FWC Good Faith Bargaining Orders and Majority Support Determinations
How the Fair Work Commission makes good faith bargaining orders under s 240 and majority support determinations under s 230 of the Fair Work Act.
Good faith bargaining requirements
Section 228 of the Fair Work Act 2009 outlines six requirements that bargaining representatives must satisfy to demonstrate good faith bargaining when negotiating a proposed enterprise agreement. These requirements cover aspects such as attending meetings, disclosing information, responding to proposals, and providing reasons for responses. Multi-employer bargaining closing loopholes streams details further considerations.
Specific obligations include attending and participating in meetings at reasonable times, disclosing relevant information (excluding confidential or commercially sensitive data) promptly, and giving genuine consideration to proposals from other representatives. Representatives must also provide reasons for their responses and avoid conduct that undermines freedom of association or collective bargaining.
Importantly, meeting these requirements does not obligate a bargaining representative to agree to specific terms or make concessions. The Act’s focus is on the *process* of bargaining, not the outcome.
FWC bargaining orders (s 240 and Subdivision B)
Section 240 enables a bargaining representative to seek Fair Work Commission (FWC) intervention in a bargaining dispute. The Commission can address the dispute through various methods, including mediation, conciliation, and by making recommendations or expressing opinions.
Subdivision B of the Fair Work Act allows a bargaining representative to apply for a ‘bargaining order’ if good faith bargaining requirements are not being met, or if bargaining is not proceeding efficiently or fairly. Before making such an application, the applicant must typically provide written notice of their concerns to the other representatives and allow a reasonable time for a response.
The FWC can issue a bargaining order under section 230 only if it is satisfied that certain conditions are met. These include a failure to meet good faith bargaining requirements or inefficient bargaining, and that making an order is reasonable given the circumstances.
Majority support determinations (s 236)
Section 236 enables a bargaining representative for employees who would be covered by a proposed single-enterprise agreement to seek a ‘majority support determination’ from the Fair Work Commission (FWC). This process allows employees to compel an employer to bargain where the employer has not yet agreed to do so.
The FWC will grant a majority support determination if it is satisfied that a majority of employees who would be covered by the agreement want to bargain, the employer has not yet agreed to bargain, the group of employees is fairly chosen, and it is reasonable to make the determination. The FWC uses various methods to ascertain this support, including petitions, surveys, or secret ballots, although no specific method is mandated.
Following a majority support determination, the employer is legally obliged to bargain with the employee’s bargaining representative, and must adhere to the good faith bargaining requirements outlined in section 228.
Other bargaining orders and remedies
The Fair Work Commission (FWC) has the power to issue various orders beyond those directly related to good faith bargaining and majority support. Section 235 allows the FWC to make a ‘scope order’ to adjust the group of employees covered by a proposed enterprise agreement. This is used where the initial scope of the agreement has not been fairly determined. The FWC may also issue orders under section 269, addressing situations where bargaining has fundamentally broken down or where industrial action is causing substantial economic harm. Multi-employer bargaining closing loopholes streams apply to all bargaining streams, including single interest, supported bargaining, and cooperative workplaces.
Bargaining orders issued by the FWC are not limited to requirements about good faith. They can encompass a range of directions intended to facilitate agreement-making. The FWC can also make FWC protected action ballot orders section 443 in certain circumstances.
Non-compliance with bargaining orders carries consequences. Part 4-1 of the Fair Work Act outlines civil penalties that may be imposed for failing to adhere to directions issued by the FWC.
Frequently asked
Can the FWC force an employer to agree to terms?
No. The good faith bargaining requirements do not require a bargaining representative to make concessions or reach agreement (s 228(2)). However, the FWC can make bargaining orders requiring compliance with the procedural good faith requirements and ultimately, in limited circumstances, can make a workplace determination under Part 2-5.
How does a union prove 'majority support' for a determination?
There is no prescribed method. The FWC accepts evidence including signed petitions, online or paper surveys conducted independently, secret ballots run by the AEC or a private provider, and statutory declarations. The FWC weighs the evidence and considers whether the method was robust enough to demonstrate that a majority of the proposed coverage group want to bargain.