Approval of variation by FWA
(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, FWA must approve the variation if:
(a) FWA is satisfied that had an application been made under section 185 for the approval of the agreement as proposed to be varied, FWA would have been required to approve the agreement under section 186; and
(b) FWA 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 FWA approved the agreement;
unless FWA is satisfied that there are serious public interest grounds for not approving the variation.
Note: FWA may approve a variation under this section with undertakings (see section 212).
Modification of approval requirements
(2) For the purposes of FWA deciding whether it is satisfied of the matter referred to in paragraph (1)(a), FWA 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 FWA 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 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, FWA 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 FWA 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.