3D.01Better off overall test in relation to transitional provisions inserted into modern awards by FWA after Division 2B State referral

#### 3D.01 Better off overall test in relation to transitional provisions inserted into modern awards by FWA after Division 2B State referral For paragraph 8(1) of Schedule 2 to the Act, Schedule 7 to the Act is modified by inserting the following Part after Part 4A. Part 4D—Better off overall test in relation to transitional provisions inserted into modern awards by FWA after Division 2B State referral 20B Better off overall test (1) This item applies in relation to: (a) an enterprise agreement, or an enterprise agreement that is proposed to be varied, that is to be assessed under subsection 193(1) or (3) of the FW Act, for the purpose of determining whether it passes the better off overall test, during the period (the transitional period): (i) starting on 1 January 2010; and (ii) ending on 31 December 2014; and (b) a modern award that contains a term which makes provision for the transition: (i) from: (A) a Division 2B State award that covered employees immediately before the modern award comes into operation; or (B) a transitional award, within the meaning of Schedule 6 to the Workplace Relations Act 1996, that covered employees immediately before the modern award comes into operation; and (ii) to the terms and conditions of employment of those employees covered by the modern award. (2) For the purpose of determining whether the enterprise agreement, or the enterprise agreement as proposed to be varied, passes the better off overall test, subsections 193(1) and (3) of the FW Act apply as if: (a) FWA were required, at the test time under the relevant subsection, to compare the enterprise agreement, or the enterprise agreement as proposed to be varied, with: (i) the relevant modern award as it operates at the test time; and (ii) the relevant modern award as it operates on 31 July in each year in the transitional period until the nominal expiry date of the enterprise agreement, that would be the first day of the first full pay period for an employee covered by the enterprise agreement; and (b) FWA were required to assume, at the test time, that the modern award will not be varied before the days mentioned in subparagraph (a)(ii). (3) Subsections 193(1) and (3) of the FW Act also apply as if they provided that: (a) if FWA carries out a comparison in accordance with subitem (2); and (b) for 1 or more of the comparisons, FWA is not satisfied that each of the employees mentioned in subsection 193(1) or (3) of the FW Act would be better off overall if the enterprise agreement, or the enterprise agreement as proposed to be varied, applied to the employee than if the modern award applied to the employee; the enterprise agreement, or the enterprise agreement as proposed to be varied, does not pass the better off overall test.