Sims Group Australia Holdings Limited
[2024] FWCA 1405
•26 APRIL 2024
| [2024] FWCA 1405 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Sims Group Australia Holdings Limited
(AG2024/1105)
SIMS METAL PERTH METROPOLITAN COLLECTIVE AGREEMENT 2023
| Manufacturing and associated industries | |
| COMMISSIONER ALLISON | MELBOURNE, 26 APRIL 2024 |
Application for approval of the Sims Metal Perth Metropolitan Collective Agreement 2023
An application has been made for approval of an enterprise agreement known as the Sims Metal Perth Metropolitan Collective Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sims Group Australia Holdings Limited. The Agreement is a single enterprise agreement.
On 15 April 2024, my Chambers sent correspondence to the parties outlining a number of potential issues with the Agreement. In that correspondence, I observed that the Agreement does not provide a minimum engagement period for casual employees, while the Awards provide a minimum engagement period of 4 hours. I sought and received an undertaking to resolve this issue.
A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.
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.
I observe the following provision(s) may be inconsistent with the National Employment Standards (NES):
Clause 21, relating to abandonment of employment, may preclude an employee from their minimum notice of termination entitlement in s.117(3) of the Act.
Clause 38.2, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with s.104 of the Act.
Clause 42.1(c), which provides for substituting an alternative day for a public holiday by agreement between the Employer and the majority of Employee/s in the relevant enterprise or section of the enterprise. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.
However, noting clause 10 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
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 organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 May 2024. The nominal expiry date of the Agreement is 31 October 2026.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
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Annexure A
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