Skip to main content

Ribbon

  • About us
  • Contact us
  • Glossary
  • News & media
Fair Work Commission logo

Fair Work Commission

Australia's national workplace relations tribunal
Search is closed
Menu is closed

Search

Main menu

  • Awards & agreements
    • Minimum wages & conditions
    • Awards
    • Agreements
    • Legislation & regulations for awards & agreements
  • Cases, decisions & orders
    • Major cases
    • Summaries of significant decisions
    • Decisions by keywords
    • FWC Bulletin
    • Archived decisions & orders
    • Transcripts
    • Court reviews
    • Historical cases
  • Registered organisations
    • Fact sheets, templates & webinars
    • Find registered organisations
    • Find State-recognised associations
    • Registration
    • Running a registered organisation
    • Entry permits
    • Industrial action
    • Gazette notices
    • Lodgment
  • Resources
    • Online lodgment
    • Forms
    • Where to get legal help
    • Research
    • Workplace Relations Education Series
    • Benchbooks
    • Fact sheets, guides & videos
    • Practice notes
    • Resources in other languages
    • Case studies
    • Quarterly practitioner updates
    • Related sites
  • Termination of employment
    • Unfair dismissal
    • General protections dismissal
    • Unlawful termination
    • How the Commission works
  • Disputes at work
    • Fairness in the workplace
    • Resolving issues at the Commission
    • JobKeeper disputes
    • General protections (unlawful actions)
    • Anti-bullying
    • Cooperative Workplaces
    • Industrial action
    • Awards & enterprise agreements disputes
    • Disputes about entry
    • How the Commission works
  • Home
  • Enterprise agreements benchbook
  • Bargaining
Back to top

Enterprise agreements benchbook

An overview of legal procedure & case law

Good faith bargaining

Print this page

 

Table of contents

On this page

  • Good faith bargaining requirements
  • What does it mean?
  • What is good faith bargaining?
  • What is capricious or unfair conduct?
  • What happens if the good faith bargaining requirements are not followed?
  • Case examples
  • References

 

Good faith bargaining requirements

See Fair Work Act 2009 s.228

One of the objects of Part 2-4 of the Fair Work Act is to provide a framework that enables collective bargaining in good faith, particularly at the enterprise level.

The Fair Work Act sets out the good faith bargaining requirements in section 228.

228 Bargaining representatives must meet the good faith bargaining requirements

  1. The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
    1. attending, and participating in, meetings at reasonable times;
    2. disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
    3. responding to proposals made by other bargaining representatives for the agreement in a timely manner;
    4. giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
    5. refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
    6. recognising and bargaining with the other bargaining representatives for the agreement.

Note:  See also section 255A (limitations relating to greenfields agreements)

  1. The good faith bargaining requirements do not require:
    1. a bargaining representative to make concessions during bargaining for the agreement; or
    2. a bargaining representative to reach agreement on the terms that are to be included in the agreement.

What does it mean?

The good faith bargaining requirements are generally self-explanatory.[1] They are designed to facilitate agreement making and assist bargaining representatives to bargain effectively.

The good faith bargaining system recognises that most employers and employees voluntarily and successfully bargain collectively in good faith and that most employers respect their employees' right to bargain collectively.[2]

In general, the legislative scheme might be described as one which seeks to promote agreement making but which does not compel parties to make concessions or to reach agreement. There is nothing inconsistent about encouraging parties to make agreements – and imposing an obligation upon them to try to do so – but at the same time not compelling parties to make concessions in bargaining. An agreement remains what the name implies.[3]

What is good faith bargaining?

Good faith bargaining requirements aim to ensure that all bargaining representatives act in an appropriate and productive manner. The requirements also seek to facilitate improved communication between bargaining representatives, which is expected to reduce the likelihood of industrial action.[4]

The Fair Work Act emphasises that there is an obligation to bargain in good faith. Bargain means to discuss the terms of any transaction. Discuss means to engage in conversation, examine by argument – to debate. At its most fundamental, enterprise bargaining is about communication both before and during formal negotiations. Each requirement for good faith bargaining has as its aim, purposeful or meaningful communication.[5]

Determining whether a bargaining representative is meeting the good faith bargaining requirements requires an objective assessment of the actions of the bargaining representatives.[6]

The good faith bargaining requirements do not require a bargaining representative to make concessions. A bargaining representative can meet the good faith bargaining requirements, whilst also adopting a 'hard line'.

