Section 412 — Fair Work Act 2009: Pattern bargaining

Pattern bargaining (1) A course of conduct by a person is pattern bargaining if: (a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and (b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and (c) the course of conduct relates to 2 or more employers. Exception—genuinely trying to reach an agreement (2) The course of conduct, to the extent that it relates to a particular employer, is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer. (3) For the purposes of subsection (2), the factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include the following: (a) whether the bargaining representative is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the agreement; (b) whether the bargaining representative is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees; (c) whether the bargaining representative is meeting the good faith bargaining requirements. (4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies. Genuinely trying to reach an agreement (5) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.