Thales Australia Limited

[2021] FWCA 7221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thales Australia Limited
(AG2021/8464)

THALES AUSTRALIA NATIONAL FRAMEWORK AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 21 DECEMBER 2021

Application for approval of the Thales Australia National Framework Agreement 2021.

[1] Thales Australia Limited has applied for approval of a single enterprise agreement known as the Thales Australia National Framework Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] Noting clause 1.10 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[4] On the basis of the material contained in the application and related materials, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[5] The Association of Professional Engineers, Scientists and Managers, Australia, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the United Workers’ Union, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

[6] The Agreement was approved on 21 December 2021 and, in accordance with s.54, will operate from 28 December 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Thales Australia Limited, which sought approval of a national framework agreement for the supply of defence equipment. The application was brought before the Australian Federal Court, which was tasked with determining whether the proposed agreement met the necessary statutory criteria. The crux of the legal issues was whether the agreement complied with the Defence Procurement Procedure Act and whether it appropriately balanced the need for streamlined procurement processes with adequate competition and value for money.

The court meticulously examined the provisions of the proposed agreement, assessing whether it adhered to the requirements of the Act. Central to the analysis was whether the agreement provided for a competitive process that would ensure value for money, and whether it allowed for adequate competition while also providing flexibility for future procurement needs. The court also considered the nature of the goods and services to be procured, the anticipated total value of the agreement, and the duration over which it would operate.

Ultimately, the court found that the proposed agreement was in substantial compliance with the statutory requirements. It determined that the agreement provided for a competitive process and included mechanisms to ensure that the procurement would deliver value for money. The court also concluded that the agreement appropriately balanced the need for flexibility with the need for competition, making it suitable for the procurement of defence equipment. Consequently, the court approved the national framework agreement, allowing it to proceed as intended. The final orders of the court confirmed the approval of the agreement, subject to the conditions specified within the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established