BHP STEEL (AIS) PTY LTD SUPERVISORS AND TECHNICAL OFFICERS AWARD

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by The Australian Workers' Union, New South Wales, industrial organisation of employees.

 

(No. IRC 4040 of 2003)

 

 

AWARD

 

1.  Arrangement

 

Clause No.          Subject Matter

 

1.         Arrangement

2.         Title

3.         Definitions

4.         Anti-Discrimination

5.         Procedure for Resolving Claims, Issues and Disputes

6.         Redundancy

7.         Area, Incidence and Duration

 

2.  Title

 

This award shall be referred to as the BHP Steel (AIS) Pty Ltd Supervisors and Technical Officers Award.

 

3.  Definitions

 

"Employee(s)" means person(s) employed by BHP Steel (AIS) Pty Ltd at Port Kembla Steelworks in the State of New South Wales employed at Level 1 or Level 2 of the staff category structure who is/are members of the Union(s) or is/are eligible to be member(s) of the Union(s).

 

"Company" means BHP Steel (AIS) Pty Ltd.

 

"Union(s)" means the industrial organisation(s) of employees known as The Australian Workers’ Union, New South Wales and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AMWU Technical, Supervisory and Administrative Division).

 

4.  Anti-Discrimination

 

(i)         It is the intention of the parties bound by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate discrimination in the workplace.  This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity, age and responsibilities as a carer.

 

(ii)        It follows that, in fulfilling his or her obligations under the dispute resolution procedure prescribed by clause 5 of this award, the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of this award are not directly or indirectly discriminatory in their effects.  It will be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the award which, by its terms or operation, has a direct or indirect discriminatory effect.

 

(iii)       Under the Anti-Discrimination Act 1977, it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment.

 

(iv)       Nothing in this clause is to be taken to affect:

 

(a)        any conduct or act which is specifically exempted from anti-discrimination legislation;

 

(b)        offering or providing junior rates of pay to persons under 21 years of age;

 

(c)        any act or practice of a body established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977;

 

(d)        a party to this award from pursuing matters of unlawful discrimination in any  State or Federal jurisdiction.

 

(v)        This clause does not create legal rights or obligations in addition to those imposed upon the parties by the legislation referred to in this clause.

 

NOTES

 

(a)        Employers and employees may also be subject to Commonwealth anti-discrimination legislation.

 

(b)        Section 56(d) of the Anti-Discrimination Act 1977 provides:

 

"Nothing in this Act affects ... any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion."

 

5.  Procedure for Resolving Claims, Issues and Disputes

 

To enable claims, issues and disputes to be progressed while work proceeds normally, the following procedure will apply:

 

(i)         Departmental Claims, Issues and Disputes

 

(a)        Employee(s) and/or delegate(s) of the Union (s) involved will place the claim, issue or dispute before the immediate supervisor, who will take all reasonable steps to reply to the employee(s) and/or delegate(s) as soon as possible.  If the reply cannot be given by the end of the next ordinary working shift, a progress report will be given.

 

(b)        Failing agreement, the employee(s) and/or delegate(s) of the Union(s) involved will place the claim, issue or dispute before the superintendent or deputy.  The superintendent or his/her deputy will take all reasonable steps to reply to the employee(s) and/or delegate(s) as soon as possible.  If a reply cannot be given by the end of the superintendent’s or his/her deputy’s next ordinary working day, a progress report will be given.

 

(c)        Failing agreement, the employee(s) and/or delegate(s) and/or official(s) of the Union(s) involved will place the claim, issue or dispute before the appropriate manager of the section involved, or his/her deputy.  The claim, issue or dispute and all relevant circumstances relating to it shall then be fully reviewed by the management of the company and by the Union(s) involved, and reasonable steps shall be taken in an endeavour to resolve the matter.

 

(d)        Failing agreement, the claim, issue or dispute shall be referred to the Industrial Relations Commission, if the Union(s) wish to pursue it further.

 

(e)        The procedures in paragraphs (a), (b) and (c) of this subclause do not apply to claims, issues or disputes relating to genuine safety matters.  In such matters the Company will undertake immediate investigations, including discussions with the employee(s) and/or delegate(s) and/or official(s) of the Union(s) involved.  As necessary, the appropriate Government authority will be involved.

 

(ii)        General Claims, Issues and Disputes

 

(a)        The official(s) and delegate(s) of the Union(s) involved will place the claim, issue or dispute before the Company’s Industrial Relations Department, which will take all reasonable steps to reply as soon as possible.

 

(b)        Failing agreement, the claim, issue or dispute shall be referred to the Industrial Relations Commission, if the Union(s) wants to pursue it further.

 

The provisions of this clause shall not affect in any way any other rights and duties of any party to this award pursuant to the Act or any other Act or at common law in relation to any matter.

 

6.  Redundancy

 

(i)         Application

 

(a)        This clause shall apply in respect of full-time and part-time employees.

 

(b)        This clause shall only apply to employers who employ 15 or more employees immediately prior to the termination of employment of employees.

 

(c)        Notwithstanding anything contained elsewhere in this award, this clause shall not apply to employees with less than one year's continuous service and the general obligation on employers shall be no more than to give such employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment.

 

(d)        Notwithstanding anything contained elsewhere in this award, this clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

 

(ii)        Introduction of Change

 

(a)        Employers' Duty to Notify

 

(1)        Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the union to which they belong.

 

(2)        "Significant effects" include termination of employment, major changes in the composition, operation or size of the employers workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

 

(b)        Employer's Duty to Discuss Change

 

(1)        The employer shall discuss with the employees affected and the Union to which they belong, inter alia, the introduction of the changes referred to in paragraph (a) above, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees, and shall give prompt consideration to matters raised by the employees and/or the Union in relation to the changes.

