ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal against decision of Commission that Coles had the ability to unilaterally decline to increase the base wage rate value it used in its Incentive Scheme calculations in line with the negotiated wage increases in the Coles Kewdale Distribution Centre WA Agreement 2014 – Commission held that Coles did not revise form and structure of the Scheme – clause 20.8.2 of Agreement permits the Commission to grant leave to appeal if matter of such importance that leave should be granted – leave to appeal granted given history of clause 10 of Agreement, Incentive Scheme and potential impact of the decision of Coles on the employees – Full Bench held that the words ‘form and structure’ in clause 10 have a plain and ordinary meaning – ‘form’ refers to shape or appearance of Scheme and ‘structure’ refers to constituent parts or inputs arranged together to compose the Scheme – determined that structure is comprised of two inputs, performance percentage and monetary value, both variable – no evidence that the monetary value input was anything other than the amount of an employee’s prevailing base wage – variable nature of performance measurement tools was an inherent feature of Scheme – held that Coles’ decision to change monetary value input from a variable amount to a permanently fixed amount amounted to a revision of the structure of the Scheme and therefore prior consultation with team members was required before change effected – not contested that consultation did not occur – Full Bench consider that Commission erroneously concluded that the decision announced by Coles on 4 May 2015 was not a revision to the form and structure of the Incentive Scheme contrary to clause 10 of Agreement – appeal upheld – decision at first instance quashed. Appeal by Hutchings against decision of Bull DP of 29 July 2016 [[2016] FWC 4050] Re: Coles Group Supply Chain P/L t/a Coles Kewdale Distribution Centre
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