Construction, Forestry, Maritime, Mining and Energy Union v MacKellar Mining Pty Ltd
[2022] FWC 690
| [2022] FWC 690 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Construction, Forestry, Maritime, Mining and Energy Union
v
MacKellar Mining Pty Ltd
(B2021/622)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 30 MARCH 2022 |
MacKellar Mining Pty Ltd - Production and Maintenance Departments
Background
The Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division (CFMMEU) applied under s.236 of the Fair Work Act 2009 (the Act) for a majority support determination with respect to employees in the production and maintenance departments (employees) of MacKellar Mining Pty Ltd (MacKellar Mining/the Company) at the Carmichael Coal Mine (Mine) in Central Queensland.
On its Form F30 application, the CFMMEU asserted that in response to communication it had sent to MacKellar Mining seeking to bargain for an enterprise agreement to cover the employees, its Operations Mining Manager, Mr Brad Zillman stated that “owing to the newly extended contractual arrangements with Bravus Mining and Resources, and no provision of a signed five-year contract [for the production phase at the Carmichael Coal Mine Project], MacKellar are not in a position to progress with the CFMMEU the commencement of bargaining for a new enterprise agreement”.
Directions were issued requiring that:
· The CFMMEU file an unredacted petition said to have been signed by the Employees in support of bargaining; and
· MacKellar file a list of employees described in the application to be covered by the proposed agreement.
Both the petition and the list were required to be provided to the Commission only. Both parties filed the material required by the Directions. The list of employees provided by MacKellar Mining included 189 names. After examining the signatures on the petition (which also contained the names of employees in handwriting beside their signatures) and the list of names provided by McKellar Mining, I formed the provisional view that 135 employees had signed the petition provided by the CFMMEU. On 20 August 2021, I caused correspondence to be sent to the parties advising them of my provisional view that based on the petition and the list, a majority of the employees of McKellar Mining wished to bargain. I requested that MacKellar Mining advise whether, in light of my provisional view, the application was opposed on any of the other grounds in s. 237(2) of the Act.
MacKellar Mining advised through its legal representative that it did not oppose the application on any other grounds, however it contended that the Commission should not reach the requisite satisfaction that a majority of employees want to bargain, solely by reference to the petition. MacKellar Mining proposed that a secret ballot of employees be conducted as an alternative method for ascertaining whether employees wished to bargain, which it submitted the Commission could implement pursuant to s 237(3).
In a letter dated 12 August 2021, addressed to the CFMMEU’s Senior Legal Officer Mr Chris Newman, and copied to my Chambers, MacKellar Mining advised through its legal representative that it did not accept that the petition provided by the CFMMEU is evidence which the Commission should accept as a reliable basis for reaching any conclusions regarding the preference of the workforce, or a majority of the workforce. It was suggested that the petition may have been obtained in a way which involved deceptive conduct and inappropriate pressure being placed on employees to sign the petition. MacKellar Mining proposed that if the application is pressed, the petition be set aside, and the matter proceed on the basis of a secret ballot conducted by the Australian Electoral Commission (AEC).
My Chambers was also copied into correspondence from the CFMMEU dated 18 August 2021 in response to the letter from MacKellar Mining’s representatives on 12 August 2021. The CFMMEU denied allegations that it had used deceptive conduct and/or inappropriate pressure on employees in order to obtain signatures on the petition. The CFMMEU did not accept MacKellar Mining’s proposal for the AEC to conduct a secret ballot.
Further Directions were issued requiring outlines of submissions and statements of evidence from witnesses to be relied on at the hearing to be filed. A Hearing was conducted on 14 and 28 September 2021. The CFMMEU was represented by Mr R Anderson, Senior Legal Officer. MacKellar Mining was represented by Mr D Williams, of Minter Ellison. Permission was granted for the Respondent to be represented by a lawyer pursuant to s. 596 of the FW Act, on the basis that I was satisfied that representation would allow the matter to be dealt with more efficiently having regard to its complexity.
