Commonwealth Consolidated Acts

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FAIR WORK ACT 2009 - SECT 193

Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

             (1)  An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee .

FWC must disregard individual flexibility arrangement

             (2)  If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.

When a greenfields agreement passes the better off overall test

             (3)  A greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each prospective award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

Award covered employee

             (4)  An award covered employee for an enterprise agreement is an employee who:

                     (a)  is covered by the agreement; and

                     (b)  at the test time, is covered by a modern award (the relevant modern award ) that:

                              (i)  is in operation; and

                             (ii)  covers the employee in relation to the work that he or she is to perform under the agreement; and

                            (iii)  covers his or her employer.

Prospective award covered employee

             (5)  A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

                     (a)  would be covered by the agreement; and

                     (b)  would be covered by a modern award (the relevant modern award ) that:

                              (i)  is in operation; and

                             (ii)  would cover the person in relation to the work that he or she would perform under the agreement; and

                            (iii)  covers the employer.

Test time

             (6)  The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.

FWC may assume employee better off overall in certain circumstances

             (7)  For the purposes of determining whether an enterprise agreement passes the better off overall test, 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 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.



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