Fair Work Commission

Ensure that your agreements includes all of the entitlements agreed on during bargaining. This may include rates of pay, entitlements for employees and classification descriptions for employees.

Check your agreement thoroughly and correct any errors as once the agreement is voted on by employees, you cannot change it before you lodge it for approval.

Check the rates of pay in the agreement are not falling below the rates of pay in the modern award. If they are below, this may delay the approval of your agreement or mean that the agreement cannot pass the BOOT.

The Commission Member needs to be satisfied that the agreement passes the BOOT. An agreement will pass the BOOT if the Commission Member is satisfied that at the time the application for approval is lodged with the Commission (the ‘test time’), each current and future employee who will be covered by the agreement, will be better off overall if the agreement applies to them rather than the relevant modern award. The agreement will only apply to an employee once it is approved by the Commission.

The BOOT requires the identification of agreement terms which are more beneficial and less beneficial when compared to the relevant modern award, then balancing the terms to come to an overall view.

An agreement may pass the BOOT even if some award benefits have been reduced or removed entirely, so long as overall those reductions are more than offset by the benefits under the agreement. However, an agreement cannot set a base rate of pay for an employee that is less than the base rate of pay in the relevant modern award.

When you are finalising your agreement, make sure to consider all of the classifications in the agreement, including juniors and apprentices. The Commission has to be satisfied that all classifications are better off.

Prepare a pay rate comparison document to help the Commission determine and match the corresponding award rates.

The Commission Member may ask you for more information if the material you have provided is not clear or does not allow for the agreement to be properly assessed.

The Commission Member may ask you to re-lodge documents or provide additional material that will help in the assessment of the agreement. For example, if your agreement contains job titles that are different to the award, you may be asked how the classifications align.

If your agreement meets all of the requirements in the Act, including the BOOT, the Commission Member may approve it.

For more information see sections 186(2)(d),193 and 206 of the Act.