The Better Off Overall Test (or ‘BOOT’), which is intended to ensure that each employee covered by an enterprise agreement is better off overall than if covered by the relevant Award, is being simplified.
From 6 June 2023, the Fair Work Commission will:
- be legislatively required to approve an EA based on a “global” better off overall assessment (as opposed to a line-by-line assessment, comparing each entitlement within the EA against an underlying Award);
- no longer need to consider the circumstances of prospective employees (but will be required to consider the circumstances of reasonably foreseeable employees);
- only be required to consider patterns of work or kinds of work that are reasonably foreseeable at the time of the test, having regard to the nature of the enterprise/s to which the EA relates (i.e. hypothetical roster patterns that are not reasonably foreseeable will not be considered at the approval stage);
- be able to make an assessment by reference to classes of employees (as opposed to each individual employee) unless there is evidence that identifies individual employees as worse off under the EA;
- be empowered to directly amend an agreement where necessary to address a concern that it does not otherwise meet the BOOT (taking into account the views of employer and employee representatives);
- be able to reassess an agreement if relevant circumstances were not properly considered during the approval process; and
- need to give primary consideration to common views (if any) expressed by employer and employee representatives about whether the agreement passes the BOOT.
