Industrial Relations Commission of New South Wales CITATION : Clerical and Administrative Employees (BHP Steel (AWI) Pty Ltd - Newcastle Wiremill) Award & other matters [2000] NSWIRComm 191 RESPONDENTS: Federated Clerks' Union of Australia, New South Wales Branch BHP Steel (AIS) Pty Ltd (trading as BHP Steel Flat Products) - Port Kembla PARTIES : BHP Steel (JLA) Pty Ltd (trading as BHP Coated Steel Australia) - Port Kembla The Broken Hill Proprietary Company Limited (trading as BHP Steel Long Products) - Newcastle BHP Steel (AWI) Pty Ltd (trading as BHP Wire and BHP Ropes) - Newcastle Tubemakers of Australia Limited (trading as BHP Steel Structural and Pipeline Products) - Newcastle FILE NUMBER: IRC5286; 5028; 5029; 5036; 5292; 6688 of 1999 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 Principles for Award Review - State Decision 1998 (1998) 85 IR 38 CASES CITED : State Personal/Carers' Leave Case - August 1996 (1996) 68 IR 308 State Personal/Carers' Leave Case 1998 (1998) 84 IR at 416 State Wage Case 1999 (NSW) (1999) 88 IR 363 HEARING DATES: 06/02/2000; 07/17/2000 EXTEMPORE JUDGMENT DATE : 07/17/2000 RESPONDENTS: Ms F Hancock LEGAL REPRESENTATIVES: Federated Clerks' Union of Australia, New South Wales Branch Mr D Lloyd for the companies Blake Dawson Waldron Lawyers JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, VICE-PRESIDENT 17 JULY 2000 MATTER NO. IRC 5286 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BHP STEEL (AWI) PTY LTD - NEWCASTLE WIREMILL) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 5028 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (TUBEMAKERS OF AUSTRALIA LIMITED NEWCASTLE) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 5029 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BHP STEEL (JLA) PTY LTD - PORT KEMBLA) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 5036 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BHP STEEL (AIS) PTY LTD) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 5292 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BHP SYTEEL (AWI) PTY LTD - NEWCASTLE ROPERY) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 6688 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BROKEN HILL PROPRIETARY COMPANY LIMITED) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. DECISION (Extempore) [2000] NSWIRComm 191 1 This matter concerns a group of awards which have been made subject to notices of award review, issued by the Industrial Registrar, pursuant to s 19 of the Industrial Relations Act 1996 (the Act). 2 The awards, the subject of the notices of review are: a) the Clerical and Administrative Employees (BHP Steel (JLA) Pty Ltd - Port Kembla) Award last published in a consolidated form on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 553); b) the Clerical and Administrative Employees (BHP Steel (AIS) Pty Ltd) Award, last published in consolidated form on 4 September 1998, (New South Wales Industrial Gazette, vol 306, at p 452); c) the Clerical and Administrative Employees (BHP Steel (AWI) Pty Ltd - Newcastle Ropery) Award, last published in a consolidated form on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 397); d) the Clerical and Administrative Employees (BHP Steel (AWI) Pty Ltd - Newcastle Wiremill) Award, last published in a consolidated form on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 424); e) the Clerical and Administrative Employees (Broken Hill Proprietary Company Limited) Award, last published in consolidated form on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 369); f) the Clerical and Administrative Employees (Tubemakers of Australia Limited Newcastle) Award, last published on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 479), ("the awards"). 3 The awards regulate the terms and conditions of employment for clerical and administrative employees engaged by the following BHP Steel Companies at a number of locations: (a) BHP Steel (AIS) Pty Ltd (trading as BHP Steel Flat Products) - Port Kembla; (b) BHP Steel (JLA) Pty Ltd (trading as BHP Coated Steel Australia) - Port Kembla; (c) the Broken Hill Proprietary Company Limited (trading as BHP Steel Long Products) - Newcastle; (d) BHP Steel (AWI) Pty Ltd (trading as BHP Wire and BHP Ropes) - Newcastle; (e) Tubemakers of Australia Limited (trading as BHP Steel Structural and Pipeline Products) - Newcastle, ("the companies"). 4 The awards were made by Hungerford J on 29 October 1997 arising out of applications brought by the Federated Clerks' Union of Australia, New South Wales Branch. 5 The awards are in similar terms and have a historical relationship to the Clerical and Administrative Employees (State) Consolidated Award, with appropriate differences having regard to the interests of the companies and their employees. 6 The awards have been maintained over a long period of time as distinct awards, notwithstanding the existence of other awards applying to the operations of the companies at Port Kembla and Newcastle. 7 The Commission raised with the parties to these proceedings whether it would be appropriate, having regard to the provisions of s19 of the Act, to consolidate the awards so as to provide a common award for clerical and administrative employees of the companies. The parties opposed this course. 