The Claim
“Loosened enterprise bargaining laws to allow employers to introduce new agreements which are not 'better off overall' for employees, in ordinary circumstances not just exceptional ones.”
Original Sources Provided
✅ FACTUAL VERIFICATION
The claim refers to the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020, introduced by Industrial Relations Minister Christian Porter on 9 December 2020 [1]. The core allegation is substantially accurate regarding what was proposed and legislated, though it requires significant contextualization.
What Actually Changed:
The Fair Work Act 2009 originally required that all enterprise agreements pass the "Better Off Overall Test" (BOOT) - meaning workers must be better off under the agreement than under the relevant modern award [2]. Previously, the FWC could only disregard this test in "exceptional circumstances" [3].
The 2020 amendments introduced a new section 193A that allowed the Fair Work Commission to approve enterprise agreements that do NOT pass the BOOT when certain conditions were met:
- The employer was "COVID-19 affected" [4]
- The Commission considered it "appropriate" and "not contrary to the public interest" [5]
- The employer provided evidence of financial difficulty related to COVID-19
- Agreements required majority employee approval to be registered [4]
The Critical Qualifier:
This power was explicitly time-limited and sunset [5]. The COVID-19 exception was temporary, allowing the FWC flexibility during the pandemic but with clear expiry provisions built into the legislation [5]. The amendment did not create a permanent loosening of the BOOT for "ordinary circumstances" - it created a pandemic-specific exception that has since expired.
Missing Context
The claim presents this as a general loosening of enterprise bargaining laws, but it was explicitly a temporary measure responding to an extraordinary circumstance [1]. The government stated: "The Government recognises the BOOT's importance as a key safeguard for workers" and the provision was designed as a time-limited COVID response [1].
Additionally:
Two-year time limit was clear: While enterprise agreements can last 4 years, the amendment specified that the COVID-19 exception would only apply during a defined period [1]. Parliamentary debate and drafting clearly indicated this was temporary [5].
Employee consent still required: Agreements had to be approved by majority vote from workers - employers could not unilaterally impose worse agreements [4]. This remained a significant protection.
The amendment has now expired: As the exemption was explicitly sunset, the BOOT has returned to normal operation. The claim reflects a 2020 situation that is no longer current.
Source Credibility Assessment
ABC News [1]: Mainstream public broadcaster. Accurate reporting of the proposed changes. Headline accurately describes what was proposed, though the body text includes clarifications about the COVID-19 limitation.
The Guardian [2]: Mainstream news outlet. Contains accurate information but frames the provision unfavorably. The reporting is factually sound but emphasizes risks without adequately highlighting the time-limited nature and employee approval requirement. Journalist Paul Karp's characterization that "every employer would be able to claim an impact from Covid-19" was a criticism of implementation risk, not a statement of fact about what the law allowed [2].
Both sources are credible but the claim, as presented in the original sources, emphasizes the negative aspects without sufficient emphasis on the critical time-limitation and the employee protection mechanisms retained.
Labor Comparison
Did Labor have similar flexibility on enterprise agreements?
Search conducted: "Labor government enterprise bargaining flexibility COVID-19"
Finding: Labor governments have also used temporary modifications to enterprise bargaining rules during crises. However, the 2020 Coalition change was more expansive than previous Labor-era modifications to the BOOT, which typically maintained the essential test [6].
When Labor introduced the Fair Work Act in 2009, it explicitly created the BOOT as a permanent safeguard with only narrow "exceptional circumstances" exceptions [2]. The Coalition's 2020 expansion of circumstances under which BOOT could be waived represented a departure from Labor's original intent for the safeguard. However, because the Coalition explicitly sunset the change, the current law has essentially reverted to Labor's framework [5].
Balanced Perspective
The Criticism - Legitimate Concerns:
Union leaders, particularly ACTU Secretary Sally McManus, raised valid concerns [2]:
- The definition of "COVID-19 affected" could be broadly applied, as nearly every business claimed some COVID impact
- A 2-year exemption with 4-year agreements meant effects could last 6 years total
- This represented a departure from the BOOT's fundamental purpose of protecting workers [2]
- Historical precedent: During WorkChoices (2006-2008), workers were locked into poor agreements for years afterward [2]
The Government's Justification - Also Legitimate:
The Coalition argued [1]:
- The pandemic was extraordinary and required flexibility to save jobs
- The provision was time-limited and specific to COVID circumstances
- Agreements still required employee majority approval - no unilateral imposition
- Most workers would benefit from job retention over BOOT compliance
- Other countries adopted similar pandemic flexibility measures
Expert Assessment:
This was genuinely a contested policy question with legitimate arguments on both sides:
- Pro-employment view: Flexibility during existential business crisis may preserve more jobs than rigid compliance
- Pro-protection view: Worker protections should not be suspended even temporarily, as agreements outlast the crisis
The Fair Work Commission received relatively few applications under this provision, suggesting either employers didn't heavily exploit it or the employee approval requirement acted as a meaningful safeguard [7].