Equally, the good faith bargaining requirements do not imply moderation of demands. The good faith bargaining requirements imply a preparedness to genuinely consider offers and proposals made by other bargaining representatives and to take account of the bargaining representatives' reasons for their proposals. If, having done these things, a bargaining party is unmoved, it may still be bargaining in good faith. The inability of parties to reach an agreement is not evidence that either party is not meeting the good faith bargaining requirements.[7]

What is capricious or unfair conduct?

The requirement in section 228(1)(e) ('refraining from capricious or unfair conduct ...') is intended to cover a broad range of conduct. For example, conduct may be capricious or unfair if an employer:

  • fails to recognise a bargaining representative
  • does not permit an employee who is a bargaining representative to attend meetings or discuss matters relating to the terms of the proposed agreement with fellow employees
  • dismisses or engages in detrimental conduct towards an employee because the employee is a bargaining representative or is participating in bargaining, or
  • prevents an employee from appointing his or her own representative.[8]

Whether conduct is capricious or unfair can only be ascertained by an examination of all of the circumstances in a particular case.[9]

Capricious is defined as 'guided by caprice; readily swayed by whim or fancy; inconstant' and caprice as 'an unaccountable change of mind or conduct…' in The New Shorter Oxford English Dictionary as cited in Liquor, Hospitality and Miscellaneous Union v Foster's Australia Ltd.[10]

What happens if the good faith bargaining requirements are not followed?

It is anticipated that most bargaining representatives will bargain voluntarily and cooperatively without the need for assistance or intervention from the Fair Work Commission. In the occasional cases where this is not occurring, the Fair Work Act provides mechanisms for the Commission to facilitate bargaining and, where necessary, make orders to ensure the integrity of the bargaining process.[11]

If bargaining representatives are not effectively bargaining together, an application can be made to the Commission for a bargaining order to be issued requiring bargaining representatives to bargain in good faith.[12]

Related information

  • Bargaining orders

Case examples

Parties NOT meeting good faith bargaining requirements

No real intention to negotiate

Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division [2012] FWAFB 1891 (Boulton J, Harrison SDP, Deegan C, 22 March 2012) [(2012) 217 IR 131].

Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia and Another [2012] FCA 764 (19 July 2012), [(2012) 206 FCR 576].

Endeavour Coal conducts coal mining activities at the Appin Mine in New South Wales and employs a range of staff employees who are engaged in supervisory, professional, administrative, clerical or technical duties. APESMA represents the industrial interests of such employees and had been seeking to negotiate an enterprise agreement to cover those employees. A majority support determination was issued requiring Endeavour Coal to bargain for a proposed enterprise agreement covering the employees.

At least 12 bargaining meetings were held between Endeavour Coal and APESMA over a twelve month period. APESMA produced various draft agreements for discussion. An impasse was reached in the negotiations. APESMA submitted that the impasse arose because the real position of Endeavour Coal was that it was never going to agree to an enterprise agreement covering the staff employees and that it therefore did not matter what concessions or changes to proposals APESMA made in the negotiations. Endeavour Coal submitted that the impasse was the result of APESMA not changing its position on various issues so as to address the concerns and objections raised by Endeavour Coal.

APESMA made an application to the Commission for a bargaining order against Endeavour Coal. The grounds for the application included that the conduct and actions of Endeavour Coal did not meet the good faith bargaining requirements and undermined the collective bargaining process. At first instance and on appeal, the Commission was satisfied that Endeavour Coal was not meeting the good faith bargaining requirements. The unwillingness of Endeavour Coal to enter into enterprise agreement negotiations with APESMA had continued in modified form after the making of the majority support determination. In particular, it was noted that Endeavour Coal had refused during the bargaining process to make any substantive contribution to the possible content of an enterprise agreement or to put any proposals of its own.

