ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application made by AMU under dispute resolution procedure of BlueScope Steel Port Kembla Steelworks Agreement 2015 (Agreement) – dispute arose from planned closure by BlueScope of the Unanderra Coil Processing Department (UCPD) of Port Kembla Steelworks and the establishment of new coil processing business within the Hot Coil Processing and Despatch Department (HCPD) – on 12 May 2016, AWU wrote to BlueScope contending that the coil processing work being performed by the UCPD employees would continue to be performed in the new business, that the proposed change was a ‘significant change’ as defined in clause 35.2.2 of the Agreement, that employees required for the new business had to be sourced from the UCPD, that UCPD employees did not have to apply for positions in the new business, and that employees transferring to the business were entitled to rate retention under clause 11.1.1 of Agreement – BlueScope replied on 19 May 2016 – its position was that ‘the closure of UCP is the outcome of a significant capital investment and as such was not significant change for the purposes of clause 35.2.3’ – in respect of the retention of rate issue letter indicated that UCPD employees could apply for roles in the new business prior to the closure of UCPD ‘at the new business’s remuneration rate – no retention applies’, but that rate retention would apply to any employee declared surplus who was redeployed to another part of the Steelworks – BlueScope confirmed position in a presentation to employees on same day – presentation also identified the rates of pay which BlueScope proposed to pay to employees in the new business – AWU submitted that to attract the operation of clause 11.1.1 was a causal link between the appointment of an employee to a classification receiving a lower rate of pay and one of three situations identified in the clause, namely rationalisation of the Company’s operations or the introduction of technological change or changes in work practices – submitted that single condition was satisfied, in that the invitation for expressions of interest for positions in new business was consequence of decision to establish new business using new technology and to close UCPD – BlueScope submitted that clause 11.1.1 was only applicable to employees affected by workplace change who had been made surplus in accordance with clause 34.3 and who were subject to the transition process provided for in clause 34.3.5 – Commission considered whether clause 11.1.1 properly interpreted, required a precondition for employee that had been declared surplus and has been subject to a transition period under clause 34.3.5 – Commission also considered whether the causal link required by clause 11.1.1 existed on facts of case (noting that BlueScope did not contend that establishment of the new business and closure of the UCPD would not constitute ‘the rationalisation of Company’s operations, introduction of technological change, or changes in work practices’) – Golden Cockerel applied – Commission found no express requirement in clause 11.1.1, or anywhere else in Agreement, that employee must have been made surplus as a precondition for the operation of the rate retention entitlement – found the only stated precondition is employee must have been ‘appointed’ to a classification with lower total rate of pay ‘due to’ one or more of the three identified situations – found appointments of four employees to the new business caused by BlueScope’s decision to establish the new business and, eventually, to shut down the UCPD – found that decision at least involved a rationalisation of BlueScope’s operations and the introduction of new technology – not necessary to go much further than the 9 May 2016 letter to reach that conclusion – Commission did not accept Blue Scopes submission that because four employees made their applications voluntarily, the chain of causation was broken – found that clause 34.3.5(a) makes clear, participation in transition process is voluntary since the employee may alternatively decide to leave BlueScope’s employment with a retrenchment package – no party contended that employee’s decision to enter into the transition period under clause 34.3.5 broke the chain of causation between the circumstances which caused the employee to be made surplus and any subsequent appointment of the employee to an alternative lower-paid position – BlueScope in its submissions identified some business policy reasons why clause 11.1.1 should not apply to employees who had not been declared surplus and entered into the transition period contemplated by clause 34.3.5 – those submissions not relevant to the task which is to give effect to the Agreement and not to determine what might be considered to be a just and fair outcome – Commission found four employees entitled to retention of rate benefit in Clause 11.1.1 of Agreement. The Australian Workers’ Union v BlueScope Steel (AIS) P/L
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