Commonwealth Consolidated Acts

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FAIR WORK ACT 2009 - SECT 235

When the FWC may make a serious breach declaration

Serious breach declaration

             (1)  The FWC may make a serious breach declaration in relation to a proposed enterprise agreement if:

                     (a)  an application for the declaration has been made; and

                     (b)  the FWC is satisfied of the matters set out in subsection (2).

Note:          See also section 255A (limitations relating to greenfields agreements).

Matters of which the FWC must be satisfied before making a serious breach declaration

             (2)  The FWC must be satisfied that:

                     (a)  one or more bargaining representatives for the agreement has contravened one or more bargaining orders in relation to the agreement; and

                     (b)  the contravention or contraventions:

                              (i)  are serious and sustained; and

                             (ii)  have significantly undermined bargaining for the agreement; and

                     (c)  the other bargaining representatives for the agreement (the designated bargaining representatives ) have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement; and

                     (d)  agreement on the terms that should be included in the agreement will not be reached in the foreseeable future; and

                     (e)  it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

Factors the FWC must take into account in deciding whether reasonable alternatives exhausted

             (3)  In deciding whether or not the designated bargaining representatives have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement, the FWC may take into account any matter the FWC considers relevant, including the following:

                     (a)  whether the FWC has provided assistance under section 240 in relation to the agreement;

                     (b)  whether a designated bargaining representative has applied to a court for an order under Part 4-1 in relation to the contravention or contraventions referred to in paragraph (2)(a) of this section; and

                     (c)  any findings or orders made by the court in relation to such an application.

What declaration must specify

             (4)  The declaration must specify:

                     (a)  the proposed enterprise agreement to which the declaration relates; and

                     (b)  any other matter prescribed by the procedural rules.

Operation of declaration

             (5)  The declaration:

                     (a)  comes into operation on the day on which it is made; and

                     (b)  ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.



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