Fair Work Act 2009

This section applies for the purposes of determining whether an enterprise agreement passes the better off overall test under section 193.

To avoid doubt, the FWC must undertake a global assessment of whether each employee concerned would be better off having regard to:

the terms of the agreement which would be more beneficial to the employee if the agreement applied to the employee than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee; and

the terms of the agreement which would be less beneficial to the employee if the agreement applied to the employee than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to the employee.

The FWC must give consideration to any views relating to whether the agreement passes the better off overall test that have been expressed by any of the following:

the employer or employers that are covered by the agreement;

if the agreement is not a greenfields agreement:

the award covered employees for the agreement; and

if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees;

in any case—a bargaining representative for the agreement.

The FWC must give primary consideration to a common view (if any) relating to whether the agreement passes the better off overall test expressed by all of the following:

the bargaining representative or bargaining representatives of the employer or employers that are covered by the agreement;

the bargaining representative or bargaining representatives of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation);

if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—the bargaining representative or bargaining representatives of those employees (other than a bargaining representative that is not an employee organisation).

Subsection (4) does not apply if the agreement is a greenfields agreement.

The FWC may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time. In considering what is reasonably foreseeable, the FWC must have regard to the nature of the enterprise or enterprises to which the agreement relates.

The FWC must determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of subsection (6) if a view is expressed by any of the following that it is, or is not, reasonably foreseeable:

the employer or employers that are covered by the agreement;

if the agreement is not a greenfields agreement:

the award covered employees for the agreement; and

if the agreement is a single‑enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies—those employees;

in any case—a bargaining representative for the agreement.

If a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award, supported bargaining agreement or single interest employer agreement (as the case requires) applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.