Intractable bargaining workplace determinations

If parties still can’t resolve a bargaining dispute after an intractable bargaining declaration is made, we must make an intractable bargaining workplace determination.

In an intractable bargaining workplace determination, we decide the terms and conditions of employment for the parties in dispute. The determination replaces what would have been the enterprise agreement that the parties were bargaining for.

An intractable bargaining workplace determination can only be made by a Full Bench of the Commission. It must be made as quickly as possible:

• after the intractable bargaining declaration was made (if there was no post-declaration negotiating period), or
• after the post-declaration negotiating period has ended (if there was a post-declaration negotiating period).

When making an intractable bargaining workplace determination, we must consider:

• the merits of the case
• the interests of the employers and employees who will be covered by the determination
• the significance of any arrangements or benefits in an enterprise agreement that applies to the employees and employers immediately before the determination is made
• the public interest
• how productivity in the relevant enterprise(s) might be improved
• the reasonableness of the conduct of the bargaining representatives during bargaining
• the extent that bargaining representatives have complied with good faith bargaining requirements, and
• incentives to continue bargaining later.

An intractable bargaining workplace determination must include agreed terms and core or mandatory terms.

We must be able to approve the terms of a determination as if they were included in a proposed enterprise agreement. This includes only making terms that collectively would meet the better off overall test (BOOT). 

If an enterprise agreement applies to any employees or union bargaining representatives immediately before an intractable bargaining workplace determination is made, the terms of the workplace determination must not be less favourable to those employees compared to that previous enterprise agreement.

This ‘not less favourable test’ does not apply to a term of the determination that provides for a wage increase.

A determination must include any agreed terms. Agreed terms are terms that the bargaining representatives have already agreed should be included.

They can be terms that were agreed on:

• at the time the application for an intractable bargaining declaration was made
• at the time the intractable bargaining declaration was made, or
• at the end of the post-declaration negotiating period.

A determination must include those terms that an enterprise agreement would also be required to have, including: 

• Coverage — The employer and employees to be covered, and any employee organisation or union that was a bargaining representative
• Dispute settlement — For any matters arising under the determination or relating to the NES unless we are satisfied that other terms would meet dispute settlement term requirements
• Consultation — The model consultation term unless we are satisfied that other terms would meet consultation term requirements
• Flexibility — The model flexibility term unless we are satisfied that agreed terms would satisfy flexibility clause requirements
• Nominal expiry date — A nominal expiry date for the declaration, not more than 4 years after the operation date of the determination
• Delegates’ rights term – A term which includes the rights for the workplace delegates to whom the determination applies.

Find out more about the terms and dates to put in an agreement.

Our website also contains information about Intractable bargaining declarations, which must be made before we can make an intractable bargaining workplace determination. 

Fair Work Act 2009: Section 269, section 270, section 270A, section 274