Hitachi Energy Australia Pty Ltd Summary

[2023] FWCA 2299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hitachi Energy Australia Pty Ltd

(AG2023/2402)

HITACHI ENERGY AUSTRALIA HIGH VOLTAGE COMPONENTS LILYDALE FACTORY & ETU / AMWU / UWU - ENTERPRISE AGREEMENT 2023

Electrical contracting industry
COMMISSIONER MIRABELLA	MELBOURNE, 25 JULY 2023

Application for approval of the Hitachi Energy Australia High Voltage Components Lilydale Factory & ETU / AMWU / UWU - Enterprise Agreement 2023.

Hitachi Energy Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Hitachi Energy Australia High Voltage Components Lilydale Factory & ETU / AMWU / UWU - Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 17 of the Form F17 provides that the notification time for the Agreement was 16 March 2022.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 25.2 of the Form F17 provides that the Agreement was made on 4 July 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

I observe that clause 33 (public holidays) is likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 3.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); and the United Workers’ Union, 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) and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

The Agreement was approved on 25 July 2023 and, in accordance with s.54, will operate from 1 August 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Hitachi Energy Australia Pty Ltd applied to the Fair Work Commission for approval of a new enterprise agreement with the Electrical Trades Union, the Australian Manufacturing Workers' Union, and the United Workers Union. The agreement proposed changes to the terms and conditions of employment for employees at the Lilydale Factory. The parties had engaged in negotiations, and the application was made under section 233 of the Fair Work Act 2009. The Commission was required to determine whether the proposed agreement met the criteria for approval, including whether it provided for the better off overall test, and whether it was in accordance with the relevant provisions of the Act.

The Commission examined the evidence presented by the parties and considered the implications of the proposed changes. The Commission noted that the agreement provided for a range of changes to the terms and conditions of employment, including changes to wages and hours of work. The Commission also considered the impact of the proposed agreement on the employees and the employer, and whether the agreement was in the interests of the employees and the employer. The Commission concluded that the proposed agreement met the criteria for approval, including the better off overall test, and that it was in accordance with the relevant provisions of the Act.

The Commission approved the Hitachi Energy Australia High Voltage Components Lilydale Factory & ETU / AMWU / UWU - Enterprise Agreement 2023, which will now be binding on the parties. The agreement includes changes to the terms and conditions of employment for employees at the Lilydale Factory, including changes to wages and hours of work. The approval of the agreement is subject to the provisions of the Fair Work Act 2009 and any relevant industrial instruments. The decision of the Commission is final and binding on the parties.

Hitachi Energy Australia Pty Ltd

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Background to the litigation

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