Good-faith bargaining for an enterprise agreement — what are the rules of engagement?

By Harriet Eager

Minter Ellison has previously provided you with guidance about the tips, tricks and pitfalls associated with the procedural requirements of enterprise agreement making.

Against this background, as a number of institutions in the higher-education sector are currently negotiating their next enterprise agreement, this article provides some guidance about the obligation to bargain in good faith under the Fair Work Act 2009 (Cth) (FW Act).

Throughout enterprise agreement negotiations, bargaining representatives (which includes employers, unions with members who will be covered by the enterprise agreement and other nominated individuals) must comply with the good-faith bargaining obligations in the FW Act. These obligations basically establish the ‘rules of engagement’ during negotiations and, if breached, can result in good-faith bargaining orders from the Fair Work Commission (FWC). If these orders are not complied with, they can result in the FWC arbitrating any outstanding matters…

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