NCR Australia Pty Limited
[2011] FWA 4240
•5 JULY 2011
[2011] FWA 4240 |
|
DECISION |
Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement
NCR Australia Pty Limited
(AG2011/9887)
DEPUTY PRESIDENT SAMS | SYDNEY, 5 JULY 2011 |
Application for approval of a variation of an enterprise agreement – annual incentive plan – application approved.
[1] An application pursuant to s 210 of the Fair Work Act 2009 (‘the Act’) was filed on 6 June 2011 by NCR Australia Pty Ltd (the applicant). The application seeks to vary the NCR Australia Field Service Enterprise Agreement 2010 (‘the Agreement’) in respect to improving the NCR annual incentive plan. The proposed clause is as follows:
(a) Effective 1 January 2011, Employees covered by this Agreement will be eligible to participate in a Global Profit Sharing plan when NCR performs above its targeted performance goal in a given year. The Global Profit Sharing plan is a discretionary plan and pay outs under the plan are subject to the discretion of NCR’s CEO. Participation in the Global Profit Sharing plan is in lieu of the NCR Annual Incentive Plan.
(b) Employees covered by this Agreement as at 27 May 2011 will receive a one-time Base Salary adjustment equivalent to 5% of their base salary effective 1 January 2011, in exchange for participating in the NCR Annual Incentive Plan.
[2] The application was accompanied by a Form 23A - Employer’s Declaration in Support of the Approval of the Variation. In the accompanying declaration, Ms K Kucelj, Human Resources Consultant, outlined the negotiations with the Australian Municipal, Administrative, Clerical and Services Union known as the Australian Services Union (ASU) (‘the Union’) and employee representatives about the terms and effect of the proposed variation and the time, place and voting method for the ballot of employees seeking their approval of the variation. In a ballot of 69 employees, 67 voted to approve the variation which was also strongly supported by the Union, including by its filing of a Declaration in Support of the Variation (Form 23B).
[3] Fair Work Australia (FWA) listed the application for hearing on 24 June 2011. Ms Kucelj appeared for the applicant and Ms J Justo appeared for the Union. Ms Kucelj said that as a result of a global initiative of the Company – which was unknown to the parties late last year when they were negotiating the present Agreement – the Company now sought to ‘pass on a 5% additional salary increase based on a global profit sharing plan’. Ms Justo said that the Union’s National Delegates Group had no hesitation in supporting the variation sought and the employees had overwhelmingly voted to approve the proposal.
[4] Given the beneficial terms and effect of the proposed variation, no issue arises as to whether the variation meets the Better Off Overall Test (see s 211(5) of the Act). Having considered the submissions of the parties and being satisfied that all of the legislative requirements for approving a variation to the Agreement have been met, I shall approve the variation referred to at paragraph [1] above in accordance with s 211 of the Act. Pursuant to s 216 of the Act, the variation shall take effect from 24 June 2011, although I note that the variation has had practical effect since January 1 this year.
[5] Orders varying the Agreement will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
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