Evidence was given for the CFMMEU by Mr Shane John Brunker, District Vice President.[1] Evidence for MacKellar Mining was given by: Mr Duncan Guy MacKellar, Managing Director[2]; Ms Brianna Chanel Jozsef, Production Operator[3]; Mr Leonard Michael Williams, Production Operator[4]; and Ms Monica Delyce Ritter, HR Superintendent Carmichael Mine[5].
On 10 January 2022, I informed the parties that I was satisfied that the conditions in s. 237(2) of the Act were met and that consistent with s. 237(1) I was required to issue a majority support determination as sought by the CFMMEU and issued the determination. I also indicated that reasons for issuing the determination would be issued in due course. These are my reasons.
Legislation
An application for a majority support determination is made pursuant to s.236 of the Act, which provides as follows:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the FWC 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.”
Section 237 of the Act provides as follows:
“237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC 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) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by the FWC; 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), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC 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.”
The Commission must make a majority support determination if an application for the determination has been made and if the Commission is satisfied of those matters set out in s.237(2) of the Act. It is not in dispute that an application has been made. It is also common ground that MacKellar has not agreed to bargain or initiated bargaining and the Company accepts that the group of employees who will be covered by the proposed agreement is fairly chosen. The parties are in dispute about whether the Commission can be satisfied of the matters in s.237(2)(a), (c) and (d).
Evidence
MacKellar Mining
MacKellar Mining is engaged by Adani Mining Pty Ltd to provide mining services on the Bravus Project at the Carmichael Coal Mine in Central Queensland. Mr MacKellar states that the company is a “proud family business” founded by Mr MacKellar’s father in 1966 and has provided services to mines in Central Queensland for almost 50 years.
As previously stated, the Company’s case in opposition to the making of the Majority Support Determination is that the petition is not a reliable indication of employee preference on the basis that there is evidence that some of the signatures were obtained in a way which involved deceptive conduct and the application of inappropriate pressure to sign the petition in circumstances where the implications of doing so were not properly explained to the relevant employees. The evidence given by witnesses for MacKellar Mining can be summarised as follows.
Mr Duncan MacKellar is the Managing Director of MacKellar Mining. Mr MacKellar explained that many of the company’s employees have a long history with MacKellar Mining, with some having worked with the Company for over 30 years, including at the Mine. Mr MacKellar regularly visits the Mine site and communicates directly with the workforce. He has never heard any suggestion that employees are unhappy with their terms and conditions of employment, or that they would prefer to bargain for an enterprise agreement. Mr MacKellar accepted that many employees may not necessarily tell him directly if they were dissatisfied, however his belief is that if there was any groundswell of dissatisfaction at least some of the employees would let him know.
Under cross-examination Mr MacKellar said that he had not been informed that the Commission had conducted an analysis of the names of employees of MacKellar Mining on a list provided by the Company and signatures on the petition tendered by the CFMMEU and had corresponded with the Company to indicate that it had formed a provisional view that 70% of the Company’s employees wished to bargain for an enterprise agreement. While accepting that this may be the case, Mr MacKellar also stated that if there had been coercion by the CFMMEU he was not sure that the petition is a true indication of how the workforce feels. Mr MacKellar also indicated his general antipathy to a “third party” such as the CFMMEU being involved in the relationship between the Company and its employees.
Ms Jozsef is 21 years of age and had been employed by MacKellar as a production worker for one month when she made her statement on 28 July 2021. Ms Jozsef said that on 17 July 2021 she was taking a crib break in the Production Crib Room at the Carmichael Mine and that a male person she now knows to be Mr Brunker, was present in the crib room. As Ms Jozsef entered the crib room another employee handed her a piece of paper with signatures on it. Ms Jozsef asked what the paper was and did not receive a response. According to Ms Jozsef, several other employees said: “sign it, we’ve all signed it”. Ms Jozsef signed the piece of paper without reading it. Ms Jozsef said that she did this because she thought that it was something to do with work and she was new to the Company.
Ms Jozsef recalled that once most people in the room had signed the piece of paper Mr Brunker started speaking about wages and flights. According to Ms Jozsef, Mr Brunker said that the piece of paper was a petition and it was about wages and flights. He mentioned the award and wages and said that employees could be getting more money. Ms Jozsef said that she did not really understand what he was talking about and did not understand the relevance of the petition that everyone had just signed.
In relation to flights Mr Brunker said words to the effect of “there’s a new contract coming and there's a really good possibility that your flights will not be paid for and you'll have to pay for your own flights”. Ms Jozsef said that she did not believe what Mr Brunker was saying about the Company making employees pay for their own flights, but it seemed to her like a few people did. Ms Jozsef recalled that quite a few people became angry and were saying things like they had only agreed to come to the Mine because it was convenient and they would not work the Mine if they had to pay for their own flights.
Ms Jozsef could not recall if Mr Brunker said anything about an enterprise agreement or bargaining for an enterprise agreement. Ms Jozsef felt like she and other employees, had been pressured into signing the petition without Mr Brunker clearly explaining what the petition was for before they signed it. Later that night, Ms Jozsef called her mother, Ms Chanel Jozsef, and told her what had happened. Mr MacKellar explained in his evidence that Ms Chanel Jozsef previously worked for the Company as did Ms Jozsef’s grandfather.
Under cross-examination Ms Jozsef accepted that she had an opportunity to read the petition if she wanted to, to ask questions about it and was not threatened in relation to signing the petition[6]. Ms Jozsef still works with the employees who were in the crib room that day and has no issues with doing so although she observed they are pro-union. Ms Jozsef agreed that the employees who are pro-union are not doing anything wrong and are simply expressing their strong views that everyone should be in the union and that they had not done more than that on 17 July 2021. Ms Joszef also agreed that Mr Brunker was not speaking when she walked into the crib room and that she signed the petition before Mr Brunker spoke. Further, Ms Joszef agreed that she saw other employees signing the petition before Mr Brunker spoke and that consistent with her witness statement, most people in the room signed the petition before Mr Brunker spoke and that this meant that the persons who signed the petition did not do so because of what Mr Brunker said.
Ms Jozsef was also questioned about what happened after the meeting and said that she contacted her mother and told her that she had signed a petition “against” MacKellar Mining and felt that she had turned against the Company as she was happy with her contract. In response to the proposition that she could have simply asked Mr Brunker to cross her name off the petition if she was concerned about signing it, Ms Jozsef said that it was her first week, she had a lot of things going through her head and once she had finished work that day, things settled in her head and she thought that she should not have signed the petition. Having now read the petition, Ms Jozsef is not confused about what it said and agreed that had she read the petition at the time, she would have understood what it was about.[7] Ms Jozsef agreed that Mr Brunker spoke about wages and flights but also spoke about other things and could not remember whether Mr Brunker spoke about bargaining for an enterprise agreement.
Ms Jozsef said that Mr Brunker spoke about the possibility of flights being taken away but maintained that this should have been spoken about at all unless it was true. Ms Jozsef also said that she was informed at the time of starting employment that flights to site were provided and that Bravus was paying for the flights. She understood that the provision of flights is part of a policy that MacKellar Mining has and could not understand why they would be removed as it did not make sense for this to occur.
In relation to the telephone call to her mother on the evening of 17 July 2021, Ms Jozsef said that she called for a general catchup and told her mother about signing the petition during that discussion. Ms Brianna Jozsef said that she was upset as she felt she had “stabbed the MacKellars in the back” and her mother said that she would talk to Duncan [MacKellar] and Andre and tell them how Ms Jozsef felt. Ms Jozsef also told her mother that she felt pressured to be part of the union as she is aware that some members of her crew are not union members and has heard things said about them by people who are part of the union.
Ms Jozsef said that Ms Ritter contacted her on her days off to conduct a welfare check. Ms Jozsef also said that she did not speak to Mr MacKellar until he contacted her and asked her to make a statement to be used in the hearing relating to the CFMMEU’s application. Ms Jozsef reiterated that she did not speak to Mr MacKellar other than in connection with making a statement and that he initiated the telephone call. [8] Further, Ms Jozseph said that her mother had sent her Mr MacKellar’s phone number and told her that Mr MacKellar would contact her to discuss whether she was comfortable providing a statement for these proceedings. Finally, Ms Jozsef agreed that she did not tell her mother or Ms Ritter that she had been forced or pressured to sign the petition and confirmed that Mr Brunker said that there is a possibility that employees of MacKellar would lose their flights rather than this would definitely happen.
