Simcoa Operations Pty Ltd T/A Simcoa

[2024] FWCA 1044

[2024] FWCA 1044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Simcoa Operations Pty Ltd T/A Simcoa

(AG2024/638)

SIMCOA OPERATIONS PTY LTD MAINTENANCE ENTERPRISE AGREEMENT 2023

Mining industry
COMMISSIONER LIM	PERTH, 26 MARCH 2024

Application for approval of the Simcoa Operations Pty Ltd Maintenance Enterprise Agreement 2023

1. Simcoa Operations Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Simcoa Operations Pty Ltd Maintenance Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the

Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 26 May 2023.

1. The Applicant has provided written undertakings. A copy of the undertakings is 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.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

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

1. The model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

1. I note the following clauses appear to be inconsistent with the National Employment Standards (NES):

· Clause 22.4 appears to provide that in the case of termination, if the Employee fails to give notice the Employer has the right to withhold monies due to the Employee to a maximum amount equal to the ordinary time rate of pay for the period of notice. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that the clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

· Clause 31.8 does not appear to provide compassionate leave is available in circumstances of miscarriage or stillbirth. This appears inconsistent with s 104 of the Act.

· Clause 22.6 provides that other than in extenuating circumstances, if the Employee is absent from work for more than 5 consecutive work days without the Employer's authorisation, their employment will be deemed to have been abandoned. This appears to be inconsistent with the NES at s 117 of the Act.

1. However, I am satisfied that under clause 4.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.

1. The Agreement was approved on 26 March 2024 and, in accordance with s 54, will operate from 2 April 2024. The nominal expiry date of the Agreement is 26 March 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE523935  PR772686>

ANNEXURE A