The Fairness Test - key points

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The Fairness Test - key points

The WorkChoices Fairness Test applies to workplace agreements (collective agreements or AWAs) that are lodged on or after 7 May 2007 and which alter or exclude any protected award conditions.

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The WorkChoices Fairness Test applies to workplace agreements (collective agreements or AWAs) that are lodged on or after 7 May 2007 and which alter or exclude any protected award conditions.

The Fairness Test requires that a new agreement provides 'fair compensation' for altering or excluding protected award conditions. An assessment of each relevant agreement will be carried out by the Workplace Authority.

Agreements which do not change or exclude any protected award conditions (or AWAs which pay a basic salary of at least $75,000) are not subject to the Fairness Test.

Protected award conditions

Protected award conditions are the following provisions in the award or NAPSA applying to the employee(s) under the proposed agreement:

  • rest breaks
  • incentive-based payments and bonuses
  • annual leave loadings
  • public holidays including penalty rates for working on public holidays
  • monetary allowances
  • overtime and shift loadings
  • other penalty rates

Employee Information Statements

Employers must give a copy of the relevant employee information statement to the employees who will be subject to a proposed agreement. These statements have been changed to take account of the Fairness Test. Employers should give out copies of the new statement, not the old one.

Copies of: 1. Information Statement for Employees (Australian workplace agreements), 2. Information Statement for Employees (Collective agreements), and 3. Information Statement for Employees (Greenfields agreements), are available from the Workplace Authority's website - follow the 'How to make a workplace agreement' link on the right hand and then follow the link for the relevant agreement type on the left. The form is under Publications - as is the relevant declaration form to be used when lodging.

Lodging an agreement which alters protected award conditions

Agreements applying to award covered employees which modify or exclude protected award conditions will now be subject to a 'fairness test' carried out by the Workplace Authority to determine whether the employee has been adequately compensated for trading off the condition or conditions.

The Workplace Authority has posted a new 'additional information form' for use when lodging a collective agreement or an AWA and a supporting information brochure.

The 'additional information form' is not mandatory, but using it will speed up the process of assessing whether the agreement meets the Fairness Test. These documents can be accessed from the website - follow the 'Read more' prompt under the 'Important notice - Fairness Test for workplace agreements' heading.

Pre-lodgement assessment

An employer who wishes to change or exclude one or more protected award conditions in an agreement may apply to the Workplace Authority to have the proposed agreement assessed before it is lodged. The pre-assessment application form for AWAs and collective agreements can be accessed from the Workplace Authority's website under the 'Lodge your workplace agreement' link, and follow the 'more information' link on the pop-up.

Distinguish pre-lodgement Fairness Test assessment and pre-lodgement prohibited content assessment

The pre-lodgement Fairness Test assessment is independent of the existing pre-lodgement prohibited content assessment. The Workplace Authority's pre-lodgement prohibited content assessment remains, and can also be requested.

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