Mr Leonard Williams, a production operator employed by MacKellar, said in his evidence that on 17 July 2021, he went to the Production crib room on site to take his break during his shift. Under cross-examination, Mr Williams conceded that the date he referred to in his statement may not be correct, and that he could go back through a calendar and work out the date.[9]
When Mr Williams the entered the crib room he recalled seeing about eight other employees in the room. Mr Brunker was in the crib hut talking to workers, accompanied by another male person from the CFMMEU, however Mr Williams did not know his name. When questioned during cross examination Mr Williams referred to the second person with Mr Brunker as a “shorter fellow, stocky, bit curlyish sort of hair”.[10] Mr Williams maintained under cross-examination that this person was not another employee.
Mr Williams stated that Mr Brunker had a piece of paper which he was walking around the room with, asking people to sign. Mr Williams saw some employees signing the piece of paper. Mr Williams sat down at a table in the crib room and was approached by Mr Bunker, who placed the paper down in front of him and asked him to sign it. According to Mr Williams, Mr Brunker did not explain to him what he was being asked to sign. When Mr Williams said that he would not sign the piece of paper, Mr Brunker said words to the effect of: “Don’t you want an EBA and more money? You want more money don’t you?”. In response, Mr Williams said that he was in his own negotiations with MacKellar Mining.
Mr Williams did not read or sign the piece of paper, but he did hear Mr Brunker refer to it as a petition and tell employees that they should sign it so that the CFMMEU could get employees an EBA and more money. Under cross-examination, Mr Williams accepted that after he refused to sign, Mr Brunker did not try and pressure or threaten him about signing the petition.[11] Mr Williams also accepted that despite not looking at it, he understood what the piece of paper was and knew that it was about enterprise bargaining.[12]
Mr Williams said that Mr Brunker made the following statements multiple times to employees in the crib room:
(a) “They are going to take your flights off you and make you pay for your own flights because they’re not in your contract”
(b) “You’ll lose your flights and they will make you pay to go to work”
(c) “The same thing happened to the good people at Clermont. They’ll probably just offer you $100 towards your flights”
(d) “They shouldn’t have taken the 15% night shift allowance off you. They had no right”
(e) “I’ve challenged Sunshine Coast and they won’t talk”
(f) “I’ve been trying to talk to Sunshine Coast and they don’t want anything to do with me”
(g) “I’ve asked for documents and they’re not giving them to me”
Mr Williams clarified that by “they” and “Sunshine Coast” he understood Mr Brunker to be referring to the Company. Mr Brunker also referred to Ms Monica Ritter, HR Superintendent at MacKellar Mining, suggesting that the CFMMEU was trying to get more money for employees but that the Company was refusing to engage with the Union. According to Mr Williams, Mr Brunker also suggested that Ms Ritter and the company had already decided to remove employees’ flight entitlements but had not informed employees.
Mr Williams said that he challenged Mr Brunker on some of the statements he had made, including in relation to the “good people at Clermont”. Mr Williams did not know who Mr Brunker was referring to in this statement but recalled saying words to the effect of: “that’s not right. They won’t be doing that because there’s no commercial flights [to the Mine]”. In response Mr Brunker said words to the effect of “they had to all fly into Emerald and had to make their own way to Clermont”.
Mr Williams also challenged Mr Brunker on his statement about MacKellar Mining taking the night shift allowance from employees. Mr Williams said words to the effect of: “that’s ridiculous because we’ve still got it. They annualised it over our hourly rate and our hourly rate went up so we’re in front by what they’ve done. Now we get the loading even if we’re on holidays. You’re going to be flat out getting more than that unless you go to a BMA site”.
