216When variation comes into operation

216  When variation comes into operation   If a variation of an enterprise agreement is approved under section 211, the variation operates from the day specified in the decision to approve the variation. Subdivision AA—Variation of supported bargaining agreement to add employer and employees (with consent) 216A  Variation of supported bargaining agreement to add employer and employees  (1) A variation of a supported bargaining agreement, that has the effect that an employer that was not covered by the agreement will be covered by it, may be made jointly by the employer and the affected employees. Note: Once the employer is covered by the agreement, any of their employees who the agreement is expressed to cover will also be covered by it. See also the definition of affected employees in section 12.  (2) The employer may request the affected employees to approve the proposed variation by voting for it.  (3) Without limiting subsection (2), the employer may request that the affected employees vote by ballot or by an electronic method.  (4) The variation is made when a majority of the affected employees who cast a valid vote approve the variation.  (5) The variation has no effect unless it is approved by the FWC under section 216AB. 216AAA  Terms of variation must be explained to employees  (1) Before an employer requests under subsection 216A(2) that affected employees approve a proposed variation, the employer must take all reasonable steps to ensure that:  (a) the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees; and  (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.  (2) Without limiting paragraph (1)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph: 216AA  Application for the FWC’s approval of a variation of a supported bargaining agreement to add employer and employees  (1) If a variation of a supported bargaining agreement is made as mentioned in section 216A, the employer to be covered by the agreement must apply to the FWC for approval of the variation.  (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.  (4) The regulations may, for the purposes of this Subdivision, prescribe requirements relating to the signing of variations. 216AB  When the FWC must approve a variation of a supported bargaining agreement to add employer and employees  (1) If an application for the approval of a variation of a supported bargaining agreement is made under section 216AA, the FWC must approve the variation if the FWC is satisfied that:  (a) if the application that was made under section 242 for the supported bargaining authorisation in relation to the agreement had specified the affected employees and their employer, the FWC would have been required to make the authorisation in accordance with section 216AC; and  (b) the affected employees have voted on whether to approve the variation and, of those who cast a valid vote, a majority approved the variation; and  (c) the variation has been genuinely agreed to by the affected employees in accordance with section 216AD; unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.  (2) Despite subsection (1), the FWC must not approve the variation if, as a result of the variation, the agreement would cover employees in relation to general building and construction work.  (3) Despite subsection (1), the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a single interest employer authorisation in relation to any of the affected employees. 216AC  Determining whether the FWC would have been required to make a supported bargaining authorisation   For the purposes of paragraph 216AB(1)(a), the FWC is to determine whether it is satisfied that it would have been required to make the supported bargaining authorisation in accordance with sections 243 and 243A, modified as follows:  (a) as if paragraph 243(1)(a), subparagraph 243(1)(b)(iii) and paragraphs 243(1)(c) and (2A)(a) were omitted;  (b) as if references to the employers included the employer who made the application under section 216AA for approval of the variation;  (c) as if references to employees who will be covered by the agreement, or an employee, were references to the affected employees or an affected employee;  (d) as if all of the words in paragraph 243(2A)(b) were replaced with the words “the affected employees are, at the time the application for approval of the variation is being considered, employees in an industry, occupation or sector declared by the Minister under subsection (2B)”. 216AD  Determining whether a variation of a supported bargaining agreement to add employer and employees has been genuinely agreed to by affected employees  (1) For the purposes of paragraph 216AB(1)(c), the FWC is to determine whether it is satisfied that the variation has been genuinely agreed to by the affected employees in accordance with section 188, modified as follows:  (a) as if references (other than in a note) to an enterprise agreement being genuinely agreed to were references to the variation being genuinely agreed to;  (b) as if references to employees covered by or expressed to be covered by the agreement, employees requested to approve the agreement by voting for it, or employees, were references to the affected employees;  (c) as if, in paragraph 188(2)(a), the reference to the agreement were a reference to the agreement as proposed to be varied;  (e) as if, in subsections 188(4A) and (5), references to subsection 180(5) were references to section 216AAA;  (f) as if, in paragraph 188(5)(c), the reference to subsection 182(1) or (2) were a reference to subsection 216A(4).  (b) the matters mentioned in paragraphs 188B(3)(c) and (d) are taken to be matters relating to the agreement as proposed to be varied; and  (c) the matters mentioned in paragraphs 188B(3)(e) are taken to be matters relating to the variation.  (3) The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied that the variation has been genuinely agreed to, 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. 