Sims Group Australia Holdings Limited T/A Sims Metal

[2024] FWCA 1184

[2024] FWCA 1184

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

(AG2024/737)

SIMS METAL SA COLLECTIVE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 4 APRIL 2024

Application for approval of the Sims Metal SA Collective Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Sims Metal SA Collective Agreement 2023 (the Agreement) 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.

1. The matter was allocated to my Chambers on 21 March 2024.

1. On 25 March 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are three National Employment Standard (NES) issues that require comment:

·  Clause 36.7 provides that an employee is entitled to access their accrued personal/carer’s leave to a maximum of 1/26 (10 days) of the nominal hours worked in the preceding 12-month period. Section 99 of the Act does not appear to limit the access to each employees accrued personal/carer’s leave.

·  Clause 36.11 provides that employees 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 and must state the reason as to why the employee is unable to attend work. It appears that this provision is a more stringent notice requirement than that permitted by s.107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started) .

·  Clause 45 sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss.117–123 of the Act.

1. Clause 7 of the Agreement acts as an effective NES precedence clause. As a result, the above clauses will not apply to the extent they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 25 March 2024. The undertaking deals with the following topics:

·   Apprentices will not be directly engaged during the life of the Agreement.

·   The minimum engagement for part time and casual employees will be 4 hours unless otherwise requested by the employee.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Australian Manufacturing Workers’ Union and Transport Workers’ Union of Australia 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) of the Act I note that the Agreement covers these organisations.

1. 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

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