Fair Work Commission

Overview

Enterprise agreements can be varied, with the approval of the Fair Work Commission, in 3 ways:

• by agreement between the employer and employees
• to remove ambiguity or uncertainty, or
• to resolve a difficulty about their interaction with the casual employee definition or casual conversion rights in the Fair Work Act 2009 (the Act), or to make them operate effectively with these provisions.

The Commission provides a checklist to assist with varying an agreement:

• Vary a single enterprise agreement legislative checklist (Word)

The Fair Work Commission will continue to expedite any applications to vary agreements to deal with the consequences of COVID-19 sent to COVID19Applications@fwc.gov.au

Variation by agreement

Employers and their employees may agree to vary an enterprise agreement, but such a variation has no effect unless it is approved by the Fair Work Commission.

An employer may request that the employees endorse the variation by voting for it.

How to apply for approval of a variation

To seek approval of an enterprise agreement variation by the Commission, a person covered by the agreement must make an application using Form F23, which is available on our Forms page.

The application must be accompanied by:

1. The agreement as varied:

• the agreement must incorporate all of the variations being made
• the agreement must incorporate or attach any undertakings that were made for the agreement when it was originally approved
• the agreement must include any model mandatory terms – consultation and/or flexibility terms – that were taken to be a term of the original agreement
• the agreement must not contain track changes or highlighted text, and
• the agreement should either retain the original signatures on the agreement (ie the signatures when the agreement was originally made) or be left unsigned.

2. A signed variation meeting all of the following criteria:

The variation is the document employees are being asked to approve.

• the variation must contain all proposed variations to the agreement
• the variation must be signed by both an employer and employee/union representative, with their full name, position and address, and
• the variation must be provided in a separate document. A marked up or track changes version of the current agreement may not be accepted.

3. The following forms:

• Form F23 – Application for approval of variation of an enterprise agreement
• Form F23A – Employer's declaration in support of variation of an enterprise agreement; and
• if a union is covered by the approved agreement, or if there is confirmation of service to the union, Form F23B – Declaration of employee organisation in relation to variation of an enterprise agreement. This includes if a union was served with all application documents including Form F23, Form F23A and variation.

Variation to remove ambiguity or uncertainty

Any of the parties to an enterprise agreement, an agreement-based transitional instrument or a Division 2B State instrument may apply to the Commission under s.217 of the Act for a variation of their agreement to remove ambiguity or uncertainty.

If the parties to an agreement do not agree about a proposed variation, the Commission can help them resolve their differences.

A variation operates from the day specified in the Commission's decision to vary the agreement.

Which application form?

• Enterprise agreement – use Form F1 – Application (No specific form provided)
• Agreement-based transitional instrument – use Form F25 – Application to vary transitional instrument to remove ambiguities etc.
• Division 2B State instrument – use Form F25 – Application to vary transitional instrument to remove ambiguities etc.

All the forms are available from our Forms page.

Variation to resolve a difficulty or uncertainty about the definition of casual employee and casual conversion rights

Any of the parties to an enterprise agreement may apply to the Commission to vary their agreement to:

• resolve an uncertainty or difficulty about the interaction between the agreement and the definition of casual employee (s.15A) or the casual conversion provisions (Division 4A of Part 2-2) in the Act, or
• make the agreement operate effectively with those provisions of the Act.

This only applies to agreements made before 27 March 2021.

A variation operates from the day specified in the determination made by the Commission. This may be a day before the determination was made.

How to apply

Apply using Form F23C – Application for the Commission to vary an enterprise agreement to resolve an uncertainty or difficulty about the definition of casual employee or casual conversion rights.

This form cannot be used to apply for a variation of an enterprise agreement if the agreement was made on or after 27 March 2021.