responding to proposals made by other bargaining representatives for the agreement in a timely manner
• giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals
• refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining
• recognising and bargaining with the other bargaining representatives for the agreement.

The good faith bargaining requirements do not require a bargaining representative to:

• make concessions during bargaining for the agreement
• reach agreement on the terms that are to be included in the agreement.

Majority support determinations

If a majority of employees want to bargain with the employer to make a new agreement under the terms of the Fair Work Act 2009 (the Act) and the employer refuses, a bargaining representative for the employees can apply to the Fair Work Commission for a majority support determination under s.236 of the Act.

If the Commission makes this determination the employer is required to bargain with their employees to make a new agreement.