Document ID: chunk:federal_register_of_legislation:C2007A00107:clause:1_346m:p1
Version: federal_register_of_legislation:C2007A00107
Segment Type: clause
Provision Reference: sch 1 cl 346M (pt 1/2)
Character Range: 33613–36470

346M  When does an agreement pass the fairness test?

 (1) A workplace agreement passes the fairness test if:
 (a) in the case of an AWA—the Workplace Authority Director is satisfied that the AWA provides fair compensation to the employee whose employment is subject to the AWA in lieu of the exclusion or modification of protected award conditions that apply to the employee; or
 (b) in the case of a collective agreement—the Workplace Authority Director is satisfied that, on balance, the collective agreement provides fair compensation, in its overall effect on the employees whose employment is subject to the collective agreement, in lieu of the exclusion or modification of protected award conditions that apply to some or all of those employees.

Note: This section applies to a workplace agreement as varied in a corresponding way to the way in which it applies to a workplace agreement—see subsection 346B(3).

 (2) In considering whether a workplace agreement provides fair compensation to an employee, or in its overall effect on employees, the Workplace Authority Director must first have regard to:
 (a) the monetary and non‑monetary compensation that the employee or employees will receive under the workplace agreement, in lieu of the protected award conditions that apply to the employee or employees under a reference award in relation to the employee or employees; and
 (b) the work obligations of the employee or employees under the workplace agreement.

 (3) In considering whether a workplace agreement provides fair compensation to an employee or in its overall effect on employees, the Workplace Authority Director may also have regard to the personal circumstances of the employee or employees, including in particular the family responsibilities of the employee or employees.

 (4) In exceptional circumstances, and if the Workplace Authority Director is satisfied that it is not contrary to the public interest to do so, the Workplace Authority Director may, in addition to the matters specified in subsections (2) and (3), also have regard to the industry, location or economic circumstances of the employer and the employment circumstances of the employee or employees when considering whether a workplace agreement provides fair compensation to an employee or in its overall effect on employees.

 (5) An example of a case where the Workplace Authority Director may be satisfied that it is not contrary to the public interest to have regard to the industry, location or economic circumstances of the employer is where the workplace agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the employer's business.

 (6) In deciding whether a workplace agreement passes, or does not pass, the fairness test, the Workplace Authority Director may inform himself or herself in