The expression 'genuinely trying' is concerned with the genuineness or authenticity of the efforts by the applicant to reach the stated goal of an enterprise agreement that meets the requirements of the Act, and is not bargaining for some ulterior purpose.

The expression 'genuinely trying' is concerned with the genuineness or authenticity of the trying; that is, the efforts by the applicant to reach the stated goal, being an enterprise agreement that meets the requirements of the Act.

Where an applicant calls acceptable evidence that their intention is to reach an enterprise agreement, a finding that they were not genuinely trying may require accepting evidence of some other extraneous purpose.

The expression 'genuinely trying' is concerned with the genuineness or authenticity of the trying; that is, the efforts by the applicant to reach the stated goal.

The expression 'genuinely trying' is concerned with the genuineness or authenticity of the efforts by the applicant to reach the stated goal of an enterprise agreement.

The expression 'genuinely trying' in s443(1)(b) is concerned with the genuineness of the efforts to reach an enterprise agreement, directed at the authenticity of the applicant's efforts. The genuineness will turn on its motivation – the intention, object or purpose.

If a party to bargaining has an extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the Fair Work Act, it is difficult to conceive that that party is genuinely trying to reach agreement. While concepts of genuinely trying to reach agreement and bargaining in good faith are different, it is difficult to reconcile that a party not meeting the mandatory requirements to bargain in good faith is also genuinely trying to reach agreement.

While there is a relationship between good faith bargaining requirements in s.228 and the concept of genuinely trying to reach agreement, these terms should not be conflated. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.

The concept of genuinely trying to reach agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate alternative tests or criteria; the statutory test in s.443 must be applied having regard to all relevant facts and circumstances of the particular case.

It is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All relevant circumstances must be assessed to establish whether the applicant has met the test, which will frequently involve considering the extent of progress in negotiations and the steps taken to reach agreement.

While there is a relationship between the good faith bargaining requirements in s.228 and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.

It is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement.