Steel Mains Pty Ltd

[2019] FWCA 6766

[2019] FWCA 6766

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Steel Mains Pty Ltd

(AG2019/3190)

Steel Mains Pty Ltd, Somerton Steel Pipe Operation, Enterprise Agreement 2019 - 2023

Manufacturing and associated industries
Commissioner Lee	MELBOURNE, 4 OCTOBER 2019

Application for approval of the Steel Mains Pty Ltd, Somerton Steel Pipe Operation, Enterprise Agreement 2019-2023.

1. An application has been made for approval of an enterprise agreement known as the Steel Mains Pty Ltd, Somerton Steel Pipe Operation, Enterprise Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Steel Mains Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met

1. On 21 August 2019 the Applicant wrote to the Commission requesting that the rates of pay be redacted from the Agreement should the Agreement be approved. In addition to this correspondence, the Applicant provided a ‘Schedule of Undertaking’ (the Schedule) which included the rates of pay “for evidence of our agreement.” The Schedule provides rates of pay for the purposes of ‘clause 35 – Renumeration’ of the Agreement. The version of the Agreement lodged with the Commission does not include rates of pay. The Applicant requested that if the Commission is minded to include the rates of pay in the Agreement, that the rates of pay be redacted on the Agreement that is published to the Commission’s website which is publicly available, for reasons pertaining to commercial sensitivity.

1. Subsequently, the matter was listed for Hearing 13 September 2019.

1. Clause 35 of the Agreement provides annual percentage increases to the rates of pay. I also note that the Manufacturing and Associated Industries Award 2010 is incorporated. As the Award is incorporated and the 3% increase is applied to the test time rates of pay, I do not have a concern with respect to the Better Off Overall Test (BOOT). At the hearing, I advised the parties that I cannot accept an undertaking in relation to the BOOT if I do not have a concern in relation to this.

1. As the rates of pay are not in the Agreement, and I am unable to accept the Schedule, there is nothing to redact upon publication.

1. However, it was clear that employees were advised prior to voting to approve the Agreement, that they will receive rates of pay consistent with the Schedule. Therefore, I have a concern with respect to genuine agreement which can be remedied by way of undertaking.

1. The undertaking provided by the Applicant at Annexure A of this decision clearly incorporates by reference, the ‘Steel Mains Pty Ltd – Shopfloor rates of pay’ document and is therefore an enforceable term of the Agreement. This has satisfied my concerns with respect to genuine agreement. 

1. I advised the parties at the Hearing that the document titled ‘Steel Mains Pty Ltd – Shopfloor rates of pay’ would be publicly available on the Commission’s file should anyone, such as an employee, request access to it.

1. 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) I note that the Agreement covers the organisation.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 18.2 – Personal Leave

·           Clause 18.4 – Personal Leave

However, noting clause 8.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 October 2019. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A