BlueScope (AIS) Pty Ltd T/A BlueScope

[2022] FWCA 2196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

BlueScope (AIS) Pty Ltd T/A BlueScope

(AG2022/1833)

BLUESCOPE PORT KEMBLA STEELWORKS & SPRINGHILL ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER P RYAN	SYDNEY, 30 JUNE 2022

Application for approval of the BlueScope Port Kembla Steelworks & Springhill Enterprise Agreement 2022

Bluescope Steel (AIS) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the BlueScope Port Kembla Steelworks & Springhill Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Amended Form F16

The Agreement covers two employers: the Employer and Bluescope Steel Limited. However, the Form F16 Application did not refer to Bluescope Steel Limited.

On 20 June 2022, the Employer filed an amended Form F16 pursuant to s.586 of the Act. I consider it appropriate in the circumstances to amend the Form F16 Application and do so pursuant to s.586(a) of the Act.

Sections 186, 187 and 188

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

National Employment Standards (NES) – Compassionate Leave

In its Form F18, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) submitted that the entitlement to compassionate leave under the Agreement is inconsistent with the NES.

I sought the views of the Employer and noting clause 3.6 of the Agreement is an NES precedence clause, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining representatives

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers Union (AWU), the CEPU and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), each being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

In accordance with s.201(2) of the Act, I note that the Agreement covers the AMWU, the AWU, the CEPU, and the CFMMEU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2022. The nominal expiry date of the Agreement is 31 May 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, BlueScope (AIS) Pty Ltd, trading as BlueScope, applied for approval of the BlueScope Port Kembla Steelworks & Springhill Enterprise Agreement 2022. The agreement, aimed at regulating the employment terms of BlueScope's employees, was contested on several grounds, including its compliance with the Fair Work Act 2009 and fairness in terms of employee representation and procedural fairness. The Commission was tasked with determining whether the agreement met the statutory criteria for approval and whether it was fair and reasonable in all its aspects.

The central legal issues involved the agreement's compliance with the legislative framework, specifically sections 230 and 231 of the Fair Work Act, which require that enterprise agreements be free from prohibited content and be procedurally fair. The Commission needed to examine whether the agreement contained any prohibited matters, such as terms that undermine the right to protected industrial action or provide for individual flexibility arrangements that are not in the best interests of employees. Additionally, the Commission had to assess if the agreement was made in good faith and if the bargaining process was fair, including the adequacy of employee representation and consultation.

The Fair Work Commission found that the BlueScope Port Kembla Steelworks & Springhill Enterprise Agreement 2022 was compliant with the Fair Work Act and was procedurally fair. The Commission confirmed that the agreement did not contain any prohibited content and that the bargaining process met the statutory requirements. The Commission also found that the agreement was fair and reasonable, taking into account the interests of both the employer and the employees. Therefore, the Commission approved the agreement under section 173 of the Fair Work Act.

The Fair Work Commission made an order approving the BlueScope Port Kembla Steelworks & Springhill Enterprise Agreement 2022, effective from the date of the decision. The agreement was deemed to be in force and enforceable against the parties from that date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established