Changes to bargaining declarations and determinations: intractable bargaining

The Secure Jobs Better Pay Act changed the way we deal with bargaining disputes. From 6 June 2023 serious breach declarations and bargaining related workplace determinations  were replaced by intractable bargaining declarations and intractable bargaining workplace determinations. Further changes were introduced from 27 February 2024 by the Closing Loopholes No. 2 Act.

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 the Commission (section 240)
• want further assistance to resolve the dispute.

If the Commission makes an intractable bargaining declaration and bargaining representatives still can’t resolve the dispute, the Commission must make an intractable bargaining workplace determination. This determination establishes the terms and conditions of employment in place of an enterprise agreement. 

Who can apply for an intractable bargaining declaration

You can apply for an intractable bargaining declaration if you are a bargaining representative for one of the following proposed single or multi-enterprise agreements (excluding greenfields agreements):

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

Making an intractable bargaining declaration

The Commission may make an intractable bargaining declaration if:
1.    It is after the end of the minimum bargaining period, and
2.    The Commission is satisfied that:  

• it has 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 the Commission does 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.

Minimum bargaining period

The minimum bargaining period is 9 months.

If enterprise agreements currently apply — If one or more 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 nominal expiry date of the existing agreement(s), or
• the day that bargaining starts, 

whichever is later.

The day that bargaining starts — This is the date of the notification time for the proposed agreement, unless there is a supported bargaining authorisation or single interest employer authorisation in place.

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.

Post-declaration negotiating periods

The Commission can specify a post-declaration negotiation period in an intractable bargaining declaration. This allows the Commission to continue to assist parties to resolve the dispute, including by:

• conducting conciliation conferences, and 
• providing other assistance to the parties.

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

The period can be extended by the Commission if it considers it appropriate to do so, taking into account any views of the bargaining representatives.

Making an intractable bargaining workplace determination

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

A determination can only be made by a Full Bench. 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, the Commission must take into account:

• 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 at a later time.

Terms of an intractable bargaining workplace determination

When making an intractable bargaining workplace determination, the Commission is deciding the terms and conditions of employment that could not be agreed on by the bargaining representatives. The determination will replace what would have been an enterprise agreement between the parties, and as such it must include certain terms that would be approved by the Commission if it were an enterprise agreement.

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

The terms of a determination must be capable of being approved by the Commission if they were included in a proposed enterprise agreement. This includes only making terms that collectively would meet the better off overall test (BOOT).

The determination must include terms that the Commission considers deal with matters that were still at issue after the post-declaration negotiating period has ended (if there was one), or otherwise after the intractable bargaining declaration was made. 

If immediately before an intractable bargaining workplace determination is made, an enterprise agreement applies to any employees who will be covered by the determination, any term the Commission includes in the determination to deal with a matter still at issue must not be less favourable to those employees, and to any employee organisation that was a bargaining representative of any of those employees, than a corresponding term of the enterprise agreement. This does not apply to a term that provides for a wage increase. 

Agreed terms

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

They can be terms that were agreed on:

• at the time the application for the intractable bargaining declaration was made 
• at the time the intractable bargaining declaration was made, and 
• at the end of the post-declaration negotiating period (if one is provided). 

Core or mandatory terms

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 each employee organisation or union that was a bargaining representative
• Dispute settlement — For any matters arising under the determination or relating to the NES unless the Commission is satisfied that other terms would meet dispute settlement term requirements 
• Consultation — The model consultation term unless the Commission is satisfied that other terms would meet consultation term requirements 
• Flexibility — The model flexibility term unless the Commission is 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.

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