Serious breach declarations

See Fair Work Act 2009 ss.234–235

A bargaining representative for a proposed enterprise agreement may apply to the Fair Work Commission for a serious breach declaration in relation to the agreement.

Generally, a serious breach declaration is available where there are serious and sustained contraventions of a bargaining order that significantly undermine the bargaining process.

An application for a serious breach declaration must be accompanied by a copy of each of the bargaining orders in relation to the agreement which the applicant alleges have been contravened.[1]

The Commission may make a serious breach declaration in relation to a proposed enterprise agreement if an application for the declaration has been made and the Commission is satisfied that:

• one or more bargaining representatives for the agreement has contravened one or more bargaining orders in relation to the agreement
• the contravention or contraventions:
  • are serious and sustained, and
  • have significantly undermined bargaining for the agreement
• the other bargaining representatives for the agreement have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement
• agreement on the terms that should be included in the agreement will not be reached in the foreseeable future, and
• it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

In deciding whether or not all other reasonable alternatives to reach agreement have been exhausted, the Commission may take into account any matter the Commission considers relevant, including:

• whether the Commission has provided assistance by dealing with a bargaining dispute in relation to the agreement
• whether a bargaining representative has applied to a court for an order under the civil remedy provisions in relation to the contravention or contraventions of one or more bargaining orders, and
• any findings or orders made by the court in relation to such an application.

If made, a serious breach declaration must specify the proposed enterprise agreement to which the declaration relates.

A serious breach declaration comes into operation on the day on which it is made and ceases to operate when each employer specified in the declaration is covered by either an enterprise agreement or a workplace determination.

The consequence of a serious breach declaration being made in relation to an agreement is that the Commission may, in certain circumstances, make a bargaining related workplace determination in relation to the agreement.

Related information

• Workplace determinations
• Enforcement of Commission orders