BlueScope Steel Ltd

[2015] FWCA 4608

[2015] FWCA 4608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BlueScope Steel Ltd
(AG2015/3166)

BLUESCOPE STEEL WESTERN PORT ENTERPRISE AGREEMENT 2014-2017

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 8 JULY 2015

Application for approval of the BlueScope Steel Western Port Enterprise Agreement 2014-2017.

[1] An application has been made for approval of an enterprise agreement known as the BlueScope Steel Western Port Enterprise Agreement 2014-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by BlueScope Steel Ltd (BlueScope Steel). The agreement is a single-enterprise agreement.

Undertakings

[2] I identified a number of concerns with the Agreement in this matter and communicated those concerns to Mr James Wallington of BlueScope Steel. Subsequently undertakings were provided by BlueScope Steel following consultation with The Australian Workers’ Union (AWU). I make some comments below in relation to two of the undertakings.

[3] The Commission expressed a concern in relation to clause 30.8.1 which read as follows:

“30.8.1 If an employee becomes ill or injured whilst on annual leave such that they would otherwise be entitled to personal leave for greater than five days and this illness or injury is supported by appropriate evidence from a registered medical practitioner the employee may apply to have the relevant period substituted for accrued personal/carers leave and have their annual leave re-credited.”

[4] The concern of the Commission was that clause 30.8.1 is contrary to s.89(2) of the Act which provides as follows:

“89(2) If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid annual leave for the period of that other leave or absence.”

[5] The undertaking offered by the employer in this matter was that “in relation to clause 30.8.1 of the Agreement, the employer will only apply this clause in a manner which is consistent with the National Employment Standards in the Fair Work Act 2009”.

[6] The undertaking clearly satisfies the concerns of the Commission as the effect of the undertaking is as follows:

● where an employee is entitled to use personal carers leave during a period of approved annual leave the employee will on providing the required evidence to the employer, have an amount of annual leave which is equal to the period of personal carers leave re-credited to the employees annual leave accrual.
● the employee gets the benefit of the NES even when the period of personal/carer’s leave is less than 5 days as mentioned in clause 30.8.1.
● the employee will get their annual leave re-credited, regardless of whether the line manager/HR approves so long as the employee has produced the relevant evidence of the need for personal/carers leave.

[7] The Commission expressed a concern in relation to clause 34.4 of the Agreement which read as follows:

“34.4. An employee who has completed with the Company at least five years’ service, and whose services are terminated by the Company for any reason other than the employees serious and wilful misconduct, or by the employee on account of illness, incapacity or domestic or other pressing necessity, or be reason of the death of the employee, will be paid out their accrued long service leave entitlement.

[8] The concern of the Commission was that whilst clause 34.4 provided a real benefit to employees with between five and seven years of service it appeared to act as a significant detriment in relation to employees with seven or more years of service.

[9] The employer offered the following undertaking:

“In relation to clause 34.4 of the Agreement, the employer will comply with the requirements of the Long Service Leave Act 1992 (Vic)”.

[10] The concern addresses the concern of the Commission.

[11] Clause 34.4 will continue to operate in relation to employees with at least five years of service but with less than seven years of service. This must be so because the undertaking does not remove the benefit that clause 34.4 provides to these employees. The Commission cannot accept an undertaking which causes a financial detriment to any employee covered by the Agreement (s.190(3)(a) of the Act). The undertaking will ensure that employees who have completed at least seven years’ service receive the benefit of s.58 of the Long Service Leave Act 1992 (Vic) which is as follows:

“Entitlement to long service leave if employment stops after 7 years

(1)     This section only applies if an employee's employment is ended and the employee has completed at least 7, but less than 15, years of continuous employment with one employer.
 (2)     The employee is entitled to an amount of long service leave equal to 1/60th of the period of his or her continuous employment.”

[12] The undertakings in relation to clauses 13.3, 30.8.1 and 34.4 of the Agreement have become terms of the Agreement in accordance with s.191(1) of the Act and are appended at Appendix A.

[13] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[14] The AWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the organisation.

[15] The Agreement is approved and, in accordance with s.54(1), will operate from 15 July 2015.The nominal expiry date of the Agreement is 1 November 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code J, AE414690  PR569177>

APPENDIX A