[1] This decision concerns an application for approval of the Hitachi Energy Transformer Service Technicians Enterprise Agreement 2025 (the Agreement). The application has been made under section 185 of the Fair Work Act 2009 (the FW Act) by Hitachi Energy Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Fair Work Commission must approve the Agreement if the requirements in sections 186 and 187 of the FW Act are met.

[3] Section 186(2)(c) of the FW Act requires the Fair Work Commission to be satisfied that the terms of the Agreement do not contravene section 55 of the FW Act. In considering the application, I raised a concern with the Applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), which was a bargaining representative for the Agreement, and another bargaining representative. The concern related to clause 31.2 of the Agreement, which enables the employer to deduct monies on termination of employment in circumstances where the employee has not provided the prescribed period of notice. The concern being that clause may be inconsistent with the National Employment Standards. I sought the views of the Applicant as to whether the Applicant wished to rely upon clause 4.1 of the Agreement, which may be best described as a NES precedence clause, to address the potential inconsistency. The Applicant confirmed that it did seek to rely upon clause 4.1 to address the potential inconsistency. The CEPU expressed the view that the NES should take precedence over clause 31 of the Agreement. The other bargaining representative did not express a view. The Applicant's confirmation resolves the concern.

[4] Section 205A(1) of the FW Act provides that an enterprise agreement must include a delegates' rights term for workplace delegates to whom the agreement applies. I expressed a preliminary view to the Applicant, the CEPU and the other bargaining representative that the Agreement did not appear to contain a delegates' rights term and that the delegates' right term in the relevant modern award, as varied by the Full Bench on 23 January 2026 in [2026] FWCFB 5, should be taken to be a term of the Agreement because of section 205A(2) of the FW Act. The Applicant and the CEPU agreed with my preliminary view. The other bargaining representative did not express a view. I confirm my preliminary view and in accordance with section 205A(2) of the FW Act, clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020, which concerns workplace delegates' rights, is taken to be a term of the Agreement.

[5] Based on the material provided, each of the other requirements of the FW Act that are relevant to this Agreement are satisfied.

[6] Section 201 of the FW Act requires the approval decision to note certain matters. I note in accordance with section 201(1A) that clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020, which concerns workplace delegates' rights, is taken to be a term of the Agreement because of section 205A(2). The second matter is that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia has given the Fair Work Commission a notice under section 183(1) of the FW Act that it wants the Agreement to cover it. In accordance with section 201(2) of the FW Act, I note that the Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[7] The Agreement is approved and, in accordance with section 54 of the FW Act, it will operate from 5 February 2026. The nominal expiry date of the Agreement is 30 June 2028.

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