8 Having regard to the history which I have outlined and the submissions of the parties in opposition to that approach, I consider that it is appropriate, at this time, to retain the awards as separate awards regulating the industrial and employment affairs of the subject employees. 9 Initially the parties to the proceedings submitted that the awards made by Hungerford J in 1997, as subsequently varied, did not require further alteration having regard to the requirements of s19 of the Act and the decision of the Full Bench in Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 ("the Principles"). 10 However, on 2 June 2000 the Commission raised a number of matters with the parties concerning the form of the awards. In consequence, the parties have now agreed that certain clauses of the awards should be altered having regard to the Principles and s19 of the Act. By using the Clerical and Administrative Employees (BHP Steel (AIS) Pty Ltd) Award as an exemplar, it was submitted by both parties that clauses 1 and 7 of that award, should be varied having regard to the operation of principle 17 of the Principles. 11 In relation to cl 1 it was submitted that the clause should be deleted in its entirety. As to cl 7 it was submitted that the clause should be varied by deleting the last sentence appearing within that clause. Otherwise, the parties submitted that having regard to the operation of s19 of the Act, and the Principles, the awards should not be varied. 12 I agree with those submissions and in the result will endorse the awards as having been reviewed under s19 of the Act and requiring changes only with respect to clauses 1 and 7 of the exemplar award (and equivalent clauses in the remaining awards) pursuant to s19(6) of the Act. 13 In reaching that conclusion, I have had regard to the following submissions put by the parties: a) The awards do not require any variation so as to modernise the awards under principles 1-11 of the Principles and s19(3) and (4) of the Act. b) The awards reflect test case decisions of the Commission as relevantly identified in principle 14 of the Principles (at 74). I note in this respect that I raised with the parties the operation of the State Personal/Carers' Leave Case-August 1996 (1996) 68 IR 308 and State Personal/Carers' Leave Case 1998 (1998) 84 IR at 416. It was submitted that, by the operation of those decisions, the existing provisions of the awards do not require variation. In particular, it was submitted that order 3 made in the 1998 decision was not applicable to the awards because it only applied "with respect to awards which provide the personal/carers' leave standard clause". The awards do not contain that standard clause because of a previous exemption arising from the operation of order 3 (b) of the 1996 decision. c) The awards contain dispute resolution procedures. d) The awards contain the anti-discrimination provision arising from the State Wage Case 1999. e) The awards provide for casual and part-time employment. The awards do not contain any unjustified impediment to part-time work, casual work or job sharing. f) As to cl 9 and 28 of the exemplar award it was submitted by the parties that no change was required to the existing award provisions. I note that cl 9 concerns various transitional arrangements. It was submitted by the parties that the deletion of the subject provision would deprive existing employees of the benefits arising under the award and it is therefore desirable that that provision should be retained. 14 I consider that those submissions are well made and I accept them for the purposes of this review of the awards. The remaining consideration is s19(3)(e) of the Act and principle 16A of the Principles. In this respect the companies submitted: (1) In respect of employees covered by the awards there exists no present claim that the wage rates or other conditions of employment on the basis that the work, skill and responsibility required or the conditions under which the work is performed have been undervalued on a gender basis. In addition, BHP Steel is not aware of any circumstances at present that could result in such a claim. (2) In respect of employees covered by the award, the assessments of the work, skill and responsibility , including the conditions under which the work is performed, in determining wage rates and other conditions of employment have been approached on a general neutral basis and in the absence of assumptions based on gender. (3) The awards are in relevantly similar terms and have a historic relationship to the Clerical and Administrative Employees (State) Award. 15 There is nothing on the face of the awards which would indicate the need for the Commission to intervene in relation to the awards having regard to the operation of s19(3)(e). Nor is there anything which would indicate, that the Commission should, on the information presently before it, take any steps in relation to the awards having regard to the decision of this Commission in re Equal Remuneration Principle (unreported, Wright J President, Hungerford J, Schmidt J, Sams D.P. and McKenna C, Matter No. IRC 1841 of 1999, 30 June 2000). 