Document ID: chunk:federal_register_of_legislation:C2022A00079:clause:1_638:p2
Version: federal_register_of_legislation:C2022A00079
Segment Type: clause
Provision Reference: sch 1 cl 638 (pt 2/3)
Character Range: 342910–345568

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