Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:7_18
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 7 cl 18
Character Range: 303413–305978

18  Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees
(1) This item applies in relation to an enterprise agreement made after the end of the bridging period if one or more of the employees covered by the agreement is an unmodernised award covered employee.

Non‑greenfields agreements
(2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if:
 (a) the FWC is satisfied as referred to in subsection (1) of that section in relation to the agreement; and
 (b) the FWC is satisfied, as at the test time, that each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.

Greenfields agreements
(3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if:
 (a) the FWC is satisfied as referred to in subsection (3) of that section in relation to the agreement; and
 (b) the FWC is satisfied, as at the test time, that each prospective unmodernised award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee.

FWC may assume employee better off overall in certain circumstances
(4) 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 or relevant award‑based transitional instrument and transitional APCS 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.

State reference transitional awards or common rules: transitional APCSs not relevant
(5) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded.
Note: State reference transitional awards or common rules contain terms dealing with wages.