Association of Professional Engineers, Scientists and Managers, Australia, The v Tahmoor Coal Pty Ltd T/A Tahmoor Coal Pty Ltd

[2024] FWC 3437

[2024] FWC 3437

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

Tahmoor Coal Pty Ltd T/A Tahmoor Coal Pty Ltd

(B2024/1425)

DEPUTY PRESIDENT SLEVIN SYDNEY, 10 DECEMBER 2024

Tahmoor Coal Pty Ltd Trading As Tahmoor Coal Pty Ltd

1. The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) has applied under s 236 of the Fair Work Act 2009 (the Act) for a majority support determination APESMA contends that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer, Tahmoor Coal Pty Ltd (Tahmoor Coal).

1. APESMA proposes that Tahmoor Coal bargain for an enterprise agreement to cover employees engaged at the Tahmoor Colliery who are employed as staff employees excluding deputies. The employees are currently covered by the Tahmoor Coal Pty Limited Management Team Workplace Agreement 2006. 

1. APESMA is a bargaining representative for employees who will be covered by the proposed agreement.

2. Relevantly, s. 237 of the Act requires that I must make the majority support determination if satisfied that a majority of employees who are employed by Tahmoor Coal who will be covered by the proposed agreement want to bargain, Tahmoor Coal has not yet agreed to bargain, the group of employees who will be covered by the agreement was fairly chosen, and it is reasonable to make the determination.

3. APESMA’s application states, and it was not contested by Tahmoor Coal. In support of its application APESMA rely upon a witness statement of Paul Wiggins. Mr Wiggins is an employee of Tahmoor Coal.  His statement establishes that:

   a)Ms Belinda Giblin, an organiser for APESMA held a meeting at the Tahmoor Colliery on 29 August 2024. 28 staff employees attended the meeting. After an explanation was given about the legal effect of enterprise agreements was given a vote was conducted on whether the employees supported bargaining for an agreement. The vote was carrying unanimously.

   b)The attendees of the meeting were then asked to sign a petition reflecting their support. They all signed.

   c)The petition stated:

   “We, the undersigned employees of SIMEC Mining, covered by the Tahmoor Coal Pty Limited Management Team Workplace Agreement 2006 wish to renegotiate our enterprise agreement under the Fair Work Act 2009 (Cth).

   In signing this majority support determination, we the undersigned understand that this document may be provided to the Fair Work Commission on a confidential basis for the purpose of supporting a majority support application.

   d)Following the meeting Mr Wiggins coordinated the distribution of the petition and the collection of signatures. He was assisted in that task by fellow employees.

4. APESMA provided the Commission with a copy of the petition on a confidential basis. Tahmoor Coal provided the Commission with a list of staff employees. I am satisfied from those documents that 55 of 79 of the relevant employees signed the petition. This number establishes that at the time the petition was finalised a majority of the relevant employees wanted to bargain.

5. In correspondence between May 2024 and September 2024 Tahmoor Coal has declined requests by APESMA to bargain for the proposed agreement. In proceedings before the Commission on 14 November 2024 Tahmoor Coal confirmed that it did not wish to bargain for the agreement.

6. The group of employees who will be covered by the agreement are operationally distinct. They are also currently covered by a collective agreement. I am satisfied that the group was fairly chosen.

7. I am satisfied that it is reasonable to make the determination. The employee are currently covered by an agreement made in 2006. Agreements such as this are known as zombie agreements. The zombie agreement should be replaced by a modern enterprise agreement reflecting updated terms and conditions.

Conclusion

1. I am satisfied that the requirements of s.237(2) have been met. Consequently, I am required by s.237(1) to make a majority support determination. The determination is published separately.

DEPUTY PRESIDENT

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