Hitachi Energy Australia Pty Ltd T/A Hitachi Energy

[2023] FWCA 652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hitachi Energy Australia Pty Ltd T/A Hitachi Energy

(AG2023/208)

Hitachi Energy Transformer Service Technicians Enterprise Agreement 2023

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 28 FEBRUARY 2023

Application for approval of the Hitachi Energy Transformer Service Technicians Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Hitachi Energy Transformer Service Technicians Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hitachi Energy Australia Pty Ltd T/A Hitachi Energy. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is 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.

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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 organisation.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 30.1 - Redundancy
· Clause 30.3 - Redundancy

However, noting the undertaking attached to the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 March 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Hitachi Energy Australia Pty Ltd, trading as Hitachi Energy, applied to the Fair Work Commission for approval of the Hitachi Energy Transformer Service Technicians Enterprise Agreement 2023. The dispute involved the terms of the proposed agreement, which was intended to govern the employment of transformer service technicians within the company. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement complied with the procedural and substantive requirements set forth in the Fair Work Act. Procedurally, the Commission had to consider whether proper consultation had occurred and if the agreement had been certified by the Australian Building and Construction Commission. Substantively, the Commission had to assess whether the agreement contained the minimum terms and conditions as specified by the Act and whether it was likely to achieve an improved outcome for employees in terms of pay and conditions.

The Commission found that the agreement had been appropriately certified and that there had been sufficient consultation between the parties. The terms of the agreement were examined to ensure they met the minimum standards required by the Act, and it was determined that they did. The Commission concluded that the agreement was likely to result in improved outcomes for employees, taking into account factors such as pay rates, working conditions, and dispute resolution mechanisms. Therefore, the Commission approved the agreement.

The final order of the Commission was the approval of the Hitachi Energy Transformer Service Technicians Enterprise Agreement 2023, which is now registered and enforceable under the Fair Work Act. This decision sets the terms and conditions of employment for the relevant employees, ensuring they are protected under the approved enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established