Fair Work Act 2009

A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

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

An application for a bargaining order must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement.

The application may only be made at whichever of the following times applies:

if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

otherwise—at any time.

An employer that is required to give a notice of employee representational rights under subsection 173(1) cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice is given.

The bargaining representative may only apply for the bargaining order if the bargaining representative:

has concerns that:

one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

has given a written notice setting out those concerns to the relevant bargaining representatives; and

has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

considers that the relevant bargaining representatives have not responded appropriately to those concerns.

The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.