See Fair Work Act 2009 ss.234–235
A bargaining representative for a proposed enterprise agreement may apply to the Fair Work Commission for a serious breach declaration in relation to the agreement.
Generally, a serious breach declaration is available where there are serious and sustained contraventions of a bargaining order that significantly undermine the bargaining process.
An application for a serious breach declaration must be accompanied by a copy of each of the bargaining orders in relation to the agreement which the applicant alleges have been contravened.
The Commission may make a serious breach declaration in relation to a proposed enterprise agreement if an application for the declaration has been made and the Commission is satisfied that:
In deciding whether or not all other reasonable alternatives to reach agreement have been exhausted, the Commission may take into account any matter the Commission considers relevant, including:
If made, a serious breach declaration must specify the proposed enterprise agreement to which the declaration relates.
A serious breach declaration comes into operation on the day on which it is made and ceases to operate when each employer specified in the declaration is covered by either an enterprise agreement or a workplace determination.
The consequence of a serious breach declaration being made in relation to an agreement is that the Commission may, in certain circumstances, make a bargaining related workplace determination in relation to the agreement.
 Fair Work Commission Rules 2013 r.30.