16 The Commission notes that a review has been conducted by it pursuant to s19 of the Act. It further notes that it has taken into consideration those matters raised under s19 and particularly having those matters referred to under s19(3) of the Act and the common position adopted by the parties in their submissions in relation to that review. The Commission is satisfied, having regard to that review, that no changes are presently required to the subject awards (other than those earlier identified in this decision). The Commission makes orders varying the awards consistently with the changes earlier discussed in relation to cl1 and 7 of the exemplar award pursuant to s19(6) of the Act. 17 The companies are directed to prepare draft orders giving effect to those orders.- 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, VICE-PRESIDENT 17 JULY 2000 MATTER NO. IRC 5286 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BHP STEEL (AWI) PTY LTD - NEWCASTLE WIREMILL) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 5028 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (TUBEMAKERS OF AUSTRALIA LIMITED NEWCASTLE) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 5029 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BHP STEEL (JLA) PTY LTD - PORT KEMBLA) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 5036 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BHP STEEL (AIS) PTY LTD) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 5292 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BHP SYTEEL (AWI) PTY LTD - NEWCASTLE ROPERY) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. MATTER NO. IRC 6688 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (BROKEN HILL PROPRIETARY COMPANY LIMITED) AWARD NOTICE OF AWARD REVIEW PURSUANT TO SECTION 19 OF THE INDUSTRIAL RELATIONS ACT 1996. DECISION (Extempore) [2000] NSWIRComm 191 1 This matter concerns a group of awards which have been made subject to notices of award review, issued by the Industrial Registrar, pursuant to s 19 of the Industrial Relations Act 1996 (the Act). 2 The awards, the subject of the notices of review are: a) the Clerical and Administrative Employees (BHP Steel (JLA) Pty Ltd - Port Kembla) Award last published in a consolidated form on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 553); b) the Clerical and Administrative Employees (BHP Steel (AIS) Pty Ltd) Award, last published in consolidated form on 4 September 1998, (New South Wales Industrial Gazette, vol 306, at p 452); c) the Clerical and Administrative Employees (BHP Steel (AWI) Pty Ltd - Newcastle Ropery) Award, last published in a consolidated form on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 397); d) the Clerical and Administrative Employees (BHP Steel (AWI) Pty Ltd - Newcastle Wiremill) Award, last published in a consolidated form on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 424); e) the Clerical and Administrative Employees (Broken Hill Proprietary Company Limited) Award, last published in consolidated form on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 369); f) the Clerical and Administrative Employees (Tubemakers of Australia Limited Newcastle) Award, last published on 4 September 1998 (New South Wales Industrial Gazette, vol 306, at p 479), ("the awards"). 3 The awards regulate the terms and conditions of employment for clerical and administrative employees engaged by the following BHP Steel Companies at a number of locations: (a) BHP Steel (AIS) Pty Ltd (trading as BHP Steel Flat Products) - Port Kembla; (b) BHP Steel (JLA) Pty Ltd (trading as BHP Coated Steel Australia) - Port Kembla; (c) the Broken Hill Proprietary Company Limited (trading as BHP Steel Long Products) - Newcastle; (d) BHP Steel (AWI) Pty Ltd (trading as BHP Wire and BHP Ropes) - Newcastle; (e) Tubemakers of Australia Limited (trading as BHP Steel Structural and Pipeline Products) - Newcastle, ("the companies"). 4 The awards were made by Hungerford J on 29 October 1997 arising out of applications brought by the Federated Clerks' Union of Australia, New South Wales Branch. 5 The awards are in similar terms and have a historical relationship to the Clerical and Administrative Employees (State) Consolidated Award, with appropriate differences having regard to the interests of the companies and their employees. 6 The awards have been maintained over a long period of time as distinct awards, notwithstanding the existence of other awards applying to the operations of the companies at Port Kembla and Newcastle. 7 The Commission raised with the parties to these proceedings whether it would be appropriate, having regard to the provisions of s19 of the Act, to consolidate the awards so as to provide a common award for clerical and administrative employees of the companies. The parties opposed this course. 8 Having regard to the history which I have outlined and the submissions of the parties in opposition to that approach, I consider that it is appropriate, at this time, to retain the awards as separate awards regulating the industrial and employment affairs of the subject employees. 9 Initially the parties to the proceedings submitted that the awards made by Hungerford J in 1997, as subsequently varied, did not require further alteration having regard to the requirements of s19 of the Act and the decision of the Full Bench in Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 ("the Principles"). 