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Disputes
Introduction
The Fair Work Act 2009 provides for several ways for bargaining representatives to deal with disputes or issues which arise during the bargaining process for a proposed enterprise agreement.
Bargaining disputes
See Fair Work Act s.240
Whilst negotiating a new enterprise agreement, a bargaining representative can make an application for the Fair Work Commission to deal with a dispute between bargaining representatives about the agreement.
Applying for the Commission to deal with a bargaining dispute can be a way to advance negotiations if the bargaining representatives have reached an impasse or deadlock in their negotiations (although it is not necessary to have reached an impasse or deadlock before seeking the Commission's assistance).
Stage in bargaining process
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Employer initiates or agrees to bargain for a proposed enterprise agreement
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Employer issues employees with a notice of employee representational rights
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Employees may appoint bargaining representatives
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Good faith bargaining
Representatives bargain for a proposed enterprise agreement
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Application to deal with a bargaining dispute
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The Commission deals with the bargaining dispute
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Employer asks employees to approve proposed enterprise agreement (by voting)
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Bargaining representative lodges enterprise agreement with the Commission for approval
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The Commission approves enterprise agreement
Process of application
If the proposed enterprise agreement is:
- a single-enterprise agreement, or
- a multi-enterprise agreement in relation to which a low-paid authorisation is in operation;
the application may be made by one bargaining representative, whether or not the other bargaining representatives for the agreement have agreed to the making of the application.
Otherwise, a bargaining representative can only make an application if all of the bargaining representatives for the agreement agree.
Exception – greenfields agreements
If the proposed single-enterprise agreement is a greenfields agreement, and there has been a notified negotiation period for the agreement which has ended, then a bargaining representative cannot make an application for a bargaining dispute.[1]
Powers of the Commission when dealing with the dispute
The Commission may deal with a bargaining dispute (other than by arbitration) as it considers appropriate, including by:
- mediating or conciliating the dispute, or
- making a recommendation or expressing an opinion.[2]
The Commission may only arbitrate the dispute if all of the bargaining representatives for the proposed agreement have agreed that it may do so.[3]
If the Commission arbitrates a dispute, the Commission can make a decision and orders that the bargaining representatives will be bound by.
Updated time
Last updated
24 May 2019
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