18Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees

18 Application of better off overall test to making of enterprise agreements that cover unmodernised award covered employees (1) This item applies in relation to an enterprise agreement made after the end of the bridging period if one or more of the employees covered by the agreement is an unmodernised award covered employee. (2) Despite section 193 of the FW Act, if the enterprise agreement is not a greenfields agreement, the agreement passes the better off overall test under that section only if: (b) the FWC is satisfied, as at the test time, that each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee. (3) Despite section 193 of the FW Act, if the enterprise agreement is a greenfields agreement, the agreement passes the better off overall test under that section only if: (b) the FWC is satisfied, as at the test time, that each prospective unmodernised award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee. (4) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. (5) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded. 19 Application of better off overall test to variation of enterprise agreements that cover unmodernised award covered employees (2) Despite subsections 211(4) and (5) of the FW Act, subitems (3) and (4) apply in relation to the variation for the purposes of the FWC being satisfied that the agreement as proposed to be varied passes the better off overall test. (3) An enterprise agreement as proposed to be varied passes the better off overall test if the FWC is satisfied, as at the test time, that: (a) each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; and (b) each unmodernised award covered employee, and each prospective unmodernised award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant award‑based transitional instrument and transitional APCS applied to the employee. (4) For the purposes of determining whether the enterprise agreement as proposed to be varied passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award or relevant award‑based transitional instrument and transitional APCS applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. (5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement. (6) If the relevant award‑based transitional instrument in relation to an employee is a State reference transitional award or common rule, the references in this item to a transitional APCS are to be disregarded. prospective unmodernised award covered employee, for an enterprise agreement, means a person who, if he or she were an employee at the test time of an employer covered by the agreement: (a) for the purposes of item 18—means the time the application for approval of the agreement by the FWC was made under section 185 of the FW Act; and (b) for the purposes of item 19—means the time the application for approval of the variation of the enterprise agreement by the FWC was made under section 210 of that Act. (b) at the test time, is covered by an award‑based transitional instrument (the relevant award‑based transitional instrument) that: