Hitachi Energy Australia Pty Ltd

[2025] FWCA 3356

[2025] FWCA 3356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hitachi Energy Australia Pty Ltd

(AG2025/3012)

HITACHI ENERGY AUSTRALIA PTY LTD HIGH VOLTAGE COMPONENTS LILYDALE FACTORY & ETU/AMWU/UWU ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 7 OCTOBER 2025

Application for approval of the Hitachi Energy Australia Pty Ltd High Voltage Components Lilydale Factory & ETU/AMWU/UWU Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Hitachi Energy Australia Pty Ltd High Voltage Components Lilydale Factory & ETU/AMWU/UWU Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hitachi Energy Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 10 September 2025.

1. In respect of the alleged issuing of the Notice of Employee Representational Rights (NERR) and notification time deficiency, I do not believe that the exceeding of 14 days had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

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

• Public holiday: Clause 37 of the agreement limits public holidays to an overall entitlement of 11 public holidays per calendar year. While the agreement is silent on the entitlement to any other day or part-day declared or prescribed to be observed within a State or Territory, clause 37 appears to be inconsistent with s.115 of the Act which does not limit the number of public holidays per year.

• Annual leave: Clause 33.2 of the agreement, which provides the manner in which annual leave accrues in the Agreement, is inconsistent with s.87(2) of the Act where annual leave accrues progressively.

• Personal/carer’s leave: Clause 40.2 of the agreement, which provides the manner in which personal leave accrues in the Agreement, is inconsistent with the s.96 (2) of the Act where personal leave accrues progressively.

1. Clause 5.2 of the Agreement acts as an effective NES precedence clause, in that it states that “This agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconstancy between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of this inconsistency”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES. 

1. The Applicant has provided written undertakings, dated 3 October 2025, and a copy is attached in Annexure A. 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. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The “Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)”, the “Australian Manufacturing Workers Union (AMWU)” and the “United Workers Union (UWU)” 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, 190, 193 and 193A 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 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE530682  PR792414>

Annexure A