See Fair Work Act s.412
Pattern bargaining is a course of conduct by a person who is a negotiating party to two or more proposed enterprise agreements, seeking common wages or conditions for two or more of those agreements, where the conduct extends beyond a single business.
The Fair Work Act does not actually proscribe pattern bargaining as such: rather it denies protection to industrial action taken in support of it, and makes specific provision for the grant of an injunction to stop or prevent such action.
A course of conduct by a person is pattern bargaining if:
There is no error in interpreting the expression 'common' to mean the 'same' or 'identical'.
It is correct to find that a union is not seeking 'common wages' if, at the time [that the application for an order to stop unprotected industrial action is made] the union has indicated a preparedness to negotiate different increments for different employers (even if the cumulative arithmetic of the increases ended up the same).
The course of conduct, to the extent that it relates to a particular employer, is NOT pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer.
The factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include whether the bargaining representative:
A bargaining representative bears the burden of proving that they were genuinely trying to reach an agreement. This is known as a reverse onus of proof. A reverse onus of proof applies because the bargaining representative is in a better position to know and to provide evidence of reasons for engaging in particular conduct.
This exception for pattern bargaining does not affect, and is not affected by, the meaning of the expression 'genuinely trying to reach an agreement' used elsewhere in the Fair Work Act.
In the context of this provision, the expression 'genuinely trying to reach an agreement' is limited to the issue as to whether pattern bargaining is occurring.
The use of template agreements is common in certain industries, particularly where there may be many small businesses that are contracting for work within a larger project.
An example of this is within the building and construction industry. Bargaining representatives may use template agreements as a starting point for negotiations based on their interests. However, if a union is seeking common terms in two or more agreements with two or more employers, then this may be considered pattern bargaining.
The existence and promotion of a template agreement is not of itself pattern bargaining.
See Fair Work Act s.422
The courts may grant an injunction against industrial action if a bargaining representative is engaging in pattern bargaining.
A court may grant an injunction on such terms as the court considers appropriate if:
 A Forsyth and A Stewart, FAIR WORK The New Workplace Laws and the Work Choices Legacy (1st ed, 2009), at p. 146.
 B Creighton and A Stewart, Labour Law (5th ed, 2010), at para. 22.40.
 Farstad Shipping (Indian Pacific) Pty Ltd v Maritime Union of Australia, The  FWC 8130 (Johns C, 17 November 2014) at para. 39; citing Re Trinity Garden Aged Care and another PR973718 (AIRCFB, Watson SDP, Acton SDP, Smith C, 21 August 2006) at paras 21–22, [(2006) 155 IR 124].
 ibid., at paras 28–31.
 Explanatory Memorandum to Fair Work Bill 2008 at para. 1662; see also Fair Work Act s.412(4).
 Fair Work Act s.412(5); see also John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)  FWAFB 526 (Giudice J, Watson SDP, Blair C, 29 January 2010) at paras 31–39, [(2010) 194 IR 239].
 Explanatory Memorandum to Fair Work Bill 2008 at para. 1663.
 Re Pinarello Blues Pty Ltd as Trustee for Judds Discretionary Trust T/A Yankalilla Hotel  FWCA 7698 (Bartel DP, 19 November 2015) at para. 88.