Document ID: chunk:federal_register_of_legislation:C2022C00331:clause:7_19
Version: federal_register_of_legislation:C2022C00331
Segment Type: clause
Provision Reference: sch 7 cl 19
Character Range: 305978–308681

19  Application of better off overall test to variation of enterprise agreements that cover unmodernised award covered employees
(1) This item applies in relation to a variation of an enterprise agreement if:
 (a) the variation is made after the end of the bridging period; and
 (b) one or more of the employees who are covered by the agreement is an unmodernised award covered employee.
(2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test.

Modification of the better off overall test
(3) An enterprise agreement as proposed to be varied passes the better off overall test if the FWC is satisfied, as at the test time, that:
 (a) 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; and
 (b) 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.

FWC may assume employee better off overall in certain circumstances
(4) For the purposes of determining whether the enterprise agreement as proposed to be varied 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.

FWC must disregard individual flexibility arrangement
(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

State reference transitional awards or common rules: transitional APCSs not relevant
(6) 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.