216AE  When the FWC may refuse to approve a variation of a supported bargaining agreement to add employer and employees  (1) If an application for the approval of a variation of a supported bargaining agreement is made under section 216AA, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:  (2) Subsection (1) has effect despite section 216AB (which deals with the approval of variations of supported bargaining agreements).  (3) If the FWC refuses to approve a variation of a supported bargaining agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate. 216AF  When variation comes into operation   If a variation of a supported bargaining agreement is approved under section 216AB, the variation operates from the day specified in the decision to approve the variation. Subdivision AB—Variation of supported bargaining agreement to add employer and employees (without consent) 216B  Application for the FWC to vary a supported bargaining agreement to add employer and employees Application for variation  (1) An employee organisation that is covered by a supported bargaining agreement may apply to the FWC for a variation of the agreement that has the effect that an employer that was not covered by the agreement will be covered by it. Note: Once the employer is covered by the agreement, any of their employees who the agreement is expressed to cover will also be covered by it. See also the definition of affected employees in section 12.  (a) a signed copy of the variation proposed by the employee organisation; and  (3) The regulations may, for the purposes of this Subdivision, prescribe requirements relating to the signing of variations. 216BA  When the FWC must make a variation of a supported bargaining agreement to add employer and employees  (1) If an application for the FWC to vary a supported bargaining agreement is made under section 216B, the FWC must make the variation if the FWC is satisfied that:  (a) a majority of the employees:  (i) who are employed by the employer at a time determined by the FWC; and  (ii) who will be covered by the agreement as proposed to be varied;   want to be covered by the agreement; and  (b) it is appropriate for the employees to be covered by the agreement.  (2) In determining whether it is satisfied that it is appropriate for the employees to be covered by the agreement:  (a) the FWC must take into account the views of:  (i) each employee organisation covered by the agreement; and  (ii) the employer that will be covered by the agreement if the variation is made; and  (b) the FWC may have regard to the matters referred to in section 243 (when the FWC must make a supported bargaining authorisation).  (3) Despite subsection (1), the FWC must not make the variation if:  (a) as a result of the variation, the agreement would cover employees in relation to general building and construction work; or  (b) the affected employees are covered by an enterprise agreement that has not passed its nominal expiry date.  (4) Despite subsection (1), the FWC must not make the variation if the employer that will be covered by the agreement is specified in a single interest employer authorisation in relation to any of the affected employees. 216BB  When the FWC may refuse to make a variation of a supported bargaining agreement to add employer and employees  (1) If an application for the variation of a supported bargaining agreement is made under section 216B, the FWC may refuse to make the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:  (2) Subsection (1) has effect despite section 216BA (which deals with making variations of supported bargaining agreements without consent).  (3) If the FWC refuses to make a variation of a supported bargaining agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate. 216BC  When variation comes into operation   If a variation of a supported bargaining agreement is made under section 216BA, the variation operates from the day specified in the decision to make the variation. Subdivision AC—Variation of cooperative workplace agreement to add employer and employees 216C  Variation of cooperative workplace agreement to add employer and employees  (1) A variation of a cooperative workplace agreement, that has the effect that an employer that was not covered by the agreement will be covered by it, may be made jointly by the employer and the affected employees. Note: Once the employer is covered by the agreement, any of their employees who the agreement is expressed to cover will also be covered by it. See also the definition of affected employees in section 12.  (2) The employer may request the affected employees to approve the proposed variation by voting for it.  (3) Without limiting subsection (3), the employer may request that the affected employees vote by ballot or by an electronic method.  (4) The variation is made when a majority of the affected employees who cast a valid vote approve the variation.  (5) The variation has no effect unless it is approved by the FWC under section 216CB. 216CAA  Terms of the variation must be explained to employees  (1) Before an employer requests under subsection 216C(2) that affected employees approve a proposed variation, the employer must take all reasonable steps to ensure that:  (a) the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees; and  (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.  (2) Without limiting paragraph (1)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph: 216CA  Application for the FWC’s approval of a variation of a cooperative workplace agreement to add employer and employees  (1) If a variation of a cooperative workplace agreement is made as mentioned in section 216C, the employer must apply to the FWC for approval of the variation.  (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.  (4) The regulations may, for the purposes of this Subdivision, prescribe requirements relating to the signing of variations. 