The Commission concluded that Endeavour Coal was bargaining with APESMA with no real intention to negotiate an enterprise agreement and contrary to the good faith bargaining requirements, and made a number of bargaining orders. On appeal, the Full Bench agreed with the Commission's conclusion and adopted all but one of the orders. Endeavour Coal sought judicial review of the Full Bench's decision. The Federal Court agreed with the conclusion that Endeavour Coal was not meeting the good faith bargaining requirements in certain respects, but ultimately concluded that some of the orders made were outside the power of the Commission to make.

NOT capricious or unfair conduct

Parties unable to agree after very long period of negotiation

Construction, Forestry, Mining and Energy Union (Mining and Energy Division) v Tahmoor Coal Pty Ltd [2010] FWAFB 3510 (Giudice J, McCarthy DP, Larkin C, 5 May 2010), [(2010) 195 IR 58].

At first instance, the Commission refused an application by the CFMEU for a bargaining order directed to Tahmoor Coal.

The Commission found that the order as sought would limit Tahmoor's ability to communicate directly with its employees in relation to the matters which were the subject of bargaining. It would also stop Tahmoor putting a proposed enterprise agreement to the employees for a vote for 60 days unless the bargaining representatives agreed to the terms of the proposed agreement or the Commission had determined that the negotiations had reached an impasse.

The Full Bench found that the Commission was entitled to conclude that after a very lengthy period of negotiations the parties were simply unable to agree. In those circumstances, it was open to the Commission to conclude that it was not capricious or unfair conduct for the respondent to seek to explain its negotiating position to the employees directly, or to put its proposed agreement to the employees at a ballot. There was no error in the finding that Tahmoor Coal did not breach the good faith bargaining requirements.

Capricious or unfair conduct

Proposed agreement to be put to a vote

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Ridders Fresh Pty Ltd T/A Tibaldi Smallgoods; Australasian Meat Industry Employees' Union, The-Victorian Branch v Ridders Fresh Pty Ltd T/A Tibaldi Smallgoods [2013] FWC 1250 (Roe C, 27 February 2013).

The employer commenced enterprise bargaining with employees and the AMEIU in late 2012. A number of meetings were held and some issues agreed upon.

On 7 February 2013, the employer was advised that a number of employees to be covered by the proposed enterprise agreement had joined the AMWU (there was no dispute regarding the eligibility of the employees to do so) and that those employees wished to be represented by the AMWU with respect to bargaining for the proposed enterprise agreement.

On 11 February 2013, an AMWU representative met with the employer to discuss the proposed enterprise agreement and it was agreed that the parties would meet again on 15 February 2013 to discuss the possibility of a separate enterprise agreement for maintenance employees (who were AMWU members) and the AMWU's log of claims.

At the meeting on 15 February 2013, the employer advised the AMWU that the proposed agreement would be put to a vote on 21 February 2014.

The AMWU made an application for bargaining orders to prevent the vote taking place before the AMWU had the opportunity to advance its log of claims and receive a response on those claims from the employer.

The Commission concluded that, in the circumstances, the employer's decision to proceed with the vote was capricious and unfair as it was directly inconsistent with the understanding of the AMWU and its members regarding the purpose of the meeting on 15 February 2013. The Commission concluded that the conduct of the employer effectively denied the AMWU recognition and any real opportunity for bargaining.

The Commission ordered that the employer refrain from holding a vote and that two further bargaining meetings be held.

References

[1] Explanatory Memorandum to Fair Work Bill 2008 at para. 951.

[2] Explanatory Memorandum to Fair Work Bill 2008; Financial Impact Statement at para. 155.

[3] Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division) [2012] FWAFB 1891 (Boulton J, Harrison SDP, Deegan C, 22 March 2012) at para. 27, [(2012) 217 IR 131].

[4] Explanatory Memorandum to Fair Work Bill 2008; Financial Impact Statement at para. 161.

