Fair Work Commission

Introduction

In some circumstances the parties involved in bargaining for an enterprise agreement may reach a point where they cannot continue because they have an issue that they cannot resolve between themselves. In this situation the parties can seek assistance from the Fair Work Commission to help reach agreement on the issue and finish making the enterprise agreement.

Bargaining orders

A bargaining representative may apply to the Commission for a bargaining order in relation to the agreement if the bargaining representative has concerns that:

• one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements
• the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement.

Scope orders

A bargaining representative for a proposed single-enterprise agreement may apply to the Commission for an order specifying the employer or employers, and the employees, who would be covered by the proposed agreement. Factors to be taken into account by the Commission in deciding whether to make a scope order include whether bargaining for the agreement is progressing efficiently or fairly and whether all employees sought to be specified in the order would be covered by the agreement.

In determining whether the group of employees to be covered by the agreement have been fairly chosen, the Commission must take into account whether the group is geographically, operationally or organisationally distinct.

Serious breach declarations

If a bargaining representative contravenes one or more bargaining orders the Commission can make a serious breach declaration. The contraventions must be serious and sustained and have significantly undermined bargaining for the agreement.

If the Commission makes a serious breach declaration it may issue a workplace determination – see Part 2-5, of the Fair Work Act 2009.