Fair Work Commission

Introduction

In certain circumstances, the Fair Work Commission may make industrial action related workplace determinations, bargaining related workplace determinations, or low-paid workplace determinations.

The factors that the Commission must take into account in deciding which terms to include in a workplace determination include the following:

• the merits of the case
• the interests of the employers and employees
• how productivity might be improved in the enterprise or enterprises concerned
• the public interest
• the conduct of the bargaining representatives.

Low-paid workplace determinations

Bargaining representatives for a proposed agreement, or a union that is entitled to represent the industrial interests of an employee who performs work under the proposed agreement, may apply for a low-paid authorisation in relation to a proposed multi-enterprise agreement.

In deciding whether to make such an authorisation, the Commission must take into account a range of factors, including whether doing so would assist low-paid employees who have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level.

If a low-paid authorisation is in place and one or more of those bargaining are unable to reach agreement, the Commission may make a low-paid workplace determination.

Industrial action related workplace determinations

The Commission must make an industrial action related workplace determination if:

• a termination of industrial action instrument is made
• the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining after the end of the post-industrial action negotiating period.

Bargaining related workplace determinations

The Commission must make a bargaining related workplace determination if:

• a serious breach declaration is made
• the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining after the end of the post-declaration negotiating period.

Operation of workplace determinations

A workplace determination operates from the day on which it is made.

A workplace determination ceases to operate on the earlier of the following days:

• the day on which a termination of the determination comes into operation
• the day on which an enterprise agreement or another workplace determination that covers the employee in relation to the same employment comes into operation
• the day on which there is no employee to whom the agreement applies.

The Fair Work Act 2009 applies to a workplace determination as if it were an enterprise agreement.