Document ID: chunk:federal_register_of_legislation:C2009A00124:clause:3a_20b
Version: federal_register_of_legislation:C2009A00124
Segment Type: clause
Provision Reference: sch 3A cl 20B
Character Range: 143163–145692

20B  Application of better off overall test to variation of enterprise agreements that cover Division 2B State award covered employees
(1) This item applies in relation to a variation of an enterprise agreement if:
 (a) the variation is made on or after the Division 2B referral commencement; and
 (b) one or more of the employees covered by the agreement is a Division 2B State 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 FWA 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 only if:
 (a) FWA is satisfied, as at the test time, as mentioned in subitem 19(3) of this Schedule in relation to the agreement as proposed to be varied (to the extent that subitem 19(3) is applicable); and
 (b) FWA is satisfied, as at the test time, that each Division 2B State award covered employee, and each prospective Division 2B State award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant Division 2B State award applied to the employee.
Note: Item 19 of this Schedule deals with testing enterprise agreements as proposed to be varied against other instruments (such as modern awards). A variation to which this subitem applies will not be tested against one or more such other instruments in relation to Division 2B State award covered employees.

FWA 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 Division 2B State award applied to that class, FWA 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.

FWA 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, FWA must disregard any individual flexibility arrangement that has been agreed to by a Division 2B State award covered employee and his or her employer under the flexibility term in the agreement.