Workplace determinations

The expectation is that in the overwhelming majority of cases bargaining will result in an enterprise agreement being submitted to the Fair Work Commission for approval.

However, if the bargaining representatives for a proposed enterprise agreement cannot agree, in special cases (after specific requirements are met) the Fair Work Act 2009 allows for a Full Bench of the Commission to determine terms and conditions of employment.[1]

If the Commission makes such a determination, it is called a workplace determination.

The Fair Work Act provides for 3 types of workplace determinations:

• low-paid workplace determinations
• industrial action related workplace determinations, and
• bargaining related workplace determinations.

See Fair Work Act ss.272–275

Workplace determinations are treated in a similar way to enterprise agreements. Accordingly, if a workplace determination (of any kind) is made, it must:

• include a nominal expiry date
• only include terms that would be about permitted matters if the determination were an enterprise agreement
• not include terms that would be unlawful terms if the determination were an enterprise agreement
• not include any designated outworker terms
• include terms such that the determination would, if it were an enterprise agreement, pass the better off overall test
• not include any terms that would, if the determination were an enterprise agreement, mean that the Commission could not approve the agreement
• include a term about settling disputes arising in relation to the NES or about any matter arising under the determination
• include the model flexibility term (unless the Commission is satisfied that an agreed term would be sufficient), and
• include the model consultation term (unless the Commission is satisfied that an agreed term would be sufficient).

In addition, workplace determinations must include applicable coverage and agreed terms and terms dealing with matters at issue between the parties.

When deciding the content of a workplace determination, the Commission must take the following factors into account:

• the merits of the case
• for a low-paid workplace determination – the interests of the employees and employers who will be covered by the determination, including ensuring that employers can remain competitive
• for other workplace determinations – the interests of the employees and employers who will be covered by the determination
• the public interest
• how productivity might be improved in the enterprise or enterprises concerned
• the extent to which the conduct of bargaining representatives was reasonable during bargaining
• the extent to which the bargaining representatives have complied with the good faith bargaining requirements, and
• incentives to continue to bargain at a later time.

A workplace determination that applies to an employee in relation to particular employment will cease to apply (and will never again apply to the employee in relation to that employment) if an enterprise agreement that covers the employee comes into operation in relation to the same employment.

This is the case even if the nominal expiry date of the workplace determination has not yet passed.