When do employers and employees get the BOOT?

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When do employers and employees get the BOOT?

Some employers and employees are unclear about the commencement of the better off overall test (BOOT) to agreement making under the Fair Work legislation.

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Some employers and employees are unclear about the commencement of the better off overall test (BOOT) to agreement making under the Fair Work legislation.
 
The BOOT applies from 1 January 2010 and so the no-disadvantage test applies until the end of 2009 in relation to federal agreements.
 
Note, however, that the National Employment Standards (NES) apply from 1 January 2010 and they seem to extend to all existing agreements. This means that agreements may need to be reassessed from 1 January 2010 to comply with the NES.
 
Bridging period
 
During thebridging period between 1 July 2009 and 1 January 2010 (ie after many Fair Work provisions commence and before modern awards and the National Employment Standards commence) enterprise agreements (and ITEAs) will have to pass the current no-disadvantage test.
 
From 1 January 2010, enterprise agreements will have to pass the BOOT, which means that each employee must be better off under the agreement than (s)he would under the relevant modern award.
 
Role of FWA
 
Fair Work Australia (FWA) can look at different classes of employee to be covered, rather than each individual employee, to determine whether each employee is better off overall. FWA must also be satisfied that the employees covered, or to be covered, by the agreement were 'fairly chosen'.
 
FWA must also be satisfied that approving a greenfields agreement lodged with it would be in the public interest.
 
Enterprise agreements should not breach the NES. Also, on 1 January 2010, existing agreements continuing into the new system will have to comply with the NES.
 
The transitional legislation is still in parliament and some procedural matters are yet to be clarified.
 
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