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
(b) the FWC is satisfied that:
(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.
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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):
(a) employee has its ordinary meaning; and
(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;
(d) as if subsections 188(2A), (3) and (4) were omitted;
(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).
(2) In taking into account the statement of principles made under section 188B:
(a) the FWC may disregard the matters mentioned in paragraphs 188B(3)(a) and (b); and
(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.