Commonwealth Repealed Acts

This legislation has been repealed.

WORKPLACE RELATIONS ACT 1996 - SECT 346D

             (1)  An ITEA passes the no‑disadvantage test if the Workplace Authority Director is satisfied that the ITEA does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employee whose employment is subject to the agreement under any reference instrument relating to the employee.

             (2)  A collective agreement passes the no‑disadvantage test if the Workplace Authority Director is satisfied that the agreement does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees whose employment is subject to the agreement under any reference instrument relating to one or more of the employees.

          (2A)  For the purposes of subsection (1) or (2):

                     (a)  a law of a State or Territory that:

                              (i)  relates to long service leave; and

                             (ii)  immediately before the agreement was lodged, applied to an employee referred to in that subsection, or would have applied to such an employee if he or she had been employed by the employer at that time;

                            is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and

                     (b)  if, apart from this subsection, the only reference instrument relating to the employee is a designated award for the employee--the designated award is to be disregarded to the extent (if any) that it provides for long service leave.

             (3)  An employee collective agreement or a union collective agreement is taken to pass the no‑disadvantage test if:

                     (a)  it does not meet the requirements of subsection (2); but

                     (b)  the Workplace Authority Director is satisfied that, because of exceptional circumstances, approval of the agreement would not be contrary to the public interest.

             (4)  An example of a case where the Workplace Authority Director may be satisfied that the requirements in paragraph (3)(b) are met is where making the agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the employer's business.

             (5)  If the Workplace Authority Director decides under subsection (3) that an agreement is taken to pass the no‑disadvantage test, the Workplace Authority Director must publish his or her reasons for the decision on the Workplace Authority's website.

             (6)  An ITEA is taken to pass the no‑disadvantage test if there is no reference instrument in relation to the employee whose employment is subject to the agreement.

             (7)  A collective agreement is taken to pass the no‑disadvantage test if there is no reference instrument in relation to any of the employees whose employment is subject to the agreement.

             (8)  To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees whose employment is subject to a collective agreement:

                     (a)  in a case where the agreement passes the no‑disadvantage test under subsection (2)--it passes the test in relation to all employees whose employment is subject to the agreement; or

                     (b)  in a case where the agreement does not pass the no‑disadvantage test under subsection (2)--it does not pass the test in relation to any employees whose employment is subject to the agreement.

Note 1:       In addition to the no‑disadvantage test, the Australian Fair Pay and Conditions Standard prevails over a workplace agreement to the extent to which the Australian Fair Pay and Conditions Standard provides a more favourable outcome for the employee or employees--see section 172.

Note 2:       This section applies to a workplace agreement as varied under Division 8 in a corresponding way to the way in which it applies to a workplace agreement--see subsection 346B(2).

Note 3:       See subsection 346J(1) for how the Workplace Authority Director makes decisions under this section.