Introduction
A Commission Member can reconsider whether an agreement passes the better off overall test. They can only do this when the pattern or kind of work, or type of employment were not considered before.
Content
To apply the better off overall test, a Commission Member must make a global assessment about whether each award covered employee and each reasonably foreseeable employee is better off under the enterprise agreement than if the modern award applied. The Commission will consider the patterns or kinds of work, or types of employment, that are reasonably foreseeable at a particular enterprise.
Parties can apply to us for a reconsideration of whether an agreement passes the better off overall test where an agreement was:
- made on or after 6 June 2023, and
- approved by the Commission having regard to certain patterns or kinds of work, or types of employment
AND
- there has been a material change in working arrangements, or
- the circumstances were not properly considered during the approval process.
Example
Content
Before approving the agreement, the Commission Member had regard to work on Saturdays and Sundays as a pattern of work for a particular group of employees. At the test time some employees worked only on Sundays, and the Commission Member did not have regard, to this pattern of work.
In these circumstances, the Commission Member did not have regard to a particular pattern or kind of work and as part of an application for reconsideration is required to reconsider the better off overall test with respect to the different pattern of work.
See section 227A and section 227B of the Fair Work Act 2009.
Who can make an application for reconsideration?
The following parties can make an application for reconsideration:
-
One or more of the employers covered by the agreement;
-
An employee covered by the agreement;
-
An employee organisation covered by the agreement (for example, a union)
To apply for an application for reconsideration, use Form F85.
If you would like to request a copy of an award at a particular point in time to assist in making your application, please contact awards@fwc.gov.au.
Applying the better off overall test for reconsiderations
The Commission will apply the better off overall test in the same way it does for an application for approval of an enterprise agreement.
If the agreement does not pass the better off overall test
If the Commission is concerned that an enterprise agreement does not pass the better off overall test on reconsideration, the Commission may: