BHP Steel (JLA) Pty Ltd - Springhill and CRM Works Employees Award 2001 [2001] NSWIRComm 178 - NSWIRComm 2001 case summary

Industrial Relations Commission (NSW)|2001-08-14|Before: Walton J

CITATION : BHP Steel (JLA) Pty Ltd - Springhill and CRM Works Employees Award 2001 [2001] NSWIRComm 178 APPLICANT: BHP Steel (JLA) Pty Limited

PARTIES : RESPONDENTS: Australian Workers' Union, New South Wales Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch Electrical Trades Union of Australia, New South Wales Branch FILE NUMBER: IRC 2612; 2614; 2624; 2648; 2650 and 5122 of 1999 and IRC 3505 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Award review - consolidation of awards - modernisation of awards - test case decisions - pay equity and discrimination LEGISLATION CITED : Industrial Relations Act 1996 s19 Re Equal Remuneration Principle (2000) 97 IR 177 CASES CITED : Practice Direction No.6 (2000) 307 NSWIG 510 State Wage Case 2001 [2001] NSWIRComm 119 HEARING DATES: 06/19/2001 DATE OF JUDGMENT: 08/14/2001

LEGAL REPRESENTATIVES: RESPONDENTS: Mr A Whiley Australian Workers' Union, New South Wales Electrical Trades Union of Australia, New South Wales Branch Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

BHP STEEL (JLA) PTY LTD - SPRINGHILL AND CRM WORKS EMPLOYEES AWARD 2001 Application by BHP Steel (JLA) Pty Ltd for a new award.

JOHN LYSAGHT (AUSTRALIA) LIMITED - PORT KEMBLA GENERAL AWARD. Notice of award review pursuant to s19 of the Industrial Relations Act 1996.

JOHN LYSAGHT (AUSTRALIA) LIMITED - PORT KEMBLA SLIT RECOIL LINE - RATES OF PAY AWARD. Notice of award review pursuant to s19 of Industrial Relations Act 1996.

JOHN LYSAGHT (AUSTRALIA) LIMITED - PORT KEMBLA - COIL TEMPER MILL - RATES OF PAY AWARD. Notice of award review pursuant to s19 of the Industrial Relations Act 1996.

BHP STEEL (JLA) PTY LTD - PORT KEMBLA - NO 3 PAINT LINE - RATES OF PAY AWARD. Notice of award Review pursuant to s19 of the Industrial Relations Act 1996.

BHP STEEL (JLA) PTY LTD - PORT KEMBLA - CPCM ROLL SHOP - RATES OF PAY AWARD. Notice of award review pursuant to s19 of the Industrial Relations Act 1996.

BHP STEEL (JLA) PTY LTD - PORT KEMBLA, LUMP SUM PAYMENTS SCHEME AWARD. Notice of award review pursuant to s19 of the Industrial Relations Act 1996.

REASONS FOR DECISION [2001] NSWIRComm 178

1 This matter concerns an application by BHP Steel (JLA) Pty Limited ("the company") for a new award entitled BHP Steel (JLA) Pty Ltd - Springhill and CRM Works Employees Award 2001 ("the award"). The applicant also seeks the recission of a number of awards which were the subject of award review notices issued by the Industrial Registrar pursuant to s19 of the Industrial Relations Act 1996 ("the Act"). Those awards are as follows:

· John Lysaght (Australia) Limited - Port Kembla General Award. · John Lysaght (Australia) Limited - Port Kembla - Coil Temper Mill - Rates Of Pay Award. · John Lysaght (Australia) Limited - Port Kembla Slit Recoil Line - Rates of Pay Award. · BHP Steel (JLA) Pty Ltd - Port Kembla - No 3 Paint Line - Rates Of Pay Award. · BHP Steel (JLA) Pty Ltd -Port Kembla - CPCM Roll Shop - Rates Of Pay Award. · BHP Steel (JLA) Pty Ltd - Port Kembla, Lump Sum Payments Scheme Award. 2 Broadly speaking, the proceedings concerned the establishment of a new award to govern the operations of the company. The award embodies, in all relevant respects, the terms of an award earlier made by the Commission known as BHP Steel (AIS) Pty Ltd - Port Kembla Steelworks Employees Award 2000: see BHP Steel (AIS) Pty Ltd - Port Kembla Restructured Electrical Graded Trades Classifications Rates of Pay Award and other matters [2000] NSWIRComm 192. Both the award and the BHP Steel (AIS) Pty Ltd - Port Kembla Steelworks Employees Award 2000 apply to employees engaged at the Port Kembla steelworks.

