Section 216BA — Fair Work Act 2009: When the FWC must make a variation of a supported bargaining agreement to add employer and employees

(1) If an application for the FWC to vary a supported bargaining agreement is made under section 216B, the FWC must make the variation if the FWC is satisfied that: (a) a majority of the employees: (i) who are employed by the employer at a time determined by the FWC; and (ii) who will be covered by the agreement as proposed to be varied; want to be covered by the agreement; and (b) it is appropriate for the employees to be covered by the agreement. (2) In determining whether it is satisfied that it is appropriate for the employees to be covered by the agreement: (a) the FWC must take into account the views of: (i) each employee organisation covered by the agreement; and (ii) the employer that will be covered by the agreement if the variation is made; and (b) the FWC may have regard to the matters referred to in section 243 (when the FWC must make a supported bargaining authorisation). (3) Despite subsection (1), the FWC must not make the variation if: (a) as a result of the variation, the agreement would cover employees in relation to general building and construction work; or (b) the affected employees are covered by an enterprise agreement that has not passed its nominal expiry date. (4) Despite subsection (1), the FWC must not make the variation if the employer that will be covered by the agreement is specified in a single interest employer authorisation in relation to any of the affected employees.