What's Going on with the ‘No Disadvantage Test’? An Analysis of Outcomes and Processes Under the Workplace Relations Act 1996 (CWLTH)

Abstract

This article examines the operation of the ‘no disadvantage test’ (NDT) as it applies to the approval or certification of certain forms of agreements under the Workplace Relations Act 1996 (Cwlth). The purpose is to make an assessment of the effectiveness of the test in meeting the supposed statutory intention that workers would not be made worse-off as a result of entering into agreements which derogated from award and other legally prescribed conditions of employment. The article reports on research which applied the NDT in detail to 36 agreements, and, more partially, to a further 48 agreements. The general conclusion arrived at, though heavily qualified, was that in certain defined respects, the NDT, as presently constructed and applied, is failing adequately to protect employees from a deterioration in their terms and conditions of employment.