See Fair Work Act 2009 s.189
The Fair Work Act allows for the approval of enterprise agreements that do not pass the better off overall test if, because of exceptional circumstances, approval of the agreement would not be contrary to the public interest.
The Fair Work Commission may only approve an agreement on this basis if failure to pass the better off overall test is the only reason the Commission is not required to approve the agreement.
In Nulty v Blue Star Group Pty Ltd, the Full Bench said:
"In summary, the expression 'exceptional circumstances' has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural '‘circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."
An example of a case in which the Commission may be satisfied exceptional circumstances exist is where the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.
The test to be applied is not whether the agreement is in the broader public interest but whether the agreement, because of exceptional circumstances, is not contrary to the public interest, which is a lower test.
Public interest considerations could involve deciding whether a term of an agreement undermines or reduces entitlements in a modern award to the extent that members of the public whose employment is regulated by that award may have interests which are impacted by the approval of the agreement.
It may also be the case that there is a public interest in maintaining a level playing field among employees in a particular industry or sector. This is particularly so given that the objects of the Fair Work Act to ensure 'a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders'.
 Fair Work Act s.189(1)(b).
 Fair Work Act s.189(3).