Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 235

Intractable bargaining declaration

  (1)   The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if:

  (a)   an application for the declaration has been made; and

  (b)   the FWC is satisfied of the matters set out in subsection   (2); and

  (c)   it is after the end of the minimum bargaining period (see subsection   (5)) .

Matters of which the FWC must be satisfied before making an intractable bargaining declaration

  (2)   The FWC must be satisfied that:

  (a)   the FWC has dealt with the dispute about the agreement under section   240 and the applicant participated in the FWC's processes to deal with the dispute; and

  (b)   there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

  (c)   it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

What declaration must specify

  (3)   The declaration must specify:

  (a)   the date it is made; and

  (b)   the proposed enterprise agreement to which it relates; and

  (c)   any other matter prescribed by the procedural rules.

Operation of declaration

  (4)   The declaration:

  (a)   comes into operation on the day it is made; and

  (b)   ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.

End of the minimum bargaining period

  (5)   The end of the minimum bargaining period in relation to a proposed enterprise agreement is:

  (a)   if one or more enterprise agreements (the existing agreements ) apply to any of the employees that will be covered by the proposed agreement--the later of the following:

  (i)   the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;

  (ii)   the day that is 9 months after the day bargaining starts, as worked out under subsection   (6); or

  (b)   the day that is 9 months after the day bargaining starts, as worked out under subsection   (6).

  (6)   For the purposes of subparagraph   (5)(a)(ii) and paragraph   (5)(b), the day bargaining starts for a proposed agreement is:

  (a)   if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement--the day that the authorisation first comes into operation; or

  (b)   otherwise--the notification time for the proposed agreement.