Sims Group Australia Holdings Limited t/as Sims Metal Summary

[2025] FWCA 1213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Sims Group Australia Holdings Limited t/as Sims Metal

(AG2025/902)

SIMS METAL VICTORIAN COLLECTIVE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 10 APRIL 2025

Application for approval of the Sims Metal Victorian Collective Agreement 2024

An application has been made for approval of an enterprise agreement known as the Sims Metal Victorian Collective Agreement 2024 (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 (Sims Metal). The Agreement is a single enterprise agreement.

Undertakings

In response to several issues raised with Sims Metal in relation to its application, it has provided written undertakings, a copy of which are 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. The undertakings are taken to be a term of the agreement.

The undertakings relate to:

a.The engagement of apprentices under this Agreement
b.The casual minimum engagement period

Interaction with the National Employment Standards

Clause 7 of the Agreement provides that nothing in the agreement shall operate to reduce an employee’s entitlements under the National Employment Standards (NES) and in the event of any inconsistency, the NES will apply (NES precedence clause).

On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

a.Clause 30.3 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

Clause 34.1 of the Agreement provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. 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 employee, rather than a majority of employees. However, when read in conjunction with the NES precedence clause 34.1 will have no effect to the extent of any inconsistency with s 115(3) of the Act.

Consideration

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.

The Australian Workers Union (AWU) 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 AWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

Sims Group Australia Holdings Limited, trading as Sims Metal, applied to the Fair Work Commission for approval of the Sims Metal Victorian Collective Agreement 2024. The application was made to ensure the agreement's compliance with relevant industrial laws and to facilitate the agreement's operation. The legal issues before the court were primarily focused on whether the agreement complied with the relevant sections of the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the court needed to determine if the agreement met the requirements for good faith bargaining, covered the appropriate scope of employees, and was fair and reasonable in its terms.

The Fair Work Commission assessed the agreement against statutory provisions, examining the bargaining process, the content of the agreement, and its impact on employees. The Commission found that the agreement was the product of good faith negotiations and covered a defined scope of employees, aligning with the requirements of the Act. The terms of the agreement were also found to be fair and reasonable, taking into account the economic context and the interests of both the employer and employees. The Commission concluded that the agreement complied with the necessary legal standards and approved the Sims Metal Victorian Collective Agreement 2024.

In approving the agreement, the Fair Work Commission noted the importance of maintaining industrial harmony and ensuring that the terms of the agreement were beneficial to both parties. The Commission emphasised the need for ongoing compliance with industrial laws and highlighted the importance of the parties' cooperation in implementing the agreement effectively. The final orders of the Commission included the approval of the Sims Metal Victorian Collective Agreement 2024, effective from the date of the decision.

Sims Group Australia Holdings Limited t/as Sims Metal

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established