Adding or removing employers from a single interest employer authorisation

The Fair Work Act allows for single interest employer authorisations to be varied while parties are bargaining for the single interest employer agreement. 

Employers can be added to the authorisation if they want to be covered by the single interest employer agreement when it is made, and employers can also be removed from the authorisation, meaning they will not be covered by the eventual agreement.

If the single interest employer agreement has already been made, you will have to apply to vary the agreement, and not the authorisation. See Adding employers and their employees to a single interest enterprise agreement. 

There are also provisions to remove employers and employees from multi-enterprise agreements.

You can apply to vary a single interest employer authorisation to remove an employer if you are:

• the employer
• a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates.

We must vary the authorisation to remove the employer’s name if:

• the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express their views (if any) on the application to us, and
• it is no longer appropriate for the employer to be specified in the authorisation because of a change in the employer’s circumstances.

In addition, if an employee bargaining representative applies, we must vary the authorisation to remove an employer if we are satisfied that:  

• the employer employs less than 50 employees
• the other employers named in the authorisation and their employees’ bargaining representatives have had the opportunity to express their views (if any) on the application to us
• most of the relevant employees (employees of the employer who is to be removed from the authorisation) have voted to approve the removal of the employer’s name, and
• there are no reasonable grounds for believing that the removal has not been genuinely approved by the employees.

See Section 251 of the Fair Work Act 2009 for the precise requirements that we must consider before varying an authorisation to remove an employer.

You can apply to vary a single interest employer authorisation to add an employer if you are:

• the new employer
• A bargaining representative for an employee of the employer that will join bargaining for the proposed single interest employer agreement.

In broad terms, in considering an application to vary a single interest employer to add an employer, we must consider the same matters as when deciding whether to make the authorisation.

We must vary the authorisation if satisfied:

• the employers specified in the authorisation and the bargaining representatives of their employees have had an opportunity to express their views (if any) to us on the application
• if the new employer’s name is added, the employers specified in the authorisation will continue to be certain franchisees or common interest employers, as described in Single interest employer authorisations. Where an employee bargaining representative applies for the variation, this is presumed where the employer has 50 employees or more, unless otherwise proved, and
• the additional requirements specified below are met (as applicable).

Applications made by the new employer – We must also be satisfied that no one coerced, or threatened to coerce, the new employer to apply to be added.

Applications made by a bargaining representative – that the new employer:

• employed at least 20 employees at the time the variation application was made
• has not made an application for a single interest employer authorisation that has not yet been decided that would cover the employees that will be covered by the agreement
• is not named in an existing single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement
• a majority of the new employer’s employees (employed at a time determined by us) want to bargain for the agreement that will cover them
• the new employer and the employees that will be covered by the agreement are not covered by an enterprise agreement that has not passed its nominal expiry date at the time we will make the variation, and
• the new employer and a union entitled to represent the industrial interests of their employee(s) to be covered by the agreement have not already agreed in writing to bargain for a proposed single enterprise agreement that would cover the same (or substantially the same) employees.

However, as is the case when making a single interest employer authorisation, we may refuse to vary the authorisation if:

• the new employer is bargaining in good faith for a proposed enterprise agreement that will cover the same (or substantially the same) employees
• the new employer and those employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the same (or substantially the same) employees, and
• on the day we will vary the authorisation, less than 9 months have passed since the most recent nominal expiry date of such an agreement expired. 

We cannot vary a single interest employer authorisation if, because of the variation, the proposed agreement to which the authorisation relates would cover employees in relation to general building and construction work.

To vary a single interest employer authorisation to add or remove employers, please use the Form F1. 

There is more detailed information on single interest employer authorisations in the Fair Work Commission benchbook.

Fair Work Act 2009: Section 251