3 On 19 June 2001 the Commission gave an extempore decision in relation to the application and notices of award review as follows: In this matter the Commission has before it an application to establish a new award which is to be entitled the BHP Steel (JLA) Pty Limited - Springhill and CRM Works Employees Award 2001, together with a series of notices of award review issued pursuant to s 19 of the Act. In each case, those notices of award review relate to presently extant awards operating in relation to the subject company. The application today proceeds upon the basis of consent of the parties. That consent is expressed within the amended application which appears within Ex 1 in the proceedings. It should be noted that Ex 1 has been amended so as to delete the final sentence appearing in cl6.2 on p8 and by deleting the words and brackets "decision date" appearing in cl3.4 and inserting the numbers and word "19 June 2001". I have considered the rather helpful and detailed submissions put by Mr Lloyd today. I consider that it is appropriate that the award as proposed in its amended form be made by the Commission. In those circumstances, I make the award in terms of Ex 1, as amended. That award shall take effect on and from the first pay period beginning on or after 19 June 2001 and shall remain in force for a period of twelve months. I shall give detailed reasons for the making of that decision in due course. However, for present purposes I direct that an affidavit be filed in the proceedings within fourteen days in conformity with practice direction number 6. That affidavit will attend to the various matters put by Mr Lloyd today in relation to s23 of the Act and, in particular, will deal with the non-restructured components of the classifications within the award. I note that the award, so made, rescinds and replaces a number of awards which are described in cl3.1 of that award. Those awards correspond to the award review matters numbered 2612, 2614, 2624, 2648, 2650 and 5122 of 1999 in these joined proceedings. In the result the Commission orders the rescission of those awards, thereby rendering obsolete any further proceedings. The award review proceedings are thereby concluded upon the basis of this decision. As I have noted, in due course I shall give more extensive reasons in this matter. I direct that the applicant file within a fourteen day period a further copy of Ex 1 in the proceedings containing the amendments that have been identified earlier. I further direct that further copy of Ex 1, as amended, should be provided in an appropriate electronic form for the purposes of the gazettal of the award in due course. The floppy disk, so filed, should be accompanied by certification that the electronic record conforms with the terms of Ex 1, as amended. 4 I now provide my reasons for that decision.

5 Mr Lloyd, solicitor, who appeared for the company on 19 June 2001, made the following submissions in support of the application:

It was submitted that the award was in relevantly similar terms to the award made by the Commission as presently constituted in BHP Steel (AIS) Pty Ltd - Port Kembla Restructured Electrical Graded Trades Classifications Rates of Pay Award and other matters [2000] NSWIRComm 192. That award also concerned the operations of the Port Kembla steelworks.

The award represents a significant improvement in the existing pattern of industrial regulation of the company's operations.

The award consolidates the various general and splinter awards which applied to the company. Those awards were made under the Industrial Relations Act 1991. The award incorporates all the relevant provisions from those awards, although the terms have been comprehensively rewritten to modernise the language of the award and remove any unnecessary technicalities and obsolete provisions.

The award consolidates all of the industrial instruments relevant to the company (at both of the companies sites, that is the Springhill site and the smaller CRM site) into a single award. The award incorporates the conditions of employment established through decisions of this Commission and various unratified enterprise agreements reached between the relevant parties. Those agreements arose in consequence of restructuring processes undertaken by the parties over the last decade. The restructuring processes resulted in a broadening of the skills of employees, the creation of new career paths and greater flexibility in the classification systems and job models.

