Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

FWA must not, under this Part:

make a modern enterprise award; or

make a determination varying a modern award so that it becomes a modern enterprise award.

Modern enterprise awards can be made only in accordance with the enterprise instrument modernisation process provided for by Part 2 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

FWA may make a determination revoking a modern enterprise award only on application under section 158.

FWA must not make a determination revoking a modern enterprise award unless FWA is satisfied that:

the award is obsolete or no longer capable of operating; or

all the employees covered by the award will, when the revocation comes into operation, be covered by a different modern award (other than the miscellaneous modern award or a modern enterprise award) that is appropriate for them.

In deciding whether to make a determination revoking a modern enterprise award FWA must take into account the following:

the circumstances that led to the making of the modern enterprise award;

the content of the modern award referred to in paragraph (3)(b);

the terms and conditions of employment applying in the industry in which the persons covered by the modern enterprise award operate, and the extent to which those terms and conditions are reflected in the modern enterprise award;

the extent to which the modern enterprise award provides enterprise‑specific terms and conditions of employment;

the likely impact on the persons covered by the modern enterprise award, and the persons covered by the modern award referred to in paragraph (3)(b), of a decision to revoke, or not revoke, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;

the views of the persons covered by the modern enterprise award;

any other matter prescribed by the regulations.