Fair Work Act 2009

A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:

an order excluding a bargaining representative for the agreement from bargaining;

an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

The regulations may:

specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.