How to pass the BOOT test

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As most practitioners are aware, an enterprise agreement cannot be registered by the Fair Work Commission unless the Commission is satisfied that the proposed agreement renders the employees who are to be covered by it better off overall than if the applicable award is applied. But how is the BOOT test applied?

Here is the answer in a nutshell.

“It is well established that the test requires the identification of terms which are more beneficial for an employee, terms which are less beneficial, and an overall assessment of whether an employee would be better off under the agreement. See AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833Armacell Australia Pty Ltd [2010] FWAFB 99858 The overall assessment involves a global comparison. CFMEU v TR Construction Services Pty Ltd [2017] FWCFB 1928 at [20] However, it is clear from s.193(1) that this global comparison must be satisfied in relation to each award covered and prospective award covered employee.  Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2016] FWCFB 2887 at [33] The test is not directed at whether most employees or most classes of employees are better off. See CFMEU v SESLS Industrial Pty Ltd [2017] FWCFB 3659

See Construction, Forestry, Mining and Energy Union v KAEFER Integrated Services Pty Ltd (2017) FWCFB 5630 delivered 20 November 2017 per Hatcher VP, Colman DP and Harper-Greenwell C