See Fair Work Act 2009 ss.229–232; Fair Work Regulations reg 2.11
A bargaining representative for a proposed enterprise agreement may apply to the Fair Work Commission for a bargaining order in relation to the proposed agreement.
Bargaining orders are designed to promote fair and efficient bargaining.
Employer initiates or agrees to bargain for a proposed enterprise agreement
Employer issues employees with a notice of employee representational rights
Employees may appoint bargaining representatives
Good faith bargaining
Representatives bargain for a proposed enterprise agreement
Application for a bargaining order
Bargaining order made by the Commission
Non-compliance with bargaining order
Serious breach declaration made by the Commission
Employer asks employees to approve proposed enterprise agreement (by voting)
Bargaining representative lodges enterprise agreement with the Commission for approval
The Commission approves enterprise agreement
An application for a bargaining order cannot be made unless the bargaining representative:
However, the Commission can consider an application for a bargaining order even if the notice or opportunity to respond requirements above have not been met, if the Commission is satisfied that it is appropriate in all the circumstances to do so.
An application for a bargaining order must be made by a bargaining representative.
An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.
An application may only be made at whichever of the following times applies:
The Commission may make a bargaining order in relation to a proposed enterprise agreement if:
Before making a bargaining order, the Commission must (in all cases) be satisfied that one of the following applies:
In addition to the above, before making a bargaining order the Commission must be satisfied:
The Commission should be:
"slow to interfere in the legitimate tactics undertaken by parties during the bargaining process unless an applicant for a bargaining order has demonstrated that there are sound reasons for so doing. There needs to be satisfaction that the good faith bargaining requirements are not being met."
An order under s.230 is discretionary and may only be made if the Commission is satisfied that it is reasonable in all the circumstances to make the order.
A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:
The types of bargaining orders that the Commission may make in relation to a proposed enterprise agreement include the following:
If the Commission is making a bargaining order to reinstate an employee, the Commission may make any of the following orders:
A bargaining order in relation to a proposed enterprise agreement comes into operation on the day on which it is made and ceases to be in operation at the earliest of the following:
See Fair Work Act s.233
A person to whom a bargaining order applies must not contravene a term of the order. This is a civil remedy provision.
A bargaining order is legally binding. However, the Commission does not itself have the power to enforce its orders.
A civil remedy provision is a provision of the Fair Work Act that is enforced by civil rather than criminal orders.
If a civil remedy provision is breached, an application can be made to a court for orders imposing a pecuniary penalty on the person who has breached the provision and for other orders such as an injunction or an order to pay compensation.
 Fair Work Act s.229(4)–(5).
 Liquor, Hospitality and Miscellaneous Union v Foster's Australia Ltd  FWA 750 (Kaufman SDP, 28 October 2009) at para. 20.
 Fair Work Regulations reg 2.11.