Loosening the BOOT straps and 9 other Industrial Relations changes

BOOT (better off overall test) and other IR changes might be coming

The Better Off Overall Test (BOOT) is consideration by the Fair Work Commission whether a proposed Enterprise Agreement (EA) or Enterprise Bargaining Agreement (EBA) is better off overall than the applicable industrial award.   A proposed bill is looking to change this and give more ability for Employers and the Fair Work Commission to pass EA’s and EBA’s with more regularity.    

The Bill 

The proposed Industrial Relations bill is aimed at reforming a number of key problem areas in workplace law was introduced including: 

  • Changes to the BOOT 
  • Setting time limits for EA and EBA approval 
  • The ability to approve longer term Greenfields agreements 
  • Limiting trade union involvement in EA’s they are not a party to 
  • Definition of casual employee 

From an Employment Lawyer’s perspective the proposed changes will have difficulty traversing the legislature however it is integral for Employers and Human Resources to note the proposals in case a “watered down” version does pass into law. 

Changes to the BOOT 

The BOOT provides that an EA or EBA cannot leave a worker worst off than the applicable modern award.  However the proposed changes in practical terms provides an exception mainly around COVID-19 effected Employers.   The criteria includes: 

  • Considering the influence of COVID-19 on the Employer 
  • The considered views of the parties to the proposed EA 
  • The scope of employee support for the EA 
  • A union’s view if they apply to be covered by the EA 
  • Whether approval is in the public interest  

In practical terms, the changes look to give employers an ability to provide more innovative ways to benefit employees that are not monetary in an EA.  It also provides opportunities for COVID-19 effected employers some avenues to implement EA’s that have some benefit to employers as well as employees.  This may well see some negotiation around particular rates of pay in exchange for patterns of work or shifts which more suits the employer’s current needs in the current environment.  

Other changes from the Bill  

Other changes proposed are aimed at some of the other worrying aspects of EA and EBA implementation including: 

  1. The Fair Work Commission will have more ability to “block” union interference in EAs and EBAs where the union does not have any involvement (currently a mere coverage has seen the Fair Work Commission accept submissions and analysis by a union even when employees have not required their involvement)  
  2. Removing the requirement for an EA or EBA to be genuinely agreed with another test around the substance of the EA or EBA 
  3. Requiring the Fair Work Commission to determine applications within 21 days – greatly speeding up the process 
  4. Allowing new franchise employers to join an agreement without the need for a new employer to apply for one with only that franchisee’s employees required to vote for the agreement – Subway, Guzman Y Gomez, Coffee Club and 7-Eleven employers will greatly benefit from this change 
  5. 2 year limitation dates (a much shorter period) 
  6. Longer 8 year Greenfields Agreements (currently 4)  
  7. Importantly, employees cannot take protected industrial action during the 8 year period of a Greenfields Agreement  
  8. A definition of a casual employee on the basis that the employee is provided work with no firm advance commitment of continuing and indefinite work  
  9. Criminalising underpayment of wages as wage theft – adopting the position already implemented by some states most notably Queensland and Victoria  

This is the time for Human Resources to ensure their industrial relations and workplace relations processes, procedures and documents align legally.  In particular with one eye on the possibly myriad of changes coming.  NB Lawyers – Lawyers for Employers undertake and offer a Legal Business Alignment which includes all of the above.  Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.  . 

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Written By 

Jonathan Mamaril 


NB Lawyers – Lawyers for Employers 

[email protected] 

+61 (07) 3876 5111 

Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers. 

Also published at HR Daily – https://community.hrdaily.com.au/profiles/blogs/loosening-the-boot-straps-and-9-other-industrial-relations