ARTICLE · 14 JULY 2009

Giving The No-Disadvantage Test – "The BOOT"

Norton Rose Fulbright Australia

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As Australian businesses get ready for the introduction of the Rudd Government's Fair Work Act 2009 and its agreement-making provisions, one area that remains uncertain is how the new "better off overall" test (BOOT), will be applied to enterprise agreements under the new Act.

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As Australian businesses get ready for the introduction of the Rudd Government's Fair Work Act 2009 (Cth) (FW Act) and its agreement-making provisions, one area that remains uncertain is how the new "better off overall" test (BOOT), will be applied to enterprise agreements under the new Act.

Whilst the bulk of the FW Act (including the new agreement making provisions) will come into force on 1 July 2009, the BOOT will not come into operation until 1 January 2010.

This means that in the interim period between 1 July 2009 (when the FW Act commences) and 1 January 2010 (when modern awards are introduced), any enterprise agreements lodged will be assessed against the no-disadvantage test (NDT) and any applicable common rule award. From 1 January 2010 onwards, enterprise agreements will instead be assessed against the BOOT, as against the new modern awards.

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