Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:13_18
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 13 cl 18
Character Range: 453880–456377

18  FWC may take into account conduct engaged in by bargaining representatives while bargaining for collective agreement
(1) This item applies if:
 (a) before the WR Act repeal day, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective agreement; and
 (b) immediately before that day, the collective agreement had not been made; and
 (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective agreement, had it been made; and
 (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective agreement, had it come into operation.
(1A) This item applies if:
 (a) before the Division 2B referral commencement, a bargaining representative for a proposed enterprise agreement engaged in conduct in relation to a proposed collective State employment agreement; and
 (b) immediately before that day, the collective State employment agreement had not been made, or had been made but had not been lodged (however described) under a State industrial law of a Division 2B referring State; and
 (c) the employment of the employees who would be covered by the proposed enterprise agreement would have been subject to the proposed collective State employment agreement, had it come into operation; and
 (d) the employers who would be covered by the proposed enterprise agreement would have been bound by the proposed collective State employment agreement, had it come into operation.
(2) If this item applies because of subitem (1) or (1A), the FWC may take into account the conduct referred to in that subitem:
 (a) in deciding whether it is reasonable in all the circumstances to make a bargaining order or a scope order in relation to the proposed enterprise agreement; and
 (b) in deciding which terms to include in a workplace determination that relates to the proposed enterprise agreement; and
 (c) in deciding under Part 3‑3 of the FW Act (which deals with industrial action) whether a bargaining representative is genuinely trying to reach an agreement in relation to the proposed enterprise agreement; and
 (d) in deciding under subsection 423(2) or (3) of that Act whether protected industrial action that relates to the proposed enterprise agreement is causing, or threatening to cause, significant economic harm to a person.

Part 6—Payments relating to periods of industrial action