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FAIR WORK ACT 2009 - SECT 211

When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

             (1)  If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

                     (a)  the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

                     (b)  the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note:          The FWC may approve a variation under this section with undertakings (see section 212).

Modification of approval requirements

             (2)  For the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), the FWC must:

                     (a)  take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and

                     (b)  comply with subsection (5); and

                     (c)  disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings).

             (3)  The following provisions:

                     (a)  section 180 (which deals with pre-approval steps);

                     (b)  subsection 186(2) (which deals with the FWC's approval of enterprise agreements);

                     (c)  section 188 (which deals with genuine agreement);

have effect as if:

                     (d)  references in sections 180 and 188 to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and

                     (e)  references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and

                      (f)  references in section 180 to subsection 181(1) were references to subsection 208(1); and

                     (g)  the words "if the agreement is not a greenfields agreement--" in paragraph 186(2)(a) were omitted; and

                     (h)  paragraph 186(2)(b) were omitted; and

                   (ha)  references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and

                   (hb)  subparagraph 188(a)(ii) were omitted; and

                      (j)  the words "182(1) or (2)" in paragraph 188(b) were omitted and the words "209(1) or (2)" were substituted.

             (4)  Section 193 (which deals with passing the better off overall test) has effect as if:

                     (a)  the words "that is not a greenfields agreement" in subsection (1) were omitted; and

                     (b)  subsection (3) were omitted; and

                     (c)  the words "the agreement" in subsection (6) were omitted and the words "the variation of the enterprise agreement" were substituted; and

                     (d)  the reference in subsection (6) to subsection 182(4) or section 185 were a reference to section 210.

             (5)  For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

Regulations may prescribe additional modifications

             (6)  The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part have effect with such modifications as are prescribed by the regulations.



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