Sims Group Australia Holdings Limited T/A Sims Metal

[2025] FWCA 3288

[2025] FWCA 3288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Sims Group Australia Holdings Limited T/A Sims Metal

(AG2025/3169)

SIMS METAL SYDNEY METROPOLITAN COLLECTIVE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER SLOAN	SYDNEY, 29 SEPTEMBER 2025

Application for approval of the Sims Metal Sydney Metropolitan Collective Agreement 2025

1. Sims Group Australia Holdings Limited has applied for approval of a single enterprise agreement known as the Sims Metal Sydney Metropolitan Collective Agreement 2025 (“Agreement”). The application is made under section 185 of the Fair Work Act 2009 (“Act”).

2. In several respects, the Agreement contains provisions that appear to be inconsistent with the National Employment Standards (“NES”). That is:

(1)Clause 34.9 provides that in order to be entitled to payment for an absence on personal (sick and carer’s) leave, the employees must provide “a medical certificate from a registered health practitioner or if not reasonably practicable a statutory declaration”. Clause 34.10 provides that if the “evidence provided by the employee does not satisfy the employer’s reasonable requirements, the employer may request the employee to attend the employer’s preferred doctor”. These obligations are arguably more onerous than the requirement in section 107(3) of the Act that the employee provide “evidence that would satisfy a reasonable person” that the absence is for the stated reason.

(2)Further in relation to personal leave, clause 34.11 states that an employee “must provide their supervisor or manager with as much notice as possible prior to the commencement of their normal shift of their inability to attend work”. This is inconsistent with section 107(2)(a) of the Act, which provides for notice to be given “as soon as practicable (which may be a time after the leave has started)”.

1. Clause 38 does not contemplate compassionate leave being available after the stillbirth of a child of the employee or a member of the employee’s immediate family or household (section 104(1)(b) of the Act) or after the employee or the employee’s spouse or de facto partner has a miscarriage (section 104(1)(c) of the Act).

2. Having noted these matters, clause 8 of the Agreement provides that the NES applies to the employees. It states, in effect, that the Agreement will apply only where it provides a more favourable outcome in respect of a particular entitlement. This should ensure that the clauses to which I have referred are not applied in a manner contrary to the NES. In raising the issues, it is my intention to ensure that this is the case.

3. Having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to the application have been met.

4. The Australian Workers’ Union (“AWU”) was a bargaining representative for the Agreement. It supports the approval of the Agreement. It has given notice under section 183 of the Act that it wants the Agreement to cover it. As required by section 201(2) of the Act, I note that the Agreement covers the AWU.

   Order – Approval

5. The Agreement is approved. In accordance with section 54 of the Act, the Agreement will operate from 6 October 2025. The nominal expiry date of the Agreement is 30 June 2028.

Variation to Agreement

1. In considering the application and the Agreement, the Commission identified an apparent error. Clause 18.2(d) provides: “Where a part-time employee/s is required to work on a public holiday, they will be paid in accordance with Clause 22.4(c).” There is no clause 22.4(c) in the Agreement. It appeared to me the clause was intended to refer to clause 23.3(c), which provides that employees rostered to work on a public holiday will be paid at the rate of double time and a half. I took this to be a drafting error, capable of being corrected under section 218A(1) of the Act.

1. I raised this matter with Sims Group and the AWU. Sims Group confirmed that clause 18.2(d) should refer to clause 23.3(c) and that this was a drafting error. Neither Sims Group or the AWU raised an objection to me acting on my own volition to vary the Agreement under section 218A(1) of the Act to correct that error.

Order – Variation

1. I order as follows:

1. Clause 18.2(d) of the Agreement is amended so that the reference to “Clause 22.4(c)” is deleted and replaced with “clause 23.3(c)”.

COMMISSIONER

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