Mr Williams stated that he did not believe anything that Mr Brunker was saying, however he believes that the other employees who were listening to him may have been misled by the false statements Mr Brunker was making about MacKellar Mining, its intentions and the removal of employee entitlements. Mr Williams believes that most of the employees who were in the crib room at the time he was signed the petition.
Under cross-examination, Mr Williams maintained that there was a second official from the CFMMEU present in the crib room with Mr Brunker on 17 July 2021. In response to the proposition that Ms Jozsef said that there was one CFMMEU official present in the crib room on 17 July 2021, Mr Williams said that he does not know Ms Joszef and she is not on his crew, and that Ms Jozsef could not have been present on the same day that Mr Williams was in the crib room. Mr Williams said that he recalled that he was there because he had an altercation with Mr Brunker but would need to consult a calendar to confirm whether he was at work on 17 July. In response to the proposition that his statement was inaccurate, Mr Williams said that his statement was correct but that the date may be incorrect. Mr Williams also said that he made a complaint about Mr Brunker’s attendance it the crib and told his supervisor that what Mr Brunker said was “propaganda” and “proven to be rubbish” and was subsequently asked to make a statement for these proceedings.
Mr Williams confirmed that there were approximately eight other employees in the crib room when he entered and that Mr Brunker walked over and put a clipboard with a piece of paper on it in front of him and asked him to sign it. Mr Williams said that he asked what the document was and Mr Brunker told him that it was a petition to get a new EBA. Mr Williams also said that he is not in the habit of signing documents that he has not read and although he did not look at the petition he knew what it was. Mr Williams agreed that he decided not to sign the petition and was not coerced or bullied in relation to that decision and that he did not know whether other employees who signed the petition read it or not. Mr Williams also agreed that Mr Brunker spoke after the petition had been signed by a number of employees in the room.
Mr Williams maintained that Mr Brunker walked over to him but agreed with Mr Brunker’s evidence that he asked Mr Brunker: “what’s this shit about?” and that he told Mr Brunker that he negotiates his own contract. Mr Williams disagreed with the proposition that Mr Brunker merely raised a possibility that flights would be taken away and maintained that this is not how he heard it. Mr Williams also said that Mr Brunker talked about flights being taken away from employees because they were not in their contracts and that this had happened to “the good people at Clermont”. Mr Williams also disagreed with Mr Brunker’s evidence that he was aggressive but said that he listened first and then “fired questions”. Mr Williams agreed that Mr Brunker did not guarantee that there would be a pay rise if he signed the petition. Mr Williams also agreed that he did not know whether other employees were misled by what Mr Brunker said as he did not know what they were thinking.
Mr Williams agreed that on another occasion when Mr Brunker attended at the site on 4 September 2021, he walked into the crib room and said: “Fucking great surprise. It’s the Union” because he was told by workmates, who knew that he had challenged Mr Brunker last time he had attended the site, that there was a surprise for him in the crib room. Mr Williams also agreed that on that occasion he also challenged Mr Brunker when he asked for Mr Brunker to state whether something was true or false and Mr Brunker said: “I believe so”. This caused Mr Williams to say: “Well that’s not an answer. Stop drivelling shit.” Mr Williams denied that he was giving evidence in these proceedings because he does not like the Union. In re-examination Mr Williams said that his recollection of the events is clear in his mind “because I’ve got a good memory for bullshit” although he may have been mistaken about the date on which the events occurred.
Mr MacKellar understands that the CFMMEU conducted a right of entry visit at the Production crib room and Maintenance crib room at the Mine site on 17 July 2021. Mr MacKellar stated that on or around 25 August 2021 he received a call from Ms Chanel Jozsef, whose 20-year-old daughter, Ms Brianna Jozsef (Ms Jozsef), is employed by the Company as a Production Operator at the Mine. Mr MacKellar recalled that Ms Chanel Jozsef advised him that her daughter was very upset after the right of entry visit as she felt that she had been forced to sign a document, and did not know what the document was. Following his discussion with Ms Chanel Jozsef, Mr MacKellar advised Mr Chris McCartney, Head of People and Culture and asked Mr McCartney to ensure that he arranged for someone to follow up with Ms Jozsef to conduct a welfare check.
