Fair Work Act 2009

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

an application for the declaration has been made; and

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

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

The FWC must be satisfied that:

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

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

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

The declaration must specify:

the date it is made; and

the proposed enterprise agreement to which it relates; and

any other matter prescribed by the procedural rules.

The declaration:

comes into operation on the day it is made; and

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

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

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:

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;

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

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

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

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

otherwise—the notification time for the proposed agreement.