Resolution of bargaining disputes in the Fair Work Commission

The Fair Work Commission (FWC) has several dispute resolution roles in relation to collective bargaining under Pt 2-4 of the Fair Work Act 2009 (Cth) (FW Act). These include the FWC’s powers to deal with applications by a bargaining representative for:

• • bargaining orders, to address alleged breaches of the good faith bargaining obligations (see Bargaining orders);
• • majority support determinations, to address an employer’s refusal to bargain for an enterprise agreement (see Majority support determinations);
• • scope orders, to resolve disputes about the proposed coverage of an agreement (see Scope orders); and
• • low-paid authorisations, which enable the FWC to play a significant role in assisting parties with the negotiation of an agreement in the low-paid bargaining stream (see Low-paid authorisations).

In addition, s 240 of the FW Act confers broad powers on the FWC to deal with a bargaining dispute that the parties are unable to resolve themselves.

Where the negotiations relate to a proposed single-enterprise agreement or a multi-enterprise agreement in the low-paid bargaining stream, any one bargaining representative may apply for the FWC’s assistance under s 240 (regardless of whether the other bargaining representatives support the application).

In any other instance (for example, where the proposed agreement is a multi-enterprise agreement not in the low-paid stream), all of the bargaining representatives would need to agree to apply to the FWC for assistance under s 240.

The FWC is able to deal with a dispute under s 240 in any way that it considers appropriate, including by mediating, conciliating, making a recommendation or expressing an opinion.

See Resolution of bargaining disputes in the Fair Work Commission.