The role of the ‘genuinely try to reach agreement’ requirement in the protected industrial action regime under the 'Fair Work Act 2009'

Abstract

The requirement genuinely to try to reach an agreement (GTRA) is one of a number of criteria that employees must satisfy before they can take protected industrial action in the course of enterprise negotiations under the Fair Work Act 2009 (Cth). It is tested before the Fair Work Commission (FWC) in the process of making a Protected Industrial Action Ballot Order (PABO), and such an order cannot be made unless the FWC is satisfied that the requirement has been complied with. While there is a well-developed jurisprudence on the meaning of GTRA, there have been no attempts to study how the requirement operates in practice. To address this gap in the literature, this article draws on a qualitative and quantitative analysis of PABO applications, and interviews with stakeholders including unions, employers and members of the Fair Work Commission. The analysis of this data demonstrates that the success rate of PABO applications is very high, with few PABO applications being contested by employers and even fewer being rejected by the FWC on the basis that the application has failed to meet the GTRA requirement. However, while few PABO applications are denied on this ground, the empirical findings also suggest that the GTRA requirement plays a signalling role in the enterprise bargaining regime, helping to establish accepted norms of conduct by trade union bargaining representatives seeking to take protected industrial action.