216CB  When the FWC must approve a variation of a cooperative workplace agreement to add employer and employees  (1) If an application for the approval of a variation of a cooperative workplace agreement is made under section 216CA, the FWC must approve the variation if the FWC is satisfied that:  (a) the employers, and any employee organisations, covered by the agreement before the variation was made have had an opportunity to express to the FWC their views (if any) on the variation; and  (b) the affected employees have voted on whether to approve the variation and, of those who cast a valid vote, a majority approved the variation; and  (c) the variation has been genuinely agreed to by the affected employees in accordance with section 216CC; and  (d) it is not contrary to the public interest for the employer and the affected employees to be covered by the agreement.  (2) Despite subsection (1), the FWC must not approve the variation if:  (a) the agreement is a greenfields agreement that covers employees in relation to general building and construction work; or  (b) as a result of the variation, the agreement would cover employees in relation to general building and construction work.  (3) Despite subsection (1), the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to any of the affected employees. 216CC  Determining whether a variation of a cooperative workplace agreement to add employer and employees has been genuinely agreed to by affected employees  (1) For the purposes of paragraph 216CB(1)(c), the FWC is to determine whether it is satisfied that the variation has been genuinely agreed to by the affected employees in accordance with section 188, modified as follows:  (a) as if references (other than in a note) to an enterprise agreement being genuinely agreed to were references to the variation being genuinely agreed to;  (b) as if references to employees covered by or expressed to be covered by the agreement, employees requested to approve the agreement by voting for it, or employees, were references to the affected employees;  (c) as if, in paragraph 188(2)(a), the reference to the agreement were a reference to the agreement as proposed to be varied;  (e) as if, in subsections 188(4A) and (5), references to subsection 180(5) were references to section 216CAA;  (f) as if, in paragraph 188(5)(c), the reference to subsection 182(1) or (2) were a reference to subsection 216C(4).  (b) the matters mentioned in paragraphs 188B(3)(c) and (d) are taken to be matters relating to the agreement as proposed to be varied; and  (c) the matters mentioned in paragraph 188B(3)(e) are taken to be matters relating to the variation.  (3) The regulations may provide that, for the purposes of the FWC determining whether it is satisfied that the variation has been genuinely agreed to by the affected employees, 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. 216CD  When the FWC may refuse to approve a variation of a cooperative workplace agreement  (1) If an application for the approval of a variation of a cooperative workplace agreement is made under section 216CA, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:  (2) Subsection (1) has effect despite section 216CB (which deals with the approval of variations of cooperative workplace agreements).  (3) If the FWC refuses to approve a variation of a cooperative workplace agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate. 216CE  When variation comes into operation   If a variation of a cooperative workplace agreement is approved under section 216CB, the variation operates from the day specified in the decision to approve the variation. Subdivision AD—Variation of single interest employer agreement to add employer and employees 216D  Variation of single interest employer agreement to add employer and employees—joint variation  (1) The following may jointly make a variation of a single interest employer agreement that will have the effect that they will be covered by the agreement:  (a) an employer that is not covered by the agreement;  (b) the employees employed by the employer at the time who will be covered by the agreement if the variation is approved by the FWC (the affected employees).  (2) The variation has no effect unless it is approved by the FWC under section 216DC. Approval by employee vote  (3) The employer may request the affected employees to approve the proposed variation by voting for it.  (4) Without limiting subsection (3), the employer may request that the affected employees vote by ballot or by an electronic method. When a variation is made  (5) A variation under this section is made when a majority of the affected employees who cast a valid vote approve the variation. 216DAA  Terms of variation must be explained to employees  (1) Before an employer requests under subsection 216D(3) that affected employees approve a proposed variation, the employer must take all reasonable steps to ensure that:  (a) the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees; and  (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.  (2) Without limiting paragraph (1)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph: 216DA  Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—joint variation  (1) If a variation of a single interest employer agreement is made under section 216D, the employer to be covered by the agreement must apply to the FWC for approval of the variation.  (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.  (4) The regulations may prescribe requirements relating to the signing of variations of single interest employer agreements made under section 216D. 216DB  Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—application by employee organisation  (1) An employee organisation that is covered by a single interest employer agreement may apply to the FWC for the approval of a variation of the agreement that will have the effect that the following will be covered by the agreement:  (a) an employer that is not covered by the agreement;  (b) the employees employed by the employer at the time who will be covered by the agreement if the variation is approved by the FWC (the affected employees).  (a) a signed copy of the variation for which approval is sought; and  (3) The regulations may prescribe requirements relating to the signing of variations of single interest employer agreements for which approval is sought under this section. 216DC  When the FWC must approve a variation of a single interest employer agreement to add employer and employees Approval of variation by the FWC  (1) The FWC must approve a variation of a single interest employer agreement if:  (a) an application for approval of the variation has been made under section 216DA or 216DB; and  (i) the employers and any employee organisations covered by the agreement have had an opportunity to express to the FWC their views (if any) on the application; and  (ii) if the application was made by an employer under section 216DA—the variation has been genuinely agreed to by the affected employees in accordance with section 216DD; and  (iii) if the application was made by an employee organisation under section 216DB—the requirements of subsection (1A) are met; and  (iv) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and  (v) if the requirements of subsection (3) are met—the operations and business activities of the employer are reasonably comparable with those of the other employers who are covered by the agreement.  (1AA) If:  (a) the application for approval of the variation was made by an employee organisation under section 216DB; and  (b) the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made; it is presumed for the purposes of subparagraph (1)(b)(v) that the operations and business activities of the employer are reasonably comparable with those of the other employers that are covered by the agreement, unless the contrary is proved. Additional requirements for application by employee organisation  (1A) The requirements of this subsection are met if:  (a) the employer that will be covered by the agreement employed at least 20 employees at the time that the application for approval of the variation was made; and  (b) a majority of the affected employees want to be covered by the agreement; and  (c) subsection (1C) does not apply to the employer.  (1B) For the purposes of paragraph (1A)(b), the FWC may work out whether a majority of the affected employees want to be covered by the agreement using any method the FWC considers appropriate.  (1C) This subsection applies to an employer if:  (a) the employer and the affected employees are covered by another enterprise agreement that has not passed its nominal expiry date at the time that the FWC will approve the variation; or  (b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the affected employees have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and the affected employees or substantially the same group of the affected employees. Franchisees  (2) The requirements of this subsection are met if the employers covered by the agreement and the employer that will be covered by the agreement carry on similar business activities under the same franchise and are:  (a) franchisees of the same franchisor; or  (b) related bodies corporate of the same franchisor; or  (c) any combination of the above. Common interest employers  (3) The requirements of this subsection are met if it is appropriate to approve the variation, having regard to:  (a) whether the employers covered by the agreement and the employer that will be covered by the agreement have clearly identifiable common interests; and  (b) whether it would be contrary to the public interest to approve the variation.  (3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:  (a) geographical location;  (b) regulatory regime;  (c) the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.  (3AB) If:  (a) the application for approval of the variation was made by an employee organisation under section 216DB; and  (b) the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made; it is presumed that the requirements of subsection (3) are met, unless the contrary is proved. Calculating number of employees  (3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1A)(a) or (3AB)(b):  (b) subject to paragraph (c), all employees employed by the employer at the time that the application was made are to be counted; and  (c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and  (d) associated entities of the employer are taken to be one entity. Employers and employees that are already bargaining  (3B) Despite subsection (1), the FWC may refuse to approve the variation if the FWC is satisfied that:  (a) the employer is bargaining in good faith for a proposed enterprise agreement that will cover the employer and the affected employees, or substantially the same group of the affected employees; and  (b) the employer and the affected employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employer and the affected employees, or substantially the same group of the affected employees; and  (c) on the day that the FWC will approve the variation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b). General building and construction work  (4) Despite subsection (1), the FWC must not approve the variation if:  (a) the agreement is a greenfields agreement that covers employees in relation to general building and construction work; or  (b) as a result of the variation, the agreement would cover employees in relation to general building and construction work. Supported bargaining authorisation  (5) Despite subsection (1), the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation in relation to any of the affected employees. 