Part D of the award contains a list of positions that have not been restructured as yet. Those positions continue to be relevant to some employees who have not opted to take up one of the restructured positions. As employees leave the company over time that part of the award shall become redundant. For present purposes, Part D of the award establishes transitional arrangements which will operate until the restructured classifications are fully effective. 6. The award incorporates all relevant test case standards.

The company is not aware of the award operating in a discriminatory manner in any way. The company is vigilant in monitoring anti-discrimination matters in the workplace. The assessment of skills has been undertaken in a gender neutral manner. Further, the classification system in the award and other conditions of employment are not discriminatory and conform with equal remuneration principles.

6 Mr Whiley, who appeared for the Australian Workers' Union, New South Wales, the Electrical Trades Union of Australia, New South Wales Branch and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, concurred with the submissions of Mr Lloyd. 7 Pursuant to Practice Direction No.6 (2000) 307 NSWIG 510, the company filed an affidavit of Ms Tracey Freeman. Ms Freeman deposed that she was the Human Resources Manager of the Springhill works of the company. She also stated that the designation of work, skills and responsibilities in classifications found in the award was made in an absence of any assumptions based on gender. Further, she stated that both the descriptions of work and the classifications in the work in the award employed gender neutral language.

8 Ms Freeman deposed that the rates of work for each classification in the award had been assessed in accordance with the work value principles of the Commission and by having regard to classifications in the BHP Steel (AIS) Pty Ltd - Port Kembla Steelworks Employees Award 2000.

9 I consider that the contentions advanced by Mr Lloyd for the making of the award represent a cogent case for the making of the award.

10 It is desirable that the multifarious splinter awards which arose in this industry under the previous statutory scheme be removed and consolidated into a single award. Such an approach is consistent with the statutory purpose for the review of awards (see s19(2) of the Act) and has considerable industrial merit. Further, I consider that it is desirable that the rates of pay of employees presently regulated by disparate non-award agreements become the subject of regulation and ultimately rationalisation under the award.

11 Furthermore, the proposed award modernises the language of the award and removes obsolete provisions and unnecessary technicalities. It incorporates relevant test case provisions and contains dispute resolution procedures.

12 It is important for parties to proceedings for consent awards to be diligent in ensuring that the award conforms with the requirements of s23 of the Act and the principles enunciated by a Full Bench of the Commission in Re Equal Remuneration Principle (2000) 97 IR 177 ("the principles"). This obligation reposes upon the parties a requirement to properly interrogate the terms of the proposed award (and the assumptions underpinning those terms) so as to ensure satisfaction with that statutory provision and the principles. Applicants should be prepared, during the hearing of consent applications, to demonstrate that such considerations have been taken into account in developing the proposed award and to support such contentions by the filing of an affidavit as required under Practice Direction No.6.

13 I am satisfied, however, that the present application conforms with the requirements of the Act and the principles in relation to pay equity. The terms of the award do not raise any issue in relation to discrimination (having regard to the provisions of s19(2)(e) of the Act).

14 In these circumstances, I consider that the award meets the requirements of the Act for the making of awards. Further, I am satisfied that the award conforms with the wage fixation principles enunciated in the State Wage Case 2001 [2001] NSWIRComm 119.

15 I hereby confirm the making of the award by the Commission on 19 June 2001. That award shall be known as BHP Steel (JLA) Pty Ltd - Springhill and CRM Works Employees Award 2001 and shall have, as its terms, the provisions of Exhibit 1 in these proceedings as amended (I note that a document in such terms was filed on 20 June 2001). That award shall take effect on and from the first pay period to commence on or after 19 June 2001. It shall remain in force for a period of twelve months. I further confirm the award review proceedings in Matter No's IRC 2612, 2614, 2624, 2648, 2650 and 5122 of 1999 are concluded and the awards, the subject of those proceedings, rescinded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

BHP Steel (JLA) Pty Ltd - Springhill and CRM Works Employees Award 2001 [2001] NSWIRComm 178

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