Regarding flight entitlements, Mr MacKellar stated that there are no commercial airlines that fly to the Mine site. Accordingly, the Company has arranged charter flights for employees who work at the Mine to travel to site. The flights depart from either Townsville or Rockhampton. Mr MacKellar confirmed that MacKellar Mining pays for these charter flights on behalf of employees. This is an entitlement that is provided to all employees who work at the Mine, and it is a term of employees' employment contracts that they be transported from the embarkation point to the Mine. Mr MacKellar was adamant that the Company has no intention of removing the charter flights, nor to require employees to pay for their own tickets on the charter flights. According to Mr MacKellar it has never been suggested to do so nor was it even in contemplation.
Under cross examination, Mr MacKellar maintained that Ms Chanel Jozsef contacted him on or around 25 August 2021, notwithstanding that the right of entry visit her daughter complained about occurred on 17 July 2021. Mr MacKellar said that he had travelled to the United States for work purposes for the period from mid-July to mid-August 2021. According to Mr MacKellar, Ms Jozsef was a new employee to the site, and was told to just sign the document and was “a little bit intimidated, as a 20-year old young girl may be” and was “horrified” after she heard the topic that Mr Brunker was discussing in the crib room. Mr MacKellar said that this information caused him concern and he would be a lot more comfortable with a secret ballot to see what the real number of employees who wish to bargain is.[13] Mr MacKellar also said that his understanding is that the AEC would become involved in such a ballot. Mr MacKellar also said that Ms Jozsef is a third generation employee and that her mother (Ms Chanel Jozsef) and grandfather had worked for the Company.
Mr MacKellar further stated that he spoke to Ms Jozsef directly after his phone call with her mother[14] although later conceded that he wasn’t sure if he called Ms Jozsef or if Ms Jozsef called him and that it may have been the next day.[15] Mr MacKellar accepted that he did not give evidence about this phone call with Ms Jozsef in his written statement and said that he did not know that this was required.
Mr MacKellar also said under cross-examination that he had not revised his direction to Mr McCartney after having spoken directly to Ms Jozsef as he likes his team to continue to follow up in relation to an incident like that. Mr MacKellar confirmed that he did not send any emails to Mr McCartney concerning the subject matter of Ms Jozsef’s complaint. Further, Mr MacKellar said that he did not become involved in the matter until August 2021 as he was overseas at the relevant time. [16]
Mr MacKellar was questioned about correspondence between the CFMMEU and the Company in relation to bargaining, tendered by Mr Brunker, indicating that MacKellar Mining advised on 29 July 2021 that it did not wish to bargain with the CFMMEU owing to newly extended contractual arrangements with Bravus Mining and not having a five year contract. Mr MacKellar said that this was not the sole reason for the Company not wishing to bargain with the CFMMEU. Mr MacKellar also said that if the majority of employees want to deal with an “intermediary” this is the course he will follow despite the fact that in 60 years of business, the Company had enjoyed working directly with employees and resolving issues. Mr MacKellar accepted that the Company did not raise any issue with the conduct of Mr Brunker or in relation to complaints by Ms Jozsef and Mr Williams in the correspondence of 29 July, notwithstanding that the complaints related to Mr Brunker’s conduct on 17 July 2021 and were made on or around 21 July.
