What is a workplace determination?
A workplace determination is an instrument the Fair Work Commission can make to set binding terms when enterprise bargaining cannot be resolved.
A workplace determination is a binding instrument made by the Fair Work Commission that sets out the terms and conditions of employment when parties cannot reach an enterprise agreement through bargaining. It operates much like an enterprise agreement once made.
There are several types under the Fair Work Act 2009: an industrial action related workplace determination (made after a bargaining-related workplace order ends protected industrial action), a bargaining related workplace determination (made when bargaining is intractable or following serious breaches), and a low-paid workplace determination. Since the 2023 reforms, the Commission can also make an intractable bargaining workplace determination where bargaining has reached an impasse.
Key facts
- •Made by the Fair Work Commission to settle terms when bargaining fails
- •Operates like an enterprise agreement once it is in force
- •Types include industrial action related, bargaining related, and low-paid determinations
- •Since the 2023 reforms, an intractable bargaining workplace determination can be made when bargaining stalls
- •Must still meet the better off overall test and cannot undercut the National Employment Standards
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When does the Fair Work Commission make a workplace determination?
Generally when enterprise bargaining cannot be resolved — for example after prolonged or intractable bargaining, following serious breaches of bargaining orders, or after industrial action has been terminated or suspended on certain grounds.
Is a workplace determination the same as an enterprise agreement?
Not exactly. An enterprise agreement is voted on and approved, while a workplace determination is imposed by the Fair Work Commission. Once made, though, it covers employees and sets binding terms much like an enterprise agreement.
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