Intractable bargaining declarations

If parties have been bargaining for a long time and are not making any progress, they can apply to us for an intractable bargaining declaration.

A bargaining representative can apply for an intractable bargaining declaration if the parties:

• have been bargaining for at least 9 months (the minimum bargaining period) and have reached an impasse;
• have already tried to resolve the bargaining dispute including by making an application to us (section 240);
• want assistance to resolve the dispute.

If we make an intractable bargaining declaration and bargaining representatives still can’t resolve the dispute, we must make an intractable bargaining workplace determination. 

By making this determination, we will set terms and conditions of employment to cover employees that would have been covered by the agreement.

We must make a determination as soon as possible after making a declaration.

You can apply for an intractable bargaining declaration if you are a bargaining representative for one of the following proposed agreements:

• single-enterprise agreements
• supported bargaining agreements
• single interest employer agreements

You cannot apply for an intractable bargaining declaration if you are bargaining for a greenfields or cooperative workplace agreement.

We may make an intractable bargaining declaration if:

1. It is after the end of the minimum bargaining period, and

2. We are satisfied that: 

• we have dealt with the dispute about the agreement under section 240 and the applicant participated in this process
• there is no reasonable prospect of agreement being reached if we do not make the declaration
• it is reasonable in all the circumstances to make the declaration, taking into account the views of all of the bargaining representatives.

The minimum bargaining period is 9 months.

If enterprise agreements currently apply – If any enterprise agreements apply to any employees that will be covered by the proposed agreement, the end of the minimum bargaining period is 9 months after the later of:

• the nominal expiry date of the existing agreement(s), or
• the day that bargaining starts.

The day that bargaining starts – This is the date of the notification time for the proposed agreement. 
Supported bargaining and single interest employer authorisations – If there is a supported bargaining authorisation or a single interest employer authorisation in place, the day that bargaining starts is the day the authorisation came into operation.

We can specify a post-declaration negotiation period in an intractable bargaining declaration. This allows us to continue to assist parties to resolve the dispute. We may:

• conduct conciliation conferences, or
• provide other assistance to the parties.

A post-declaration negotiating period starts on the day the declaration is made. It ends on the date named by us in the declaration.

We can extend this period if we consider it appropriate and will take into account any views of the bargaining representatives.

Apply for an intractable bargaining declaration (Form F33)  

Fair Work Act 2009:  Section 235

Our website also contains information about intractable bargaining workplace determinations, which must be made by us after an intractable bargaining declaration is made.