Australian Workers Union v BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1018

Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Workers Union v BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1018 Hearing dates: 18 April, 2011 Decision date: 26 May 2011 Jurisdiction: Industrial Relations Commission Before: Connor C Decision: Application for recalculation of a component of the annualised salary for employees rejected Catchwords: ANNUALISED SALARY - steelworks - hot strip mill - referral of an industrial dispute - application for recalculation of a component of annualised salary - wage fixation principles - equity - question of estoppel - laches - application rejected Legislation Cited: Industrial Relations Act 1996 Federal Fair Work Act 2009 Federal Workplace Relations Amendment (Work Choices) Act 2005 Cases Cited: Erlanger v New Sombrero Phosphate Company (1878) 3 App Case 1218 Holy Family School Dismissal Case (1975) AR 991 Hot Strip Mill Work Value Case - [2008] NSWIRComm 1071 Irvine v Shell Company of Australia Limited (1969) AR 187 New South Wales v Commonwealth of Australia (2006) 156 IR 1 Category: Principal judgment Parties: Australian Workers Union (Applicant)

BlueScope Steel (AIS) Pty Limited (Respondent) Representation: Boris Baraldi Australian Workers Union

Ken Brotherson Duncan Cotterill Lawyers File Number(s): IRC 1226 of 2010

DECISION

PRELIMINARY 1Pursuant to the provisions of S.146B of the Industrial Relations Act 1996 , the Australian Workers Union has lodged a notification of an industrial dispute with BlueScope Steel (AIS) Pty Limited. The dispute concerns the calculations for public holidays for employees engaged by BlueScope Steel in the hot strip mill. The AWU argues that the calculations for public holidays for HSM employees on shifts (and on annualised salaries) is incorrectly calculated. 2The matter was allocated to me. I set it down for a conference on Wednesday, 10 November, 2011, Tuesday, 30 November, 2010 and Monday, 7 February, 2011. Conciliation failed to settle the matter. I programmed it for arbitration in a hearing on Monday, 18 April, 2011. All proceedings concerning this matter were convened in the Commission's premises at 90 Crown Street, Wollongong. In the hearing Mr Baraldi represented the AWU and Mr Brotherson represented BlueScope Steel. The matter proceeded on the written and oral submissions given by the parties. 3Whilst, of course, BlueScope Steel is a trading corporate within the meaning of S.51(xx) of the Commonwealth Constitution [ New South Wales v Commonwealth of Australia (2006) 156 IR 1], industrial disputes involving it in its Port Kembla steelworks operations have not been dealt with under the federal Workplace Relations Amendment (Work Choices) Act 2005 and the federal Fair Work Australia Act 2009 which has replaced it. The steelwork operations of BlueScope Steel have for some time been covered by a protocol by which industrial disputes are dealt with, initially by conciliation but ultimately, if necessary, by arbitration, by members of the State Commission. That protocol is now reinforced and facilitated by s.146B of the State IR Act (complimented by ss.738 and 740 of the FW Act).