Association of Professional Engineers, Scientists and Managers, Australia, The v Peabody Energy Australia Pty Ltd trading as Wambo Coal Pty Ltd

[2013] FWC 9619

[2013] FWC 9619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Peabody Energy Australia Pty Ltd trading as Wambo Coal Pty Ltd
(B2013/1523)

COMMISSIONER STANTON NEWCASTLE, 6 DECEMBER 2013

Application for a majority support determination.

[1] This matter concerns an application for a majority determination pursuant to s.236 of the Fair Work Act 2009 (the Act) by the Association of Professional Engineers, Scientists and Managers, Australia (the Association) with respect to mine deputies, on shift staff, engineering and technical services staff involved within the operations of the Wambo Coal Pty Ltd (Wambo Coal) located at Warkworth, New South Wales and operated by Peabody Energy Australia Pty Ltd (Peabody Energy), other than persons engaged at the level of coordinator and above (the relevant employees).

[2] At the hearing of the matter earlier today, Ms Kylie Rooke-Davis appeared for the Association. There was no appearance by, or on behalf of Peabody Energy. However, I am satisfied Peabody Energy was served with the application and in that regard, I note that in email correspondence dated 4 December 2013, Ms Nicola Searle, Human Resources Superintendent, Wambo Coal informed the Commission that Peabody Energy “would not be contesting the application” and would not be attending today’s hearing.

Relevant Legislation

[3] Section 236 of the Act relevantly provides:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.”

[4] Before determination can be made, the Commission must be satisfied the requirements of s237 of the Act have been met:

“237 When FWA must make a majority support determination

Majority support determination

(1) FWA must make a majority support determination in relation to a proposed single-enterprise agreement if:

(a) an application for the determination has been made; and

(b) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

Evidence

[5] At the hearing Ms Rooke-Davis provided a sworn statement 1 setting out the history of the Association’s representations to Peabody Energy in support of the commencement of bargaining under the Act for an enterprise agreement to cover the relevant employees engaged at Wambo Coal. Ms Rooke-Davis amended paragraph 14 of her statement by adding the words, “and employees” to the last sentence which now reads:

APESMA wishes to produce that record to the Commission on a confidential basis to protect the privacy of its members and employees. 2

[6] Specifically, Ms Rooke-Davis’s evidence was that currently 51 relevant employees were engaged at Wambo Coal:

On 17 October 2013, Ms Rooke-Davis and Association Organiser, Mr Pacey met with members and other staff employees engaged in staff roles at Wambo Coal. Those meetings discussed the prospect of commencing negotiations with Wambo Coal towards an enterprise agreement. A resolution was proposed and endorsed by staff who attended the meetings authorising the Association to commence negotiations with Wambo Coal towards an enterprise agreement. 3

[7] On 22 October 2013, Ms Rooke-Davis wrote to the General Manager of Wambo Coal, Mr Peter Baker requesting the commencement of bargaining under the Act for an enterprise agreement to cover the relevant employees. 4

[8] On 30 October 2013, Mr Baker replied to the Association’s correspondence dated 22 October 2013 in the following terms:

Peabody does not agree to bargain, and has not initiated bargaining for an enterprise agreement to cover staff involved with the operations of the underground mine at Wambo Coal. 5

[9] On 7 and 10 November 2013, Ms Rooke-Davis and Mr Pacey convened a meeting of Association members and other staff at Wambo Coal to report that Peabody Energy did not agree to bargain. During the course of those meetings, a confidential petition (“Majority Support Statement”), which expressed the desire of signatories to engage in enterprise bargaining with Peabody Coal, was undertaken. Ms Rooke-Davis read the text of the Majority Support Statement to the meeting and stated to employees:

They should in no way feel pressured to sign the statement and that if they wished to sign they could, but there would be no ramifications to anyone who chose not to sign it or wished to have more time to think about it.

Ms Rooke-Davis also stated that it was important that staff did not pressure other staff into signing and that they respect each other’s views and wishes. 6

[10] It was the evidence of Ms Rooke-Davis that the Majority Support Statement was given to Association delegates for circulation amongst relevant employees who were unable to attend the meetings convened on 7 and 10 November 2013. Further, 50 of the 51 relevant employees who would be covered by the proposed enterprise agreement had signed the confidential Majority Support Determination petition. 7 This document contains the name, signature and job title of 50 employees who signed the Majority Support Statement on 7, 8, 9, 10, 11 and 18 November 2013.

[11] The preamble to the confidential petition read as follows:

Majority Support Statement to commence negotiations for an enterprise agreement under the Fair Work Act 2009

I, the undersigned, am employed by Peabody Energy Australia Coal Pty Ltd at the Wambo mine. My employment involves work associated with the Wambo Underground Mine.

I want my employer to bargain for an Enterprise Agreement to cover Deputies, On Shift Staff and Technical Services and Engineering Staff involved with the operations of the Wambo Underground Mine who are employed by Peabody Energy Australia Coal Pty Ltd, other than persons engaged at the level of Coordinator and above.

I understand that this document may be provided to the Fair Work Commission on a confidential basis for the purpose of evidencing support for the commencement of bargaining and that it will not be provided to my employer.

I request my employer commence bargaining with APESMA in good faith and as soon as practicable.

Consideration

[12] At the outset I consider the Majority Support Statement signed by 50 of the 51 relevant employees a clear and unambiguous request that the relevant employees wish to bargain for an enterprise agreement with Peabody Energy. There is no evidence before the Commission to suggest otherwise. Nor is there any evidence to support the proposition that the relevant employees were coerced or pressured to sign the Majority Support Statement.

[13] I am satisfied the Association is entitled to represent the relevant employees to be covered by the proposed enterprise agreement. I am also satisfied the “relevant employees” have been fairly chosen taking into account the nature of Wambo Coal’s operations and the geographical location of the relevant employees.

[14] I have considered the evidence of Ms Rooke-Davis and I am satisfied the majority support determination sought should be made. I am also satisfied that a majority of the relevant employees to be covered by the agreement want to bargain and to date, Peabody Energy has not yet agreed to bargain or initiated bargaining for the agreement.

[15] In consideration of the material before the Commission in support of this application, I propose to make the majority support determination as sought by the Association. The determination is issued contemporaneously with this decision.

COMMISSIONER

Appearances:

Ms K Rooke-Davis for the Association of Professional Engineers, Scientists and Managers, Australia.

Hearing details:

2013

Newcastle

6 December

 1   Exhibit 1

 2   Ibid at para 14

 3   Exhibit 2

 4   Exhibit 1 at para 8

 5   Ibid at para 9

 6   Ibid at para 11

 7   Exhibit 2

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