ENTERPRISE BARGAINING – majority support determination – s.236 Fair Work Act 2009 – application for a majority support determination – Muswellbrook branch of Hitachi Construction Machinery (Australia) P/L (Hitachi) supplies mining and construction equipment and related services, parts and technical support – some employees work predominantly at service workshop at Muswellbrook branch but most spend significant time working at different coal mines around Hunter Region – Construction, Forestry, Mining and Energy Union (CFMEU) contends that 17 service employees of Hitachi who work at Liddell open cut coal mine (Liddell Mine) in Hunter Valley (Employees) are not covered by Hitachi Construction Machinery (Australia) P/L Service Enterprise Agreement 2014 (Agreement) and want to renegotiate their own agreement with Hitachi – applied for majority support determination in relation to Employees – parties requested that Commission determine whether the Agreement covered the Employees as a threshold issue in proceedings – CFMEU contended in order to be covered by Agreement, an employee must work and be based and perform work at the Hitachi Muswellbrook branch 190, 27-35 Thomas Mitchell Drive, Muswellbrook and perform work at other locations in accordance with the needs of business conducted from the Muswellbrook Hitachi branch – Hitachi contended that Agreement covered service employees engaged in Muswellbrook operations while they were performing work at service workshop, as well as site work – Golden Cockrell P/L considered – Commission found there was ambiguity or uncertainty in coverage clauses of Agreement concerning whether service employees must perform work at each of the locations referred to in CFMEU’s claim or whether they were covered if performed work either at service workshop or site location as contended for by Hitachi – Agreement must be construed as a whole – evident that part of service work undertaken by service employees is performed at workshop in Muswellbrook but other service work is undertaken ‘in the field’ – unsurprising given that Hitachi’s business involves sale and servicing of mining and construction equipment, much of which cannot easily be transported to workshop for servicing or repairs – under construction contended by CFMEU, employees would only begin to be covered by Agreement once undertaken work at Muswellbrook branch and some work at site location – as a result, employees would become covered by Agreement at different times – some employees would never become covered by the Agreement, some employees would become covered soon after commencing operation and other employees would only become covered in third or fourth year of Agreement when they undertook work in service workshop, having worked rest of the time at one or more mine sites – Commission found that Hitachi’s interpretation of coverage provisions of Agreement accorded with business common sense but CFMEU’s did not – Commission satisfied on evidence that each Employee was covered by Agreement because they were service employees (classifications 4S to 1S) who worked at Muswellbrook branch of Hitachi, based at 27-35 Thomas Mitchell Drive, Muswellbrook and who performed work in service workshop and/or in locations designated by the Muswellbrook branch from time to time – application dismissed. Construction, Forestry, Mining and Energy Union – Northern Mining and NSW Energy District v Hitachi Construction Machinery (Australia) P/L
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