Enterprise bargaining is designed to encourage employers and employees to reach agreement through negotiation. But what happens when bargaining stalls and neither side is willing to move? When enterprise bargaining reaches a genuine deadlock, the Fair Work Act 2009 (Cth) provides an "intractable bargaining" mechanism that allows the Fair Work Commission to step in and ultimately impose a binding workplace determination.
Introduced in 2022 and expanded through the more recent Closing Loopholes reforms, the intractable bargaining regime was intended to help parties resolve bargaining disputes that had genuinely reached an impasse.
However, a recent review conducted by former Commission Member Susan Booth (the Booth Review) of the Closing Loopholes legislative reforms has identified that some aspects of the regime may be producing unintended consequences in practice.
Before considering these emerging issues, here is a quick recap on how the intractable bargaining regime operates. It is a three-step process, each with their own legal and strategic considerations:
A bargaining representative may apply to the Commission to deal with a dispute about making the agreement, if the bargaining representatives cannot resolve the dispute between them.
The Fair Work Act does not limit the kinds of matters that can be in dispute. Really, they can be anything in relation to the...
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