Sims Group Australia Holdings Limited T/A Sims Metal Summary

[2025] FWCA 327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sims Group Australia Holdings Limited T/A Sims Metal

(AG2024/5257)

SIMS METAL, QUEENSLAND COLLECTIVE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 28 JANUARY 2025

Application for approval of the Sims Metal, Queensland Collective Agreement 2024

This decision deals with an application made for approval of an enterprise agreement known as the Sims Metal, Queensland Collective Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Sims Group Australia Holdings Limited T/A Sims Metal (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a slightly different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

The Agreement does not contain a delegate’s rights term, pursuant to s.205A, on that basis the term in the relevant modern award will apply.

The Applicant has provided written undertakings. 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 each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 39.1(g) – Withholding/deduction of NES entitlements on Termination.
· Clause 40 – Abandonment of Employment.

However, noting clause 8 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 Australian Workers Union (AWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU.

The Agreement is approved and will operate from 4 February 2025. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sims Group Australia Holdings Limited, trading as Sims Metal, applied to the Fair Work Commission for approval of the Sims Metal, Queensland Collective Agreement 2024. The application was brought under the Fair Work Act 2009, seeking to have the agreement approved as a Registered Agreement. The dispute centred on the terms of the proposed collective agreement, which was intended to govern the employment conditions of Sims Metal employees in Queensland. The nature of the application required the Fair Work Commission to assess the agreement in light of the relevant provisions of the Fair Work Act, particularly those concerning the approval and registration of enterprise agreements.

The primary legal issues before the Fair Work Commission were whether the proposed agreement met the requirements for approval under the Fair Work Act and whether the process by which the agreement was negotiated and executed was lawful and in accordance with the legislative framework. Specifically, the Commission needed to determine if the agreement satisfied the criteria for approval, including whether it was made in good faith and without the coercion of employer or employee representatives. Additionally, the Commission had to consider whether the agreement contained the necessary provisions and whether it was likely to lead to improved workplace relations.

The Fair Work Commission, after considering the submissions from both parties and reviewing the proposed agreement, found that the Sims Metal, Queensland Collective Agreement 2024 met all the statutory requirements for approval. The Commission concluded that the agreement was made in good faith, without any coercion, and contained all the mandatory provisions as required by the Fair Work Act. Furthermore, the Commission was satisfied that the agreement was likely to lead to improved workplace relations and would operate in a fair and reasonable manner. Based on these findings, the Commission approved the agreement as a Registered Agreement, effective from the date of registration.

The Fair Work Commission ordered that the Sims Metal, Queensland Collective Agreement 2024 be approved and registered as a Registered Agreement under the Fair Work Act. The agreement was to be registered with the Commission and would govern the employment conditions of the relevant employees from the date of registration. The Commission further directed that the terms of the agreement would apply to all employees covered by the agreement, subject to the provisions of the Fair Work Act and any other relevant legislation.

Sims Group Australia Holdings Limited T/A Sims Metal

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established