Fair Work Act 2009

If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

The FWC may approve a variation under this section with undertakings (see section 212).

Despite subsection (1), the FWC must not approve the variation if:

as a result of the variation, employees who were not covered by the agreement will be covered by it; and

the employees’ employer is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to those employees.

For the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), the FWC must:

take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and

if the agreement is a multi‑enterprise agreement—take into account subsection (3A); and

comply with subsection (5); and

disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings); and

disregard sections 191A and 191B (which deal with FWC amendment of enterprise agreements).

The following provisions:

section 180 (which deals with pre‑approval steps);

subsection 186(2) (which deals with the FWC’s approval of enterprise agreements);

section 188 (which deals with genuine agreement);

references in sections 180 and 188 (other than paragraph 188(2)(b)) to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and

references in section 180, subsection 186(2) and section 188 to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and

references in section 180 to subsection 181(1) were references to subsection 208(1); and

subsections 180(4A) to (4C) were omitted; and

the word “bargaining” in paragraph 180(6)(c) were omitted; and

the words “if the agreement is not a greenfields agreement—” in paragraph 186(2)(a) were omitted; and

references in paragraph 186(2)(a) to the agreement were references to the variation of the agreement; and

paragraph 186(2)(b) were omitted; and

references in paragraphs 186(2)(c) and (d) and 188(2)(b) to the agreement were references to the enterprise agreement as proposed to be varied; and

references in section 188 to section 180A were references to section 207A; and

the words “182(1) or (2)” in paragraph 188(5)(c) were omitted and the words “209(1) or (2)” were substituted.

Subsection 186(2B) has effect as if the requirement in that subsection that the agreement must not cover employees in relation to general building and construction work were a requirement that the agreement as proposed to be varied must not cover employees in relation to such work.

Section 193 (which deals with passing the better off overall test) has effect as if:

the words “that is not a greenfields agreement” in subsection (1) were omitted; and

subsection (3) were omitted; and

the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and

the reference in subsection (6) to subsection 182(4) or section 185 were a reference to section 210.

Section 193A (which also deals with passing the better off overall test) has effect as if:

the words “if the agreement is not a greenfields agreement—” in paragraph (3)(b) were omitted; and

the words “in any case—a bargaining representative for the agreement” in paragraph (3)(c) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted; and

the words “the bargaining representative or bargaining representatives of” in paragraph (4)(a) were omitted; and

the words “the bargaining representative or bargaining representatives of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation)” in paragraph (4)(b) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted; and

paragraph (4)(c) were omitted; and

subsection (5) were omitted; and

the words “if the agreement is not a greenfields agreement—” in paragraph (6A)(b) were omitted; and

the words “in any case—a bargaining representative for the agreement” in paragraph (6A)(c) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted.

For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part, or regulations made for the purposes of this Part, have effect with such modifications as are prescribed by the regulations.