The No Disadvantage Test: Failing Workers

Abstract

A decade since the introduction of enterprise bargaining in the federal jurisdiction provides a timely opportunity to critically review the evolution and operation of ‘the no disadvantage test’. The successor to the ‘public interest test’, the mechanism has remained fundamental to regulators' assurances that workers, on the whole, would be ‘no worse off’ under enterprise bargaining. This paper however, contends that the test has evolved to the point where it is a far weaker benchmark measure than originally conceived. Examining legislative changes over the last ten years and drawing on case law, the authors argue the no disadvantage test has frayed to the extent that it is unable to safeguard workers' interests under a decentralised wages system. The authors posit the no disadvantage test must be reconstructed if the original intent of the test is to be preserved, and pose a number of alternative strategies to reinstate a genuine and fail safe mechanism to protect workers' wages and conditions.