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ARTICLE · 20 DECEMBER 2015

Unions now need an MSD to kick-start bargaining

Corrs Chambers Westgarth
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This recent FWA change means that a union must go through the MSD process in order to compel an employer to bargain.

AustraliaEmployment and HR
Nicholas Ellery
Nicholas Ellery
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A DISRUPTIVE NEW LAW

The Fair Work Amendment Act 2015 (Cth) (FW Amendment Act) came into effect on 27 November 2015.1

One important consequence is that a union is no longer able to apply for a protected action ballot order (PABO) to pressure an employer into bargaining before the 'notification time' starts.2

To engineer this, unions will likely need to apply to the Fair Work Commission (FWC) for a majority support determination (MSD). Once made, an MSD starts the notification time.3 An application for a PABO could then be made after that.

An MSD requires evidence that:

  • a majority of employees who will be covered by an agreement want to bargain; and
  • the employer has refused to bargain; and

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