10 However, on 2 June 2000 the Commission raised a number of matters with the parties concerning the form of the awards. In consequence, the parties have now agreed that certain clauses of the awards should be altered having regard to the Principles and s19 of the Act. By using the Clerical and Administrative Employees (BHP Steel (AIS) Pty Ltd) Award as an exemplar, it was submitted by both parties that clauses 1 and 7 of that award, should be varied having regard to the operation of principle 17 of the Principles. 11 In relation to cl 1 it was submitted that the clause should be deleted in its entirety. As to cl 7 it was submitted that the clause should be varied by deleting the last sentence appearing within that clause. Otherwise, the parties submitted that having regard to the operation of s19 of the Act, and the Principles, the awards should not be varied. 12 I agree with those submissions and in the result will endorse the awards as having been reviewed under s19 of the Act and requiring changes only with respect to clauses 1 and 7 of the exemplar award (and equivalent clauses in the remaining awards) pursuant to s19(6) of the Act. 13 In reaching that conclusion, I have had regard to the following submissions put by the parties: a) The awards do not require any variation so as to modernise the awards under principles 1-11 of the Principles and s19(3) and (4) of the Act. b) The awards reflect test case decisions of the Commission as relevantly identified in principle 14 of the Principles (at 74). I note in this respect that I raised with the parties the operation of the State Personal/Carers' Leave Case-August 1996 (1996) 68 IR 308 and State Personal/Carers' Leave Case 1998 (1998) 84 IR at 416. It was submitted that, by the operation of those decisions, the existing provisions of the awards do not require variation. In particular, it was submitted that order 3 made in the 1998 decision was not applicable to the awards because it only applied "with respect to awards which provide the personal/carers' leave standard clause". The awards do not contain that standard clause because of a previous exemption arising from the operation of order 3 (b) of the 1996 decision. c) The awards contain dispute resolution procedures. d) The awards contain the anti-discrimination provision arising from the State Wage Case 1999. e) The awards provide for casual and part-time employment. The awards do not contain any unjustified impediment to part-time work, casual work or job sharing. f) As to cl 9 and 28 of the exemplar award it was submitted by the parties that no change was required to the existing award provisions. I note that cl 9 concerns various transitional arrangements. It was submitted by the parties that the deletion of the subject provision would deprive existing employees of the benefits arising under the award and it is therefore desirable that that provision should be retained. 14 I consider that those submissions are well made and I accept them for the purposes of this review of the awards. The remaining consideration is s19(3)(e) of the Act and principle 16A of the Principles. In this respect the companies submitted: (1) In respect of employees covered by the awards there exists no present claim that the wage rates or other conditions of employment on the basis that the work, skill and responsibility required or the conditions under which the work is performed have been undervalued on a gender basis. In addition, BHP Steel is not aware of any circumstances at present that could result in such a claim. (2) In respect of employees covered by the award, the assessments of the work, skill and responsibility , including the conditions under which the work is performed, in determining wage rates and other conditions of employment have been approached on a general neutral basis and in the absence of assumptions based on gender. (3) The awards are in relevantly similar terms and have a historic relationship to the Clerical and Administrative Employees (State) Award. 15 There is nothing on the face of the awards which would indicate the need for the Commission to intervene in relation to the awards having regard to the operation of s19(3)(e). Nor is there anything which would indicate, that the Commission should, on the information presently before it, take any steps in relation to the awards having regard to the decision of this Commission in re Equal Remuneration Principle (unreported, Wright J President, Hungerford J, Schmidt J, Sams D.P. and McKenna C, Matter No. IRC 1841 of 1999, 30 June 2000). 16 The Commission notes that a review has been conducted by it pursuant to s19 of the Act. It further notes that it has taken into consideration those matters raised under s19 and particularly having those matters referred to under s19(3) of the Act and the common position adopted by the parties in their submissions in relation to that review. The Commission is satisfied, having regard to that review, that no changes are presently required to the subject awards (other than those earlier identified in this decision). The Commission makes orders varying the awards consistently with the changes earlier discussed in relation to cl1 and 7 of the exemplar award pursuant to s19(6) of the Act. 17 The companies are directed to prepare draft orders giving effect to those orders. 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.