[1] Bluescope Steel Limited trading as Lysaght (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Lysaght Lyndhurst Workplace Agreement 2026 (the Agreement). The Australian Workers' Union (AWU) was a bargaining representative for the Agreement.

[2] The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the "Lysaght Lyndhurst Workplace Agreement 2022" which does not match the title of the Agreement to be approved. I am satisfied that these were minor procedural or technical errors and that the employees were not likely to have been disadvantaged by them. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard these errors.

[3] I raised a concern with the Agreement Disputes Procedure at Clause 7, as it appeared the requirement that a representative is "conveniently available" restricts an employee's ability to seek representation and may therefore not be consistent with s.186(6)(b) of the Act. The Employer provided an undertaking (Undertaking 1) which provides that in applying Clause 7 an employee may be represented by a person of their choosing, provided the chosen representative is available within a reasonable timeframe.

[4] I raised a concern with clause 12D relating to the deduction of monies on termination when an employee fails to give notice. This clause may be inconsistent with the National Employment Standards (NES) because it does not limit the source of monies which may be deducted, which permits the Employer to deduct employee's entitlements under the NES. The Employer provided an undertaking (Undertaking 3) addressing this issue.

[5] I raised a concern that Clause 27(d) relating to the Employer's ability to withhold pay for certain absences around public holidays may be inconsistent with the NES. The Employer provided an undertaking (Undertaking 6) that other than where a public holiday falls within a period of unpaid leave, the clause will be applied consistently with section 116 of the Act.

[6] I raised a Better Off Overall Test (BOOT) concern that Agreement does not appear to provide minimum engagement for parttime employees. In comparison clause 10.2 of the Manufacturing and Associated Industries and Occupations Award 2020 (the Award) provides a 4-hour minimum or 3 hours by agreement. The Employer provided provided an undertaking (Undertaking 2) to resolve this issue clarifying that parttime employees receive a minimum of four hours, unless a shorter minimum engagement of three hours is agreed between the parties.

[7] I raised a BOOT concern relating to Clause 15 of the Agreement which stipulates that the spread of hours for day workers will be any 12 hours in 24 hours to be agreed between management and the majority of employees at each site. This appears to be less beneficial than the Award which provides for a spread of hours for day workers between 6am to 6pm, which may only be varied by up to one hour at either end by agreement. The Employer provided an undertaking (Undertaking 5) to resolve this issue which in effect incorporates the Award provision into the Agreement.

[8] I raised a further BOOT concern that Agreement does not appear to provide any penalty rates for ordinary hours worked on Saturday, as opposed to overtime. The Employer provided provided an undertaking (Undertaking 4) to resolve this issue clarifying that where a day worker performs ordinary hours on a Saturday, those hours will be paid at the applicable Saturday rate of 150% of their base rate of pay.

[9] 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.

[10] 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.

[11] The AWU 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.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 April 2026. The nominal expiry date of the Agreement is 5 January 2029.

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