Fair Work Act 2009

If an application is made under subsection 227A(1), the FWC must reconsider whether the agreement passes the better off overall test under section 193.

For the purposes of the reconsideration, sections 193 and 193A have effect as if:

the conditions in paragraphs 193(4)(a) and (b) were satisfied in relation to an employee covered by subsection 227A(4); and

in the case of an agreement of a kind covered by paragraph 193(1)(b)—the condition that a supported bargaining agreement or a single interest employer agreement applies to the employees is satisfied in relation to an employee covered by subsection 227A(5); and

the words “the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185” in subsection 193(6) were omitted and the words “the time mentioned in subsection 227B(2A)” were substituted; and

the words “if the agreement is not a greenfields agreement—” in paragraph 193A(3)(b) were omitted; and

the words “in any case—a bargaining representative for the agreement” in paragraph 193A(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 193A(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 193A(4)(b) were omitted and the words “the employee organisation or employee organisations that are covered by the agreement” were substituted; and

paragraph 193A(4)(c) were omitted; and

the words “if the agreement is not a greenfields agreement—” in paragraph 193A(6A)(b) were omitted; and

the words “in any case—a bargaining representative for the agreement” in paragraph 193A(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 paragraph (2)(b), the time is:

unless paragraph (b) applies—the time the application for approval of the agreement by the FWC was made under section 185; or

if the FWC has approved one or more variations of the agreement under section 211—the time the application for approval of the most recent of those variations by the FWC was made under section 210.

If the FWC has a concern that the enterprise agreement does not pass the better off overall test, the FWC may:

accept an undertaking from one or more employers covered by the agreement if the FWC is satisfied the undertaking addresses the concern; or

amend the agreement if the FWC is satisfied the amendment is necessary to address the concern.

An amendment under paragraph (3)(b) operates from:

7 days after the FWC makes the amendment; or

if another day is specified in the amendment (which may be a day before the amendment is made)—that other day.

The FWC must specify a day before the amendment is made for the purposes of paragraph (4)(b) if the FWC considers that it is necessary for the amendment to operate from the earlier day to address the concern to which the amendment relates.