An overview of legal procedure & case law
An agreement that is not a greenfields agreement passes the better off overall test (BOOT) when the Fair Work Commission is satisfied that each present and prospective award covered employee would be better off overall if the agreement applied rather than the relevant modern award.[1]
The Commission needs to be satisfied that, weighing the agreement provisions as a whole with those in the award, an employee is better off overall.[2]
A greenfields agreement passes the better off overall test if the Commission is satisfied, as at the test time, that each prospective award covered employee would be better off overall if the agreement applied than if the relevant modern award applied.[3]
[1] Fair Work Act s.193(1).
[2] National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163 (Harrison SDP, Sams DP, Deegan C, 10 August 2011) at para. 47, [(2011) 210 IR 244].
[3] Fair Work Act s.193(3).