Sims Group Australia Holdings Limited t/as Sims Metal

Application for approval of the Sims Metal Victorian Collective Agreement 2024

[1] 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.

[2] 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.

[3] The undertakings relate to:

1. The engagement of apprentices under this Agreement

2. The casual minimum engagement period

Interaction with the National Employment Standards

[4] 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).

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

1. 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.

[6] 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.

[7] 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.

[8] 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.

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

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