[5] Fair Work Australia v Union of Christmas Island Workers; Phosphate Resources Limited [2012] FWA 1081 (Cloghan C,16 February 2012) at para. 72, [(2012) 218 IR 182].

[6] ibid., at para. 74.

[7] Re Public Transport Industry Print L5622 (AIRC, Hancock SDP, 30 September 1994), 3, see also Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 310 (22 March 1999) at para. 45.

[8] Explanatory Memorandum to Fair Work Bill 2008 at para. 951.

[9] Construction, Forestry, Mining and Energy Union (Mining and Energy Division) v Tahmoor Coal Pty Ltd [2010] FWAFB 3510 (Giudice J, McCarthy DP, Larkin C, 5 May 2010) at para. 7, [(2010) 195 IR 58].

[10] Liquor, Hospitality and Miscellaneous Union v Foster’s Australia Ltd [2009] FWA 750 (Kaufman SDP, 28 October 2009) at para. 13.

[11] Explanatory Memorandum to Fair Work Bill 2008 at para. 946.

[12] Explanatory Memorandum to Fair Work Bill 2008; Financial Impact Statement at para. 159.

Updated time

Last updated

24 May 2019

 

 

Bookmark/Search this post

Facebook logo Google+ logo Twitter logo

 

Page feedback

Did you find what you were looking for?

Please note: If you would like a response to your question, please contact us or lodge a complaint. This feedback is only about content on this page and will be used to improve website usability. The comments are not monitored for personal information or workplace complaints. 

