Fair Work Act 2009

This section applies if, immediately before the determination is made, an enterprise agreement applies to one or more employees who will be covered by the determination.

A term that is included in the determination to comply with subsection 270(3), and that deals with a particular matter, must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the matter.

A term that is included in the determination to comply with subsection 273(2), (4), (5) or (6) must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the same matter as the term included in the determination.

In addition, the delegates’ rights term included in compliance with subsection 273(6) must not be less favourable than the delegates’ rights term in any modern award that covers a workplace delegate to whom the determination applies (see subsection 273(7)).

If a term to be included in the determination is not less favourable to a class of employees to which a particular employee belongs, the FWC is entitled to assume, in the absence of evidence to the contrary, that the term is not less favourable to the employee.

Subsection (2) does not apply to a term that provides for a wage increase.

For the avoidance of doubt, subsection (2A) does not apply to any agreed term for the determination that:

is of a kind referred to in subsection 273(3), (4) or (5); or

is a delegates’ rights term for the workplace delegates to whom the determination applies.