Document ID: chunk:federal_register_of_legislation:C2025C00150:section:216dc:p2
Version: federal_register_of_legislation:C2025C00150
Segment Type: section
Provision Reference: s 216DC (pt 2/3)
Character Range: 640958–643763

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):
 (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