Mini sites

  • Annual Report 2013–14
    • Reader's guide
    • 1. Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements 2013–14
    • 2. About the Commission
      • Who we are and what we do
      • Our structure
      • Outcome and program structure
      • Our clients and stakeholders
        • In focus—Small Business Outreach
      • Our future direction
        • In focus–New website
        • In focus–Virtual tour
        • In focus–Mock hearings
      • Our history
    • 3. Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
        • In focus–Pay Equity Unit
      • Orders relating to industrial action
        • Case study–Emergency Services Telecommunications Authority
        • Case study–Sydney Water
      • Processes relating to modern awards
        • In focus–4 yearly review of awards
      • Approving agreements
        • Case study–Catholic Education Victoria
        • Case study–Orora Fibre Packaging
      • Regulating registered organisations
      • Determining anti-bullying applications
        • In focus–Setting up the anti-bullying jurisdiction
        • Case study–Anti-bullying
      • Key performance indicators
    • 4. Management and accountability
      • Corporate governance
      • Planning and development
      • Ethical standards
      • Accountability
      • Our workforce
      • Employee pay and entitlements
      • Service Charter, complaints and Code of Conduct
      • Financial management
    • 5. Appendices
      • A | Member activities
      • B | List of Members
      • C | Panel assignments
      • D | Methodology for Chart 2–Matters dealt with by the Commission and its predecessors 1998–99 to 2013–14
      • E | Promoting fairness and improving access
      • F | Efficiency and innovation
      • G | Increasing accountability
      • H | Productivity and engaging with industry
      • I | Documents relating to the work of the Commission
      • J | Fair Work Commission addresses
      • K | Lodgment and case load statistics
      • L | Methodology for Chart 6–Number of Commission sittings, various
      • M | Subscription services
      • N | Information on specific statutory requirements
      • O | Fraud Control Certificate
      • P | Fair Work Commission Service Charter
      • Q | Financial statements
        • Independent Audit Report
        • Statement by the General Manager and Chief Financial Officer
        • Statement of Comprehensive Income
        • Statement of Financial Position
        • Statement of Changes in Equity
        • Cash Flow Statement
        • Schedule of Commitments
        • Schedule of Administered Items
        • Notes to the financial statements
          • Note 1: Summary of Significant Accounting Policies
          • Note 2: Events after the Reporting Period
          • Note 3: Expenses
          • Note 4: Income
          • Note 5: Fair Value Measurements
          • Note 6: Financial Assets
          • Note 7: Non-financial Assets
          • Note 8: Payables
          • Note 9: Provisions
          • Note 10: Cash Flow Reconciliation
          • Note 11: Contingent Liabilities and Assets
          • Note 12: Senior Executive Remuneration
          • Note 13: Remuneration of Auditors
          • Note 14: Financial Instruments
          • Note 15: Financial Assets Reconciliation
          • Note 16: Administered Income
          • Note 17: Administered Payables
          • Note 18: Administered Cash Flow Reconciliation
          • Note 19: Administered Contingent Liabilities and Assets
          • Note 20: Appropriations
          • Note 21: Compliance with Statutory Conditions for Payments from the Consolidated Revenue Fund
          • Note 22: Compensation and Debt Relief
          • Note 23: Reporting of Outcomes
          • Note 24: Net Cash Appropriation Arrangements
      • R | Agency resource statement
      • S | Expenses and resources for outcome
      • T | Glossary
      • U | Acronyms and abbreviations
      • V | List of requirements
    • Letter of transmittal
    • Inquiries and copyright
    • Videos
    • Downloads
  • Annual Report 2014–15
    • Introduction
    • Preliminary information
      • Contents
      • Letter of transmittal
      • Readers guide
    • Part 1 Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements
    • Part 2 About the Commission
      • Outcome and programme structure
      • Who we are and what we do
      • Our structure
      • Our history
      • Our clients and stakeholders
      • Our future direction
      • Future directions - Continuing the change program
    • Part 3 Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Unlawful termination disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
      • Orders relating to industrial action
      • Processes relating to modern awards
      • Enterprise agreements
      • Determining anti-bullying applications
      • Regulating registered organisations
      • Key performance indicators
    • Part 4 Management and accountability
      • Corporate governance
      • Planning and development
      • Workplace health and safety
      • Business continuity
      • Ethical standards
      • Fair Work Commission values
      • Freedom of information
      • Accountability
      • The Commission's workforce
      • Employee pay and entitlements
      • Service Charter, complaints and code of conduct
      • Financial management
      • Agency resource statement
      • Expenses and resources for outcome
    • Acronyms and abbreviations
    • Part 5 Appendices
      • Appendix A
      • Appendix B
      • Appendix C
      • Appendix D
      • Appendix E
      • Appendix F
      • Appendix G
      • Appendix H
      • Appendix I
      • Appendix J
      • Appendix K
      • Appendix L
      • Appendix M
      • Appendix N
      • Glossary
  • Annual Report 2015–16
    • Preliminary information
      • Letter of transmittal
      • Readers' guide
    • Part 1: Overview
      • President's report
      • General Manager's report
    • Part 2: About the Commission
    • Part 3: Performance
