Good faith bargaining requirements

Bargaining representatives for an enterprise agreement must meet the good faith bargaining requirements set out in s 228 of the Fair Work Act 2009 (Cth) (FW Act).

These obligations relate mainly to the process of bargaining, including requirements to meet with other bargaining representatives, disclose information, give genuine consideration and respond to proposals made by other bargaining representatives.

Going more to the substantive conduct of the parties in negotiations, bargaining representatives must also recognise and bargain with other representatives — and not engage in capricious or unfair conduct that undermines collective bargaining or freedom of association.

However, the good faith bargaining requirements do not require bargaining representatives to make concessions or reach agreement on terms to be included in an agreement.

The good faith bargaining requirements do not apply to a multi-enterprise agreement that is a greenfields agreement.

See Good faith bargaining requirements.

Bargaining orders

Non-compliance with the good faith bargaining requirements may result in the making of a bargaining order by the Fair Work Commission (FWC).

See Bargaining orders.

Serious breach declarations

Repeated breaches of bargaining orders may give rise to the making of a serious breach declaration by the FWC — which could in turn lead to the making of a bargaining related workplace determination (in effect, an arbitrated outcome).

See Serious breach declarations.

Bargaining related workplace determinations

Civil penalties may also be imposed by a court in respect of breaches of bargaining orders, and injunctions or other orders may be granted to ensure compliance.

While the good faith bargaining requirements apply to all agreements (other than multi-enterprise greenfields agreements), the enforcement mechanisms are only available in relation to a single enterprise agreement, or a multi-enterprise agreement for which a low-paid authorisation is in operation.

See Bargaining related workplace determinations.