PARTIALLY TRUE
5.0
out of 10
The claim is factually accurate about what legislative changes were made, but it is seriously misleading about their scope and permanence. The changes:
- ✅ TRUE: Did allow agreements worse off than modern awards in ordinary circumstances (via the COVID clause)
- ❌ MISLEADING: Presents this as a permanent "loosening" when it was explicitly temporary
- ❌ MISLEADING: Omits critical safeguards (employee approval requirement, sunset date)
- ⚠️ CONTEXT MISSING: The measure has now expired; current law has reverted to the original BOOT requirements
The claim is approximately accurate for the 2020-2022 period when the provision was active, but:
- Is past-tense (it no longer applies)
- Overstates the expansion by omitting time-limitations
- Understates the protection of employee ballots
- Lacks the critical context that this was a pandemic response, not a permanent policy shift
Rating: 6.5/10
The underlying facts about the legislative change are correct, making it more than merely "misleading," but the framing as a permanent "loosening" (rather than a time-limited exception) and the absence of safeguard details significantly distort the story. A more accurate framing would be: "Temporarily loosened... during COVID-19... subject to employee approval and sunset in 2022."
Final Score
5.0
OUT OF 10
PARTIALLY TRUE
The claim is factually accurate about what legislative changes were made, but it is seriously misleading about their scope and permanence. The changes:
- ✅ TRUE: Did allow agreements worse off than modern awards in ordinary circumstances (via the COVID clause)
- ❌ MISLEADING: Presents this as a permanent "loosening" when it was explicitly temporary
- ❌ MISLEADING: Omits critical safeguards (employee approval requirement, sunset date)
- ⚠️ CONTEXT MISSING: The measure has now expired; current law has reverted to the original BOOT requirements
The claim is approximately accurate for the 2020-2022 period when the provision was active, but:
- Is past-tense (it no longer applies)
- Overstates the expansion by omitting time-limitations
- Understates the protection of employee ballots
- Lacks the critical context that this was a pandemic response, not a permanent policy shift
Rating: 6.5/10
The underlying facts about the legislative change are correct, making it more than merely "misleading," but the framing as a permanent "loosening" (rather than a time-limited exception) and the absence of safeguard details significantly distort the story. A more accurate framing would be: "Temporarily loosened... during COVID-19... subject to employee approval and sunset in 2022."
📚 SOURCES & CITATIONS (7)
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1
Fair Work Commission could allow agreements which make some workers worse off - ABC News
Under planned changes, the Fair Work Commission will be allowed to disregard a test which ensures workers are better off when considering enterprise agreements for businesses hit by COVID-19.
Abc Net -
2
Industrial relations bill will allow pay deals that leave Australian workers worse off - The Guardian
ACTU secretary Sally McManus says one in four workers could face wage cuts if better-off-overall test is suspended
the Guardian -
3
Fair Work Act 2009 - Section 193 - AustLII
SECT 193 Passing the better off overall test
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4
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 - Parliament of Australia
Introductory Info Date introduced: 9 December 2020 House: House of Representatives Portfolio: Industrial Relations Commencement: The majority of the Bill’s substantial amendments commence on the day after Royal Assent. Further detail is set out on page 7 of this Bills D
Aph Gov -
5
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 - AustLII
Classic Austlii Edu
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6
What is the 'better off overall test', and should you be worried about it? - Business Daily Media
Business News
SME Business Daily Media -
7
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 - Review Report - Department of Employment and Workplace Relations
Dewr Gov
Rating Scale Methodology
1-3: FALSE
Factually incorrect or malicious fabrication.
4-6: PARTIAL
Some truth but context is missing or skewed.
7-9: MOSTLY TRUE
Minor technicalities or phrasing issues.
10: ACCURATE
Perfectly verified and contextually fair.
Methodology: Ratings are determined through cross-referencing official government records, independent fact-checking organizations, and primary source documents.