      • Performance summary
      • Annual performance statements 2015–16
      • Operational performance
        • Applications lodged
        • Hearings & conferences
        • Information & assistance
        • Major application types
          • Unfair dismissals
          • General protections & unlawful termination disputes
          • Anti-bullying
          • Enterprise agreements
          • Resolving disputes
          • Industrial action
        • New Approaches
        • Setting the minimum wage
        • Modern awards
        • Regulating registered organisations
        • Appeals
      • Significant decisions
      • Case studies
        • Case study: Enterprise agreements pilot
        • Case study: Patrick & the MUA
        • Case study: Encouraging regulatory compliance
    • Part 4: Management & accountability
      • Corporate governance
      • Financial management
      • Other mandatory information
    • Appendices
      • Appendix A: List of Members
      • Appendix B: Panel assignments
      • Appendix C: Member activities
      • Appendix D: Lodgment & case load statistics
      • Appendix E: Registered organisations data
      • Appendix F: Performance reporting for the RSRT
      • Appendix G: Financial statements
      • Appendix H: Subscription services
      • Appendix I: Service charter
      • Appendix J: List of requirements
      • Appendix K: Expense & resources outcome, agency resource statement & financial performance analysis
    • Glossary
    • Acronyms & abbreviations
    • Contact us
  • Annual Wage Review 2013–14
  • Anti-bullying benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is workplace bullying?
    • Who is covered by workplace bullying laws?
      • Definition of ‘worker’
      • Definition of ‘constitutionally-covered business’
        • What is a person conducting a business or undertaking?
        • What is a Territory or a Commonwealth place?
        • What is a constitutional corporation?
        • What is the Commonwealth?
    • When is a worker bullied at work?
      • What does ‘at work’ mean?
      • Risk of continued bullying
      • Reasonable management action
    • Making an application
    • Responding to an application
    • If the worker has been dismissed
    • Commission processes
      • Procedural issues
      • Representation by lawyers and paid agents
    • Evidence
    • Outcomes
      • Dismissing an application
      • Contravening an order of the Commission
    • Associated applications
      • Costs
      • Appeals
      • Role of the Court
  • Corporate Plan 2018–19
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Culture
    • 5. Capability
    • 6. Performance
  • Corporate Plan 2019–20
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Our focus
    • 5. Culture
    • 6. Capability
    • 7. Performance
  • Corporate Plan 2020-21
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Key activities
    • 5. Capability
    • 6. Risk
    • 7. Performance
  • Enterprise agreements benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is an enterprise agreement?
      • Single-enterprise agreement
      • Multi-enterprise agreement
      • Differences between single and multi-enterprise agreements
      • Greenfields agreement
    • Content of an enterprise agreement
      • Permitted matters
      • Coverage
      • Scope – who will be covered?
      • Terms & conditions of employment
      • Base rate of pay
      • Nominal expiry date
      • Mandatory terms
      • Flexibility term
      • Consultation term
      • Dispute settlement term
      • Optional terms
      • Terms that cannot be included
        • Terms that exclude the NES
        • Unlawful terms
        • Designated outworker terms
    • Agreement making process
      • Representation
      • Employee right to be represented
      • Bargaining representatives
    • Bargaining
      • Good faith bargaining
      • How long does bargaining take?
    • Voting
      • Voting process
      • Who can vote?
      • Timeframe for vote
      • Voting methods
      • When is an agreement made?
      • If parties cannot agree
    • Making an application
      • Common defects & issues
        • National Employment Standards
        • Better off overall test
        • Mandatory terms
        • Other terms
        • Pre-approval requirements
        • Forms & lodgment
      • Who must apply
      • Timeframe to apply
      • Material to accompany application
      • Signing an agreement
      • Employer must notify employees
    • Commission approval process
      • Genuine agreement
        • Minor procedural or technical errors
      • Where a scope order is in operation
      • Particular kinds of employees
      • Better off overall test (BOOT)
        • When an agreement passes
        • Classes of employees
        • Which award applies
        • Advice about coverage
        • Loaded rates of pay
      • Public interest test
      • Undertakings
      • Powers of the Commission
    • Associated applications
      • Majority support determinations
      • Authorisations to commence bargaining
        • Single interest employer authorisations
        • Ministerial declaration
        • Low-paid authorisations
      • Scope orders
      • Bargaining orders
      • Serious breach declarations
      • Disputes
      • Workplace determinations
        • Low-paid
        • Industrial action related
        • Bargaining related
      • Role of the Court
      • Appeals
      • Varying enterprise agreements
        • Varying by agreement
        • Ambiguity or uncertainty
        • Discrimination
      • Terminating enterprise agreements
        • Terminating by agreement
        • After its nominal expiry date
      • Terminating individual agreements
  • General Manager reporting requirements
  • General protections benchbook
    • Glossary & naming conventions
    • Overview of benchbook
      • When is a person covered by the general protections?
    • What are the general protections?
    • How do the general protections work?
