Fair Work Act 2009

If the condition in subsection (2) is satisfied, any of the following may apply to the FWC for a reconsideration of whether an enterprise agreement passes the better off overall test:

one or more of the employers covered by the agreement;

an employee covered by the agreement;

an employee organisation covered by the agreement.

The condition in this subsection is satisfied if:

before approving the agreement the FWC had regard, under subsection 193A(6), to patterns or kinds of work, or types of employment engaged in, or to be engaged in, by:

the award covered employees for the agreement; and

if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees; and

at the test time or a later time, one or more employees covered by subsection (4) or (5) engaged in other patterns or kinds of work, or other types of employment, to which the FWC did not have regard under subsection 193A(6).

Before approving the agreement the FWC had regard, under subsection 193A(6), to work on Saturdays and Sundays as a pattern of work for a class of employees. At the test time some employees covered by subsection (4) worked only on Sundays, and the FWC did not have regard, under subsection 193A(6), to this pattern of work. In these circumstances, the condition in this subsection is satisfied.

An employee is covered by this subsection if, on the assumption that the test time mentioned in paragraph 193(4)(b) were the time the application is made under subsection (1) of this section, the employee would be an award covered employee for the agreement.

An employee is covered by this subsection if, on the assumption that the test time mentioned in section 193 were the time the application is made under subsection (1) of this section, the employee would be an employee referred to in subparagraph (2)(a)(ii).