Sgs Australia Pty Ltd

[2025] FWCA 2143

[2025] FWCA 2143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Sgs Australia Pty Ltd

(AG2025/1966)

SGS AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2025

Test Industry
COMMISSIONER REDFORD	MELBOURNE, 4 JULY 2025

Application for approval of the SGS Australia Pty Ltd Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the SGS Australia Pty Ltd Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SGS Australia Pty Ltd (SGS). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. It was also distributed to employees after the time required by s 173(3) of the Act. However, I am satisfied that these are a minor or technical errors and employees covered by the Agreement were not likely to have been disadvantaged by them. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

Undertakings

1. In response to several issues raised with SGS in relation to its application it has provided written undertakings, a copy of which are attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The views of the bargaining representatives have been sought in relation to the undertakings and none were expressed. The undertakings are taken to be a term of the agreement. 

1. The undertakings relate to:  

a.The definition of Afternoon Shift

b.The definition of Night Shift

c.The Kilometre Allowance

Interaction with the National Employment Standards

1. Clause 6.3 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where superior provisions apply in the Agreement (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Clause 34.22 - Compassionate leave

b.Clause 35.2 - Public holidays

c.Clause 40.3 - Termination - employee notice

d.Clause 40.9 - Termination through serious misconduct

1. In this regard, I note in particular that clause 35.2 of the Agreement provides that employees may be requested to work on public holidays and will work where that request is reasonable “in accordance with the NES”. The factors to determine whether such requests are reasonable, as set out in s 114(4) of the Act are set out below and, because of the NES precedence clause, will apply to employees covered by this Agreement. It should be noted that otherwise, the NES provides that an employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes:

(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

(b) the employee’s personal circumstances, including family responsibilities;

(c) whether the employee could reasonably expect that the employer might request work on the public holiday;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

(e) the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork);

(f) the amount of notice in advance of the public holiday given by the employer when making the request;

(g) in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

(h) any other relevant matter.

Consideration

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the AMWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE529525  PR788713>

ANNEXURE A