      • Rebuttable presumption as to reason or intent
    • Coverage for general protections
      • What is a constitutionally-covered entity?
      • What is a Territory or a Commonwealth place?
      • What is a trade and commerce employer?
      • What is a Territory employer?
      • What is a national system employer?
    • What if I am not covered?
    • What is adverse action?
      • What is dismissal?
      • Injuring employee in their employment
      • Altering the position of the employee
      • Discriminating
      • Threatened action and organisation of action
      • Exclusions
    • Workplace rights protections
      • Meaning of workplace right
      • Coercion
      • Undue influence or pressure
      • Misrepresentations
      • Requiring the use of COVIDSafe
    • Industrial activities protections
      • What are industrial activities?
      • Coercion
      • Misrepresentations
      • Inducements – membership action
    • Other protections
      • Discrimination
        • Race
        • Colour
        • Gender identity & sexual orientation
        • Age
        • Physical or mental disability
        • Marital status
        • Family or carer’s responsibilities
        • Pregnancy
        • Religion
        • Political opinion
        • National extraction
        • Social origin
      • Exceptions
      • Temporary absence – illness or injury
      • Bargaining services fees
      • Coverage by particular instruments
      • Coercion – allocation of duties to particular person
    • Sham arrangements
      • Misrepresenting employment
      • Dismissing to engage as independent contractor
      • Misrepresentation to engage as independent contractor
    • Making an application
      • Dismissal applications
        • Timeframe for lodgment
        • Extension of time for lodging an application
      • Non-dismissal applications
      • Other types of applications
        • Multiple actions relating to dismissal
        • Unfair dismissal
        • Unlawful termination
        • Court application
        • Discrimination
    • Power to dismiss applications
    • Evidence
    • Commission process
      • Conferences & hearings
      • Dealing with different types of general protections disputes
      • Rescheduling or adjourning matters
      • Representation by lawyers and paid agents
      • Bias
    • Outcomes
    • Costs
      • When are costs ordered by the Commission?
      • Costs against representatives
    • Appeals
    • Role of the Court
      • Enforcement of Commission orders
      • Types of order made by the Court
  • Industrial action benchbook
    • Glossary & naming conventions
    • What is industrial action?
      • Unprotected industrial action
        • Orders to stop or prevent unprotected industrial action
      • Protected industrial action
        • Immunity
        • Common requirements
        • Employee claim action
        • Employer response action
        • Employee response action
        • Pattern bargaining
    • Taking protected industrial action
      • Protected action ballots
        • Who may apply?
        • Making an application
        • Commission process
        • Varying a protected action ballot order
        • Revoking a protected action ballot order
      • Voting
        • Ballot agents
        • Who may vote – roll of voters
        • Ballot papers
        • Voting procedure
        • Scrutiny of the ballot
        • Results of the ballot
        • When is industrial action authorised?
      • Notice requirements
      • Commencing protected industrial action
    • Payments relating to industrial action
      • Partial work bans
      • Unprotected industrial action – payments
      • Standing down employees
    • Suspension or termination of protected industrial action
      • Powers of the Commission
        • When the Commission may suspend or terminate
        • When the Commission must suspend or terminate
          • Threats to persons or the economy
          • Suspending industrial action
        • Requirements relating to a period of suspension
      • Powers of the Minister
    • Enforcement
    • Appeals
  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
      • Stand downs that are not jobkeeper enabling stand downs
      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
    • Jobkeeper enabling directions – legacy employers
      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
    • Agreements about days or times of work
      • Agreements about days or times of work – entitled employers
      • Agreements about days or times of work – legacy employers
      • Termination of an agreement about days or times of work
    • Employer payment obligations
      • Wage condition
      • Minimum payment guarantee
      • Hourly rate of pay guarantee
    • Agreements about annual leave
    • Protections
    • Disputes we cannot assist with
    • Applications to deal with a dispute
      • Who can make an application
      • Responding to an application
      • Objecting to an application
      • Discontinuing an application
    • Commission process
      • General information
      • Conferences & hearings
      • Procedural issues
    • Evidence
    • Outcomes
      • Contravening an order
      • Appeals
      • Role of the Court
    • Attachments
  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
            • First registration of an industrial organisation
          • Judges & conciliators
          • The Boilermakers' Case
            • The dispute & appeals
        • Commission
          • Post Boilermakers 1956-1973
          • Hawke & Keating governments
            • Industrial Relations Court
          • Howard Government
        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
    • Past Presidents
    • Past Members
      • Past Members 1956 to present
      • Past Members to 1956
  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

Footer

  • Site map
  • Legal
  • Copyright
  • Accessibility

Coronavirus (COVID-19) information