Commonwealth Consolidated Acts Commonwealth Consolidated ActsVariation to remove employer
(1) The following may apply to the FWC for a variation of a single interest employer authorisation to remove an employer's name from the authorisation:
(a) the employer;
(b) a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates.
(2) The FWC must vary the authorisation to remove the employer's name if:
(a) an application has been made under subsection (1); and
(b) the requirements of either subsection (2A) or (2B) are met.
(2A) The requirements of this subsection are met if the FWC is satisfied that:
(a) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and
(b) because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation.
(2B) The requirements of this subsection are met if:
(a) the application was made by a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates; and
(b) the FWC is satisfied that:
(i) the employer (the relevant employer ) whose name is proposed to be removed employed fewer than 50 employees at the time that the application was made; and
(ii) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the application; and
(iii) the employees (the relevant employees ) who are employed by the relevant employer and that would be covered by the proposed enterprise agreement to which the authorisation relates have, on request by the bargaining representative, approved the removal of the relevant employer's name by voting for the removal; and
(iv) there are no reasonable grounds for believing that the removal of the relevant employer's name has not been genuinely approved by the relevant employees.
Note: A person must not coerce another person to exercise a workplace right in a particular way (see section 343).
(2C) Without limiting subparagraph (2B)(b)(iii), the bargaining representative may request that the relevant employees vote by ballot or by an electronic method.
(2D) For the purposes of subparagraph (2B)(b)(iii), the relevant employees are taken to have approved the removal of the employer's name if:
(a) at least 50% of the relevant employees cast a vote; and
(b) more than 50% of the valid votes were votes approving the removal.
Variation to add employer
(3) The following may apply to the FWC for a variation of a single interest employer authorisation to add the name of an employer (the new employer ) that is not specified in the authorisation to the authorisation:
(a) the new employer;
(b) a person who is a bargaining representative:
(i) for the proposed enterprise agreement to which the authorisation relates; and
(ii) of an employee of the new employer.
(4) The FWC must vary the authorisation to add the new employer's name if:
(a) an application for the variation has been made; and
(b) the FWC is satisfied that:
(i) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and
(ii) if the application was made by the new employer under paragraph (3)(a)--no person coerced, or threatened to coerce, the new employer to make the application; and
(iii) if the application was made by a bargaining representative under paragraph (3)(b)--the requirements of subsection (5) are met; and
(iv) the requirements of subsection 249(2) or (3) (which deal with franchisees and common interest employers) would continue to be met if the new employer's name were added; and
(v) if the requirements of subsection 249(3) would continue to be met if the new employer's name were added--the operations and business activities of the new employer are reasonably comparable with those of the employers specified in the authorisation.
(4A) If:
(a) the application for approval of the variation was made by a bargaining representative under paragraph (3)(b) of this section; and
(b) the new employer employed 50 employees or more at the time that the application was made; and
(c) the requirements of subsection 249(2) do not apply to the new employer;
then the following matters are presumed, unless the contrary is proved:
(d) that the requirements of subsection 249(3) would continue to be met if the new employer's name were added;
(e) that, for the purposes of subparagraph (4)(b)(v) of this section, the operations and business activities of the new employer are reasonably comparable with those of the other employers that are specified in the authorisation.
Additional requirements for application by bargaining representative
(5) The requirements of this subsection are met if:
(a) the new employer employed at least 20 employees at the time that the application for the variation was made; and
(b) the new employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and
(c) the new employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and
(d) a majority of the employees who are employed by the new employer at a time determined by the FWC and who will be covered by the proposed enterprise agreement want to bargain for the agreement; and
(e) subsection (7) does not apply to the employer.
(5A) For the purposes of calculating the number of employees referred to in subparagraph (2B)(b)(i) or paragraph (4A)(b) or (5)(a):
(a) employee has its ordinary meaning; and
(b) subject to paragraph (c), all employees employed by the new employer at the time that the application for the variation 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 new employer; and
(d) associated entities of the new employer are taken to be one entity.
(6) For the purposes of paragraph (5)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(7) This subsection applies to an employer if:
(a) the new employer and the employees of the new employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the variation; or
(b) the new employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the new employer that will be covered by the agreement have agreed in writing to bargain for a proposed single - enterprise agreement that would cover the new employer and those employees or substantially the same group of those employees.
Employers and employees that are already bargaining
(8) Despite subsection (4), the FWC may refuse to vary the authorisation if the FWC is satisfied that:
(a) the new employer is bargaining in good faith for a proposed enterprise agreement that will cover the new employer and the employees of the new employer that will be covered by the agreement, or substantially the same group of those employees; and
(b) the new employer and those employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the new employer and those employees, or substantially the same group of those employees; and
(c) on the day that the FWC will vary the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).