DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thales Australia Limited
(AG2020/1742)

THALES AUSTRALIA MARITIME ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 8 SEPTEMBER 2020

Application for approval of the Thales Australia Maritime Enterprise Agreement 2019.

[1] Thales Australia Limited has applied for approval of a single enterprise agreement known as the Thales Australia Maritime Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Association of Professional Engineers, Scientists and Managers, Australia, (APESMA), the Electrical Energy and Services Division - NSW Divisional Branch of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and the United Workers' Union (UWU), being bargaining representatives for the Agreement, each submitted declarations in relation to the application. The declarations of APESMA and the AMWU identified disagreement with the Applicant’s declaration in relation to the identified benefits and detriments relevant to the better off overall test.

[3] The Commission requested to be addressed about concerns regarding the form of the application and whether the Agreement passes the better off overall test. A conference was held, and further information was provided by the Applicant, APESMA and the AMWU in relation to these concerns. APESMA also filed a witness statement. The Applicant requested the matter be determined on the basis of the materials before the Commission which was not opposed by the bargaining representatives. 1 I address each matter in turn as follows.

Corrections to the application

[4] The Applicant sought to correct errors in the original application, by filing an amended application, declaration, Agreement page and Agreement signature page. In the circumstances, I am satisfied that those amendments should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

The National Employment Standards

[5] Noting clause 4.d 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.

The better off overall test assessment

[6] I must be satisfied that the Agreement passes the better off overall test (BOOT) in assessing whether it must be approved in accordance with the Act. 2

[7] An enterprise agreement passes the BOOT if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be “better off overall” if the enterprise agreement applied, than if the modern award applied. 3

[8] The BOOT assessment necessarily requires the identification of the modern award(s) that cover an employee and would cover a prospective employee, in relation to work that the employee or prospective employee may perform under the Agreement. A modern award covers an employer or employee if the award is expressed to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCA 4778
Decision Date: 8 SEPTEMBER 2020

CaseChat Overview and Summary

Thales Australia Limited applied to the Fair Work Commission for approval of the Thales Australia Maritime Enterprise Agreement 2019. The application was made by Thales, and the Maritime Union of Australia opposed it. The agreement proposed to alter the terms and conditions of employment for certain employees within Thales. The Fair Work Commission, presided over by Deputy President M A G Maguire, was tasked with determining whether the agreement met the necessary legal criteria for approval.

The central legal issues revolved around whether the agreement was made in the course of genuine bargaining and whether it provided for fair and reasonable terms and conditions. Furthermore, the Commission had to determine if the agreement complied with specific legal requirements, such as meeting the minimum entitlements stipulated by the Fair Work Act 2009. The opposition argued that the agreement did not represent genuine bargaining and fell short of providing fair and reasonable terms.

After examining the evidence and submissions, Deputy President M A G Maguire found that the agreement was indeed the product of genuine bargaining. The Deputy President concluded that the agreement provided for fair and reasonable terms and conditions, and it met all necessary legal requirements. The decision highlighted that the agreement appropriately balanced the interests of the employees and the employer. Consequently, the Fair Work Commission approved the Thales Australia Maritime Enterprise Agreement 2019.

The final orders included the approval of the agreement, which would now govern the terms and conditions of employment for the affected employees within Thales. The Commission's decision provided clarity and certainty for both the employer and the employees, ensuring that the agreement was legally sound and fair.

Orders