Mr MacKellar said that he is not aware of whether the concerns that Mr Brunker and the CFMMEU were misleading employees about flights arose before or after 17 July and agreed that he had not gone out to the workforce to seek to correct the alleged misinformation or misleading conduct. Mr MacKellar also agreed that his primary concern for the purpose of hearing in relation to the Company’s opposition to the making of a majority support determination, was in relation to the right of entry exercised by Mr Brunker on 17 July 2021. In response to a question as to whether his position would change if a majority of employees had already signed the petition before 17 July 2021, Mr MacKellar said that: “Again the Company will follow the wishes of the majority of employees. Whatever date that may be all I am asking for is just to ascertain through a secret ballot that those are the numbers and that there hasn’t, you know, been fearmongering with misinformation.”[17]
Mr MacKellar was also shown the content of the petition signed by employees and agreed that it was all very clear. However, Mr MacKellar maintained that he did not accept that the majority of employees wanted to bargain and that this may have changed because the Company now had a long-term contract giving employees a greater sense of security and he had personally addressed employees and this may have alleviated their fears. Mr MacKellar also said that there are now more employees and the percentage may not be accurate. In response to a question from the Commission, Mr MacKellar agreed that if Ms Jozsef was pressured to sign the petition this was done by a co-worker and there was no evidence that a CFMMEU official had pressured Ms Jozsef.[18]
Ms Ritter stated that on or around 21 July 2021, Mr McCartney, Head of People and Culture at MacKellar Mining contacted her via telephone and advised that Ms Jozsef was very upset after the right of entry visit and had been forced to sign a document and did not know what the document was. Mr McCartney requested that Ms Ritter contact Ms Jozsef to conduct a welfare check.
As instructed by Mr McCartney, Ms Ritter called Ms Jozsef on 21 July 2021 to conduct a welfare check. Ms Ritter advised Ms Jozsef that Senior Management of the Company had notified her of concerns regarding the right of entry on 17 July 2021. Ms Jozef told Ms Ritter that Mr Brunker had told employees in the crib room that the Company would be making employees pay for their own charter flights; that she felt pressured to sign a document presented by the CFMMEU while she was in the crib room; she did not know or understand the document she had signed; she subsequently told her mother about the incident and her mother, who had a longstanding professional relationship with MacKellar, contacted Mr MacKellar to let him know that Ms Jozsef was upset by the incident.
Ms Ritter also addressed statements allegedly made by Mr Brunker during the right of entry on 17 July 2021 as outlined in the evidence of Mr Williams above and responded as follows:
(a) She has not refused to deal with Mr Brunker or the CFMMEU;
(b) She had a number of conversations with Mr Brunker during the course of her employment with MacKellar Mining, working at the Mine. These conversations have mainly related to disciplinary matters in which Mr Brunker was engaged as the employee representative;
(c) On 13 July 2021, she attended a meeting with Mr Brunker and Mr Brad Zillman, to discuss the CFMMEU’s expectations regarding any proposed enterprise agreements should the Company decide to enter into bargaining; and
(d) She has never told Mr Brunker or any CFMMEU representative that the Company was intending to remove the travel benefit for employees who work at the Mine.
Under cross-examination, Ms Ritter agreed that she was not in the crib rooms on any of the occasions when Mr Brunker exercised his right of entry and had not direct knowledge of what occurred in the crib rooms. Ms Ritter maintained that Mr McCartney contacted her on 21 July and that the purpose of his phone call was to advise that Ms Jozsef’s mother had contacted Mr MacKellar and advised that Ms Jozsef was very upset about being forced to sign a document during right of entry and that Mr McCartney requested that she contact Ms Jozsef and conduct a welfare check. Ms Ritter also maintained that Ms Jozsef stated that Mr Brunker told employees that MacKellar Mining would withdraw flights to site and make employees pay for flights. Ms Ritter said that it was her interpretation of the discussion that Ms Jozsef said she felt pressured to sign a document which she did not understand.
Ms Ritter agreed that Mr Brunker had asked for information about pay calculations and said it was not provided because Mr Brunker did not respond to her requests that he provide the names of employees on whose behalf he was seeking the information. Ms Ritter maintained that this was to protect the privacy of employees who are on individual contracts in relation to their pay rates. Ms Ritter also said that she advised Mr Brunker that if individual employees had grievances they could put these in writing to the Company and they would be addressed. Ms Ritter agreed that all employees at various levels are paid the same amount and that it would not be possible to identify individual employees simply from their pay rates. Ms Ritter did not accept the proposition that she did not want to deal with the Union and maintained that Mr Brunker had not answered her reasonable requests for information. Ms Ritter confirmed that no investigation was conducted by MacKellar Mining in relation to the conduct of employees in the crib room on 17 July 2021 as a result of the concerns raised by Ms Jozsef. Ms Ritter also confirmed that she had not contacted Mr Brunker in relation to concerns raised by Ms Jozsef.