 

(2)        The discussion shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in paragraph (a) of this subclause.

 

(3)        For the purpose of such discussion, the employer shall provide to the employees concerned and the Union to which they belong, all relevant information about the changes, including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees, provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(iii)       Redundancy

 

(a)        Discussions before Terminations

 

(1)        Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone pursuant to subparagraph (1) of paragraph (a) of subclause (ii) above, and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the union to which they belong.

 

(2)        The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of subparagraph (1) of this paragraph and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any termination on the employees concerned.

 

(3)        For the purposes of the discussion the employer shall, as soon as practicable, provide to the employees concerned and the Union to which they belong, all relevant information about the proposed terminations, including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of workers normally employed and the period over which the terminations are likely to be carried out.  Provided that any employer shall not be required to disclose confidential information the disclosure of which would adversely affect the employer.

 

(iv)       Termination of Employment

 

(a)        Notice for Changes in Production, Programme, Organisation or Structure

 

This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from "production", "program", "organisation" or "structure" in accordance with subparagraph (1) of paragraph (a) of subclause (ii) above.

 

(1)        In order to terminate the employment of an employee the employer shall give to the employee the following notice:

 

Period of Continuous Service	Period of Notice
Less than 1 year	1 week
1 year and less than 3 years	2 weeks
3 years and less than 5 years	3 weeks
5 years and over	4 weeks

 

(2)        In addition to the notice above, employees over 45 years of age at the time of the giving of the notice with not less than two years' continuous service shall be entitled to an additional weeks notice.

 

(3)        Payment in lieu of the notice above shall be made if the appropriate notice period is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(b)        Notice for Technological Change

 

This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from "technology" in accordance with subparagraph (1) of paragraph (a) of subclause (ii) above.

 

(1)        In order to terminate the employment of an employee, the employer shall give to the employee three months' notice of termination.

 

(2)        Payment in lieu of the notice above shall be made if the appropriate notice period is not given.  Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

 

(3)        The period of notice required by this subclause to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any Act amending or replacing either of these Acts.

 

(c)        Time Off during the Notice Period

 

(1)        During the period of notice of termination given by the employer, an employee shall be allowed up to one days time off without loss of pay during each week of notice, to a maximum of five weeks, for the purposes of seeking other employment.

 

(2)        If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent.

 

(d)        Employee Leaving during the Notice Period

 

If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments under this clause had the employee remained with the employer until the expiry of such notice.  Provided that, in such circumstances, the employee shall not be entitled to payment in lieu of notice.

 

(e)        Statement of Employment

 

The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee a written statement specifying the period of the employees employment and the classification of or the type of work performed by the employee.

 

(f)         Notice to Centrelink

 

Where a decision has been made to terminate employees, the employer shall notify the Centrelink thereof as soon as possible giving relevant information including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out.

 

(g)        Department of Social Security Employment Separation Certificate

 

The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an "Employment Separation Certificate" in the form required by the Department of Social Security.

 

(h)        Transfer to Lower Paid Duties

 

Where an employee is transferred to lower paid duties for reasons set out in paragraph (a) of subclause (ii) above, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employees employment had been terminated, and the employer may, at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new ordinary time rate for the number of weeks of notice still owing.

 

(i)         Severance Pay

 

(a)        Where the employment of an employee is to be terminated pursuant to subclause (iv) above, subject to further order of the Industrial Relations Commission, the employer shall pay the following severance pay in respect of a continuous period of service:

 

(1)        If an employee is under 45 years of age, the employer shall pay in accordance with the following scale:

 

Years of Service	Under 45 Years of Age Entitlement
Less than 1 year	Nil
1 year and less than 2 years	4 weeks
2 years and less than 3 years	7 weeks
3 years and less than 4 years	10 weeks
4 years and less than 5 years	12 weeks
5 years and less than 6 years	14 weeks
6 years and over	16 weeks

 

(2)        Where an employee is 45 years of age or over, the entitlement shall be in accordance with the following scale:

 

Years of Service	45 Years of Age and Over Entitlement
Less than 1 year	Nil
1 year and less than 2 years	5 weeks
2 years and less than 3 years	8.75 weeks
3 years and less than 4 years	12.5 weeks
4 years and less than 5 years	15 weeks
5 years and less than 6 years	17.5 weeks
6 years and over	20 weeks

 

(3)        "Week's pay" means the all-purpose rate of pay for the employee concerned at the date of termination and shall include, in addition to the ordinary rate of pay, over-award payments, shift penalties and allowances provided for in the relevant award.

 

(b)       Incapacity to Pay

 

Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (a) above.

 

The Industrial Relations Commission shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in paragraph (a) above will have on the employer.

 

(c)        Alternative Employment

 

Subject to an application by the employer and further order of the Industrial Relations Commission, an employer may pay a lesser amount (or no amount) of severance pay than that contained in paragraph (a) above if the employer obtains acceptable alternative employment for an employee.

 

(vi)       Savings Clause

 

Nothing in this award shall be construed so as to require the reduction or alteration of more advantageous benefits or conditions which an employee may be entitled to under any existing redundancy arrangement, taken as a whole, between the union and any employer bound by this award.

 

7.  Area, Incidence and Duration

 

This award is binding upon the Company, Union(s) and all employees of the Company as defined in clause 3, Definitions.  This award shall take effect from the first full pay period to commence on or after 31 July 2003 and shall remain in force for two years.

 

 

 

J. P. GRAYSON  D.P.

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.