Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In considering whether to make an order under subsection 137A(1) in relation to a particular workplace group, the FWC must have regard to:
(a) the history of award coverage and agreement making in relation to the employees in the workplace group; and
(b) the wishes of the members of the workplace group; and
(c) the extent to which particular organisations of employees represent the employees in the workplace group, and the nature of that representation; and
(d) any agreement or understanding of which the FWC becomes aware that deals with the right of an organisation of employees to represent under this Act or the Fair Work Act the industrial interests of a particular class or group of employees; and
(e) the consequences of not making the order for any employer, employees or organisation concerned; and
(f) any matter prescribed by the regulations.
(2) However, if:
(a) the workplace group relates to a genuine new enterprise (within the meaning of the Fair Work Act) that one or more employers are establishing or propose to establish; and
(b) the employer or employees have not employed any of the persons who will be necessary for the normal conduct of that enterprise;
the FWC must, as far as practicable, have regard to the matters set out in subsection (1) as they would apply in relation to the persons who would be the employees in the workplace group.
Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12 of the Fair Work Act).
(3) If:
(a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and
(b) because of the alteration, members of an association of employees registered under a State or Territory industrial law have become eligible for membership of the organisation;
a reference in this section to the organisation includes a reference to the association referred to in paragraph (b) of this subsection.