Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 1808

[2023] FWCA 1808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/1467)

BATA SHOE COMPANY OF AUSTRALIA - CFMMEU - MANUFACTURING DIVISION ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 21 JUNE 2023

Application for variation of the Bata Shoe Company of Australia - CFMMEU - Manufacturing Division Enterprise Agreement 2021

1. An application has been made for approval of a variation to the Bata Shoe Company of Australia - CFMMEU - Manufacturing Division Enterprise Agreement 2021 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) pursuant to section 210 of the Fair Work Act 2009 (the Act).

1. The application seeks to vary various clauses of the Agreement. The parties did not provide a signed copy of the specific variations. My chambers requested a signed copy of the specific variations. On 14 June 2023 the CFMEU provided me with a copy of a Notice of Meeting to be held prior to the vote. The notice confirmed the changes to the following clauses were made:

‘12.1 ADD "Wage Increases will be either 3%, or the national annual CPI from the preceding September CPI - whichever is greater"

12.2 REMOVE "If the company makes an estimated profit for any of the financial years ending in 2021, 2022 and 2023. The Employer shall increase the wage by a further 0.25% on the date of the next increase (noted above)"

12.4 REMOVE "All allowances provided for under this agreement will be increased at the same time and at the same percentage as the wage increase under this agreement as specified in clause 12.1. The allowance rates under this agreement will always be above or equal to the allowance rates."

12.5 ADD "The Factory bonus will be 24% of normal hours worked. This will replace the manual calculation of piece rates. To ensure no absence of doubt, the 24% will only be paid on normal attendance at work, and excludes sick days, RDO's, annual leave, public holidays or any other paid attendance that is not normal hours"
22.2 ADD "An Employee is entitled to 10 days paid family violence leave"

22.2 REMOVE "An Employee is entitled to up to 5 days paid and 5 days unpaid (Totaling 10 days) Family violence leave’

1. I am satisfied that the changes in the Notice of Meeting reflect the application and the Agreement as varied and signed, and that the employees were sufficiently made aware of the proposed variations to the Agreement for the access period. I am satisfied with the steps taken prior to the vote on 24 March 2023 and that the majority employees eligible to vote, voted in favour to approve the variation.

1. I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

1. The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 19 July 2021. Those undertakings form part of the Agreement as varied.

1. I note that there appeared to be a typographical error in clause 28.1(a) of the Agreement. It states that:

‘(a) Notwithstanding clause 46(c) of the Footwear - Manufacturing and Component -    Industries Award 1979, where employees are to be made redundant, the following severance payment shall apply:

Period of continuous service   Severance Pay
1 year or less   Nil
1 year and up to the completion of 2 years      4 weeks pay
1 years and up to the completion of 3 years   6 weeks pay
3 years and up to the completion of 4 years   7 weeks pay
4 years   8 weeks pay
Thereafter 3 weeks severance pay for each completed year of service’

1. I note that the line ‘1 years and up to the completion of 3 years’ should refer to 2 years instead of 1 years. I am of the opinion that a correction should be made to this clause pursuant to s.218A. I confirm that the CFMEU advised on 14 June 2023 that they agree this is a typographical error and they have no objection to this course of action. I therefore correct the clause to read as follows, ‘2 years and up to the completion of 3 years.’

1. The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

1. In accordance with s.216 of the Act, the variation operates from 21 June 2023.

COMMISSIONER

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