Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union [2019] FCAFC 84

FEDERAL COURT OF AUSTRALIA

Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union [2019] FCAFC 84 Appeal from: Australian Workers' Union v BlueScope Steel (AIS) Pty Ltd [2018] FCA 80; 278 IR 170

File number: NSD 542 of 2018

Judges: ALLSOP cJ, COLLIER AND RANGIAH JJ

Date of judgment: 24 May 2019

Catchwords: INDUSTRIAL LAW – appeal – whether failure to comply with s 50 of the Fair Work Act 2009 (Cth) and Item 15 of Sch 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) – employees paid annualised or aggregate salary – industrial awards and agreements – obligation to work additional hours and public holidays under annualised or aggregate salary – construction of superannuation clauses in industrial instruments – whether obligation to make superannuation contributions for overtime or additional hours and public holiday penalty rates – whether earnings for additional hours were "earnings in respect of ordinary hours of work" – whether earnings for public holidays were "earnings in respect of ordinary hours of work" – whether employee co-contributions should be taken into account in complying with obligation to make superannuation contributions – Commissioner of Taxation granted leave to intervene SUPERANNUATION – history and purpose of superannuation regime – whether the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth) impose a binding legal obligation to pay superannuation – proper construction of s 6(1) of the Superannuation Guarantee (Administration) Act 1992 (Cth) – construction of "earnings in respect of ordinary hours of work" – appeal allowed