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

31 Pages Posted: 31 Dec 2005  

Richard Mitchell

Monash University - Department of Business Law & Taxation

Rebecca Campbell

University of Melbourne - Melbourne Law School

Andrew Barnes

University of Melbourne - Melbourne Law School

Emma Bicknell

University of Melbourne - Melbourne Law School

Kate Creighton

University of Melbourne - Melbourne Law School

Joel Fetter

Minter Ellison; University of Melbourne - Melbourne Law School

Samantha Korman

University of Melbourne - Melbourne Law School

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.

Suggested Citation

Mitchell, Richard and Campbell, Rebecca and Barnes, Andrew and Bicknell, Emma and Creighton, Kate and Fetter, Joel and Korman, Samantha, What's Going on with the 'No Disadvantage Test'? An Analysis of Outcomes and Processes under the Workplace Relations Act 1996 (CWLTH) . Journal of Industrial Relations, Vol. 47, No. 4, pp. 393-423, December 2005. Available at SSRN: https://ssrn.com/abstract=858227 or http://dx.doi.org/10.1111/j.1472-9296.2005.00182.x

Richard James Mitchell (Contact Author)

Monash University - Department of Business Law & Taxation ( email )

Caulfield Campus
Sir John Monash Drive
Caulfield East, Victoria 3084
Australia

Rebecca Campbell

University of Melbourne - Melbourne Law School

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Andrew Barnes

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Emma Bicknell

University of Melbourne - Melbourne Law School

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Kate Creighton

University of Melbourne - Melbourne Law School

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Joel Fetter

Minter Ellison ( email )

P.O. Box 3798
Auckland DX CP24061
New Zealand

University of Melbourne - Melbourne Law School

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Samantha Korman

University of Melbourne - Melbourne Law School

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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