31 Mar 2026
Libby Pallot, Ben Tallboys, Anthony Massaro, Mandi Xu, Walter MacCallum, Samuel Ellemor, Abbey Burns, Kelly Ralph, Morgan Smithe, Philip Gruszka, Shi Jing Wong, Harrison Gray, Emily Tang, Molly Lawlor, Sarah Newman, Sara Ibrahim, Emily Aforozis, Martine Rodger, Sophie Harrington and Laura Rasile
Legislative changes
Earlier this year, Deputy President Slevin of the Fair Work Commission exercised, for the first time, the Commission’s new power to directly amend enterprise agreement provisions that do not satisfy the ‘better off overall test’ (BOOT). Since that time, other members of the Commission have indicated a willingness to follow suit.
Prior to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 reforms, the Commission’s usual approach to BOOT issues was to seek undertakings or otherwise reject an agreement’s approval.
Now, section 191A of the Fair Work Act 2009 (Cth) (FW Act) provides that if the Commission has a concern that an agreement does not meet the BOOT, it may amend the agreement to address the concern. While the Commission is required to seek the views of the parties, bargaining representatives and the covered employees, ultimately the Commission may amend the agreement without the parties’ consent.
Accordingly, the Commission may now approve (and publish) an agreement with terms that differ to those initially negotiated by the employer and endorsed by staff members at a vote.
New powers in practice
Amending rostering practices
In the application for approval of three Aldi Stores enterprise agreements, the Commission raised BOOT concerns about clauses which enabled flexible rostering for part-time warehouse employees. The agreements submitted for approval required part-time employees to be available to work on any day of the week for an unspecified duration, with the end time of each shift determined by Aldi and communicated to employees on the day. In contrast, the Storage Services and Wholesale Award 2020 (SSW Award) requires an employer and a part-time employee to agree in writing on a regular pattern of work, specifying the days of the week the employee will work and the hours and the actual starting and finishing times each day. Despite the Aldi agreements providing a higher rate of pay than the SSW Award, the Commission formed the view that the employees would not be better off overall.
At hearing, Deputy President Slevin invited Aldi to provide an undertaking to remedy any potential BOOT concerns. Aldi declined to do so, asserting that the flexible rostering provisions were essential to its operational needs.
Having sought and considered the views of the parties, bargaining representatives, and covered employees, the Commission amended the part time provisions (by adding an annexure), bringing them in line with the SSW Award, before approving the agreements.
Amending rates of pay to a higher rate
On 16 January 2026 the Full Bench on appeal, overturned a previously approved not-for-profit children's education and care provider’s (Thrive) application for an enterprise agreement, due to BOOT related concerns. The primary issue related to the rate of pay for the ‘Service Leader’ position relative to the applicable rate of pay in the Children’s Services Award 2010 (CS Award).
Thrive argued that the Service Leader was more akin to an ‘Assistant Director’ under the CS Award, rather than a ‘Director’, because "certain administrative functions and statutory obligations" are performed by "managerial employees with responsibility for a large number of centres". However, the Full Bench did not agree, stating that ‘a Service Leader employed by Thrive is the most senior managerial employee working at a service and is responsible for the day-to-day management of the service. In our view, a Service Leader cannot sensibly be said to be merely assisting a Director.’ Accordingly, the Service Leader’s rate of pay did not satisfy the BOOT.
During the appeal, Thrive indicated that it would not give an undertaking to increase the rates of pay in the Agreement (as proposed by the United Workers’ Union).
On 18 February 2026, Deputy President Millhouse – who must now revisit the application to approve Thrive’s agreement – indicated a likelihood to use the Commission’s new powers to increase the Service Leader’s rate of pay in the agreement to be 1 cent per hour above the Director rate of pay in the CS Award.
Should this occur, the use of the Commission’s new powers to increase rates of pay in enterprise agreements is likely to be a significant concern for employers.
Learnings for Employers
Enterprise agreements should be tailored to the relevant workplace and can be important tools for providing employers with flexibility that the underlying award(s) may not provide. However, the new laws mean if employers stray too far from the relevant award(s) and cannot convince the Commission that employees are better off, they may be left with a significantly different agreement to what was negotiated and agreed within the workplace.
The Commission’s new powers to amend agreements, and its willingness to use them, signals to employers the importance of proactively identifying any potential BOOT issues before an agreement goes to vote. This will enable employers to be on the front foot, and either correct the issues, or put a strategy in place to manage risk.
How can we help?
To assist with this process, the RK Workplace Relations, Employment and Safety team can simulate the BOOT using the final draft of your agreement. We can identify agreement terms which are more beneficial, and the terms which are less beneficial, before making an overall global assessment as to whether employees would be better off under the agreement than under the relevant award. We can then provide tailored technical, strategic, and practical guidance to support you through every stage of the agreement approval process.
Indeed, last year we supported a number of clients with their end-to-end bargaining. Please reach out to receive an overview of the broad range of ways in which our team can support your upcoming enterprise agreement negotiation process.
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