216DD  Determining whether a variation of a single interest employer agreement to add employer and employees has been genuinely agreed to by affected employees  (1) For the purposes of subparagraph 216DC(1)(b)(ii), the FWC is to determine whether it is satisfied that the variation has been genuinely agreed to by the affected employees in accordance with section 188, modified as follows:  (a) as if references (other than in a note) to an enterprise agreement being genuinely agreed to were references to the variation being genuinely agreed to;  (b) as if references to employees covered by or expressed to be covered by the agreement, employees requested to approve the agreement by voting for it, or employees, were references to the affected employees;  (c) as if, in paragraph 188(2)(a), the reference to the agreement were a reference to the agreement as proposed to be varied;  (e) as if, in subsections 188(4A) and (5), references to subsection 180(5) were references to section 216DAA;  (f) as if, in paragraph 188(5)(c), the reference to subsection 182(1) or (2) were a reference to subsection 216D(5).  (b) the matters mentioned in paragraphs 188B(3)(c) and (d) are taken to be matters relating to the agreement as proposed to be varied; and  (c) the matters mentioned in paragraphs 188B(3)(e) are taken to be matters relating to the variation.  (3) The regulations may provide that, for the purposes of the FWC determining whether it is satisfied that the variation has been genuinely agreed to by the affected employees for the purposes of subparagraph 216DC(1)(b)(ii), 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. 216DE  When the FWC may refuse to approve a variation of a single interest employer agreement  (1) If an application for the approval of a variation of a single interest employer agreement is made under section 216DA or 216DB, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:  (2) Subsection (1) has effect despite section 216DC (which deals with the approval of variations of single interest employer agreements).  (3) If the FWC refuses to approve a variation of a single interest employer agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate. 216DF  When variation comes into operation   If a variation of a single interest employer agreement is approved under section 216DC, the variation operates from the day specified in the decision to approve the variation. Subdivision AE—Variation of multi‑enterprise agreement to remove employer and employees 216E  Variation of multi‑enterprise agreement to remove employer and employees with consent  (1) The following may jointly make a variation of a multi‑enterprise agreement covered by subsection (2), that will have the effect that they will cease to be covered by the agreement:  (a) an employer that is covered by the agreement;  (b) the employees employed at the time who will cease to be covered by the agreement if the variation is approved by the FWC (the affected employees).  (2) This subsection covers a multi‑enterprise agreement made after the commencement of this subsection if the agreement is not a greenfields agreement and there are 2 or more employers covered by the agreement.  (3) The variation has no effect unless it is approved by the FWC under section 216EB. Approval by employee vote  (4) The employer may request the affected employees to approve the proposed variation by voting for it.  (5) Before making the request, the employer must:  (a) take all reasonable steps to notify the employees of the following:  (i) the time and place at which the vote will occur;  (ii) the voting method that will be used; and  (b) give the employees a reasonable opportunity to decide whether they want to approve the proposed variation.  (6) Without limiting subsection (4), the employer may request that the affected employees vote by ballot or by an electronic method. When a variation is made  (7) The variation is made when a majority of the affected employees who cast a valid vote approve the variation. 216EA  Application for the FWC’s approval of variation  (1) If a variation of a multi‑enterprise agreement is made as mentioned in section 216E, one of the following must apply to the FWC for approval of the variation:  (a) the employer mentioned in paragraph 216E(1)(a);  (b) an affected employee;  (c) an employee organisation covered by the agreement that is entitled to represent the industrial interests of an affected employee.  (2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.  (b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.  (4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements. 216EB  When the FWC must approve variation of multi‑enterprise agreement to remove employer and employees   If an application for the approval of a variation of a multi‑enterprise agreement is made under section 216EA, the FWC must approve the variation if the FWC is satisfied that:  (a) the employer mentioned in paragraph 216E(1)(a) complied with subsection 216E(5) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the variation; and  (b) the affected employees have voted, by ballot or by an electronic method, on whether to approve the variation and, of those who cast a valid vote, a majority approved the variation; and  (c) there are no other reasonable grounds for believing that a majority of the affected employees who cast a valid vote did not approve the variation; and  (d) each employee organisation covered by the agreement, that is entitled to represent the industrial interests of one or more affected employees, agrees to the variation. 216EC  When variation comes into operation   If a variation of a multi‑enterprise agreement is approved under section 216EB, the variation operates from the day specified in the decision to approve the variation. 216ED  Effect of variation   A multi‑enterprise agreement that is varied under this Subdivision remains a multi‑enterprise agreement, despite the variation. Subdivision B—Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination