The Smiths Snackfood Company Ltd

[2014] FWCA 6572

[2014] FWCA 6572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

The Smiths Snackfood Company Ltd
(AG2014/8593)

THE SMITH’S SNACKFOOD COMPANY LIMITED (WESTERN AUSTRALIA) ENTERPRISE AGREEMENT 2014-2017

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MCCARTHY	PERTH, 30 SEPTEMBER 2014

Application for variation of The Smith’s Snackfood Company Ltd (Western Australia) Enterprise Agreement 2014 - 2017.

[1] The Smiths Snackfood Company Ltd has made an application to vary The Smith’s Snackfood Company Ltd (Western Australia) Enterprise Agreement 2014 - 2017 (the Agreement) to remove an ambiguity or uncertainty.

[2] The grounds for the application are as follows:

“1. The Applicant commenced negotiations for the Smith’s Snackfood Company Ltd (Western Australia) Enterprise Agreement 2014-2017 (the enterprise agreement), with the Food Preservers Union of Western Australian Union of Workers (FPU) and bargaining representatives on 19 March 2014.

2. At the fourth negotiation meeting, which took place on 9 April 2014, the Respondent and the FPU agreed on the wage increase to be applied, namely 4% in year 1 (2014), 3% in year 2 (2015) and 3% in year 3 (2016).

3. This agreement was reflected in the enterprise agreement minutes, which were distributed to all employees …

4. This agreed wage increase was also contained in a summary of key changes to the agreement, which was also distributed to all employees …

5. The enterprise agreement was ultimately made on 28 April 2014 and in that agreement clause 15.1.1 states:

“The wage rates payable under this Agreement shall be effective from the first pay period commencing on or after the dates indicated below:

Level	10 May 2014 (4% increase)		10 May 2015 (3% increase)		10 May 2016 (3% increase)
Hourly	Weekly	Hourly	Weekly	Hourly	Weekly
8	$48.17	$1,830.57	$50.10	$1,903.79	$51.60	$1,960.90
7	$44.92	$1,706.87	$46.71	$1,775.14	$48.12	$1,828.40
6	$41.65	$1,582.78	$43.32	$1,646.09	$44.62	$1,695.47
5	$31.06	$1,180.46	$32.31	$1,227.68	$33.28	$1,264.51
4	$30.67	$1,165.44	$31.90	$1,212.06	$32.85	$1,248.42
3	$27.52	$1,045.70	$28.62	$1,087.53	$29.48	$1,120.15
2	$24.25	$921.61	$25.22	$958.47	$25.98	$987.22
1	$21.07	$800.68	$21.91	$832.70	$22.57	$857.68
0	$20.11	$764.32	$20.92	$794.89	$21.55	$818.74

6. The rates under the heading “10 May 2015” are described as being a 3% increase. However, the actual rates contained under the heading “10 May 2015” contain a 4% increase on 10 May 2014.

7. This creates uncertainty or ambiguity, in that the rates contained under the heading “10 May 2015” do not reflect the stated 3% increase.

8. Similarly, the rates contained under the heading “10 May 2016” reflect a 3% increase on the incorrect rates from 10 May 2015.

9. These rates also create uncertainty or ambiguity as they do not accurately reflect the correct rates, if the 4% increase on 10 May 2014, the 3% increase on 10 May 2015 and the 3% increase on 10 May 2016 were correctly worked out.

10. The uncertainty or ambiguity that is created is that the hourly and weekly rates of pay under the headings “10 May 2015” and “10 May 2016” do not accord with the stated percentage increases.

11. This uncertainty or ambiguity may be remedied by replacing the wage table contained in clause 15.1.1 with an amended wage table that correctly reflects a 3% increase on 10 May 2015, and a further 3% increase on those rates as at 10 May 2016 …”

[3] On 18 August 2014, I conducted a Conference with the Applicant and the Food Preservers Union of Western Australian Workers (FPU). The Conference was adjourned to allow the Applicant to provide further submissions in support of the application and for the FPU to advise whether they objected to the proposed variation.

[4] On 20 August 2014, the FPU confirmed that the agreement reached with the Applicant was on the basis of a 4% wage increase in the first year and a 3% increase in the second and third year. On this basis the FPU advised that they had no objection to the Agreement being amended to reflect the correct wage increases.

[5] On 20 August 2014, the Applicant provided further submissions in support of their application.

[6] On 26 August 2014, I sought the views of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers (NUW) in relation to the proposed variation to the Agreement. On 18 September 2014, both the AMWU and the NUW advised that they had no objections to the proposed variation.

[7] I am satisfied that there is an uncertainty because employees cannot be clear whether their correct rate of pay is to be calculated based on the agreed 4%, 3% and 3% increases to the rates of pay in existence at the time the Agreement was approved, or the rates of pay shown in the Agreement.

[8] Therefore, I allow the application. The Agreement is varied by amending the table in Clause 15.1.1 to read as follows:

Level	10 May 2014 (4% increase)		10 May 2015 (3% increase)		10 May 2016 (3% increase)
Hourly	Weekly	Hourly	Weekly	Hourly	Weekly
8	$48.17	$1,830.57	$49.62	$1,885.37	$51.10	$1,941.94
7	$44.92	$1,706.87	$46.27	$1,758.17	$47.66	$1,810.91
6	$41.65	$1,582.78	$42.90	$1,630.18	$44.19	$1,679.09
5	$31.06	$1,180.46	$31.99	$1,215.69	$32.95	$1,252.16
4	$30.67	$1,165.44	$31.59	$1,200.42	$32.54	$1,236.44
3	$27.52	$1,045.70	$28.35	$1,077.13	$29.20	$1,109.45
2	$24.25	$921.61	$24.98	$949.15	$25.73	$977.62
1	$21.07	$800.68	$21.70	$824.68	$22.35	$849.42
0	$20.11	$764.32	$20.71	$787.11	$21.33	$810.72

[9] The variation is approved and will come into force on 30 September 2014.

[10] A consolidated copy of the Agreement is attached to this decision.

DEPUTY PRESIDENT

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