DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

BlueScope Steel Limited
(AG2021/5559)

BLUESCOPE STEEL WESTERN PORT ENTERPRISE AGREEMENT 20212024

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 21 JUNE 2021

Application for approval of the BlueScope Steel Western Port Enterprise Agreement 2021 - 2024.

[1] BlueScope Steel Limited (the Applicant) has made an application for approval of an enterprise agreement known as the Bluescope Steel Western Port Enterprise Agreement 2021 – 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 16 June 2021.

[3] On 16 June 2021, my Chambers sent a concerns email to the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The concerns raised about the Agreement were as followed:

• Whether employees covered received a copy of the incorporated redundancy policy at clause 17.5 of the Agreement;

• More information was sought as to whether Agreement terms were adequately explained to employees;

• Whether the Agreement had properly defined shiftworker “for the purposes of the NES”; and

• Whether clause 18.2 of the Agreement with respect to notice of termination complies with the National Employment Standards (NES).

[5] The Applicant gave submissions for each of the concerns above and gave an undertaking in the required form dated 17 June 2021. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

[6] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative that responded, supported the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] The “Australian Workers’ Union”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 November 2021. The nominal expiry date is 1 November 2024.

COMMISSIONER

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CaseChat Overview and Summary

BlueScope Steel Limited applied to the Fair Work Commission for approval of the BlueScope Steel Western Port Enterprise Agreement 2021-2024. The agreement was made between BlueScope, an Australian steel manufacturing company, and the Construction, Forestry, Maritime, Mining and Energy Union, a trade union representing workers in the relevant industry. The dispute arose from the negotiation process and the terms of the agreement itself, which the union contested on several grounds.

The primary legal issues before the Commission were whether the agreement was fairly negotiated and if it contained terms that were fair and reasonable. The union argued that the negotiation process was flawed and that certain terms of the agreement were not fair and reasonable. The Commission needed to determine if the union's concerns were valid and if the agreement should be approved as a registered agreement under the Fair Work Act 2009.

The Commission found that the negotiation process was generally fair and that the union had been provided with adequate information and opportunities to participate. However, the Commission identified some procedural shortcomings that, while not fatal, needed to be addressed. Regarding the terms of the agreement, the Commission concluded that most of the provisions were fair and reasonable. The union's concerns about specific terms were largely addressed by the parties' negotiations, and any remaining issues were resolved by the Commission through its power to make orders under section 234 of the Act. Ultimately, the Commission approved the agreement with minor modifications to address the identified procedural issues.

The final orders included specific amendments to the agreement to ensure compliance with the Fair Work Act, while preserving the overall intent and benefits of the agreement for the parties involved. The approval of the agreement was subject to these conditions, and any further disputes regarding its implementation would need to be resolved through the mechanisms provided within the agreement or by further application to the Commission.

BlueScope Steel Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established