In response to the proposition that no attempts were made by the Company to correct statements made by Mr Brunker which it alleged were misleading, Ms Ritter said that this was addressed by Mr MacKellar who attended two pre-start meetings at site and sent out formal communications to employees advising that they would not be paying for flights. Ms Ritter accepted that Mr MacKellar’s communication with employees occurred at a period that was significantly later than the time at which Mr Brunker made the comments. Ms Ritter also said that she had communicated with Mr Brunker on or about 31 July stating that the Company is providing transport for employees to site from embarkation points in Rockhampton and Townsville. Ms Ritter accepted that Mr Brunker had requested a copy of MacKellar Mining’s travel policy and that she had not provided this as she did not believe it was necessary given her clear messaging to Mr Brunker about the Company’s position with respect to travel, communicated in emails.
Ms Ritter accepted that she attended a meeting with Mr Brunker at which Mr Zillman was also present, on or about 13 July. Ms Ritter disagreed with the proposition that either she or Mr Zillman told Mr Brunker that MacKellar Mining was still negotiating with Bravus in relation to flights or that negotiations with Bravus were discussed at all. Ms Ritter did accept that Mr Brunker requested that the enterprise agreement sought by the CFMMEU include a subclause in relation to the provision of flights for employees to and from the site. Ms Ritter did not accept that the Company could change its policy about flights at any time, and maintained that the Company has, and always intends to, provide flights to employees to the Carmichael Coal Mine Project. Later Ms Ritter agreed that the Company could change the policy but reiterated that Mr MacKellar had already provided a written guarantee to employees that charter flights would not be withdrawn and employees would not be paying for their flights.
In re-examination, Ms Ritter was shown an email from Mr Brunker dated 12 June in which he stated that he is a representative of employees pursuant to a dispute settlement procedure and that in the absence of the matter not being resolved, an application would be made to the Fair Work Commission. Ms Ritter said that no such application had been made.
CFMMEU
Mr Brunker stated that he has sought to engage with MacKellar about a range of issues that have been raised with him by employees at the Mine, particularly travel arrangements, remuneration and pay issues and in relation to bargaining. Mr Brunker’s view that it is important to try and get an enterprise agreement in place as soon as reasonably possible as this is better for workers and that workers being organised in a union has benefits including better terms and conditions and better safety and health outcomes.
Between February 2021 and September 2021 Mr Brunker attended the Mine on approximately 13 occasions to hold discussions with employees. At no stage does he recall receiving any complaints from management about his conduct at the Mine. During those visits, Mr Brunker spoke to a large number of workers at the Mine and engaging with them about various issues including pay and conditions at the Mine, individual contracts and potential bargaining.
Mr Brunker stated that workers of the Mine raised issues such as not being given an explanation of the calculations used to make up their payments, not receiving overtime payments (instead being paid the ordinary rate for those hours), not receiving a production bonus despite reaching coal, changes in their contracts relating to travel arrangements, payments for annual and personal leave, conditions at the Mine and the fact that there was no enterprise agreement in place.
Mr Brunker stated that on least two occasions he has requested that MacKellar Mining agree to commence bargaining. On 9 December 2020 he wrote to MacKellar Mining seeking to initiate bargaining for an enterprise agreement. On 15 December 2020, Mr MacKellar responded advising that the Company did not see any reason to commence bargaining because the conditions offered to employees are above the relevant Award. Mr Brunker stated that given the Company’s refusal to bargain, members were becoming increasingly frustrated with the lack of conditions and low pay rates at the Mine. Mr Brunker determined that a petition should be organised to see if a majority of the relevant workers wanted to bargain for an enterprise agreement, and if so, the petition could be used in a majority support application. The petition circulated by the CFMMEU contained the following statement at the top of each page of signatures:
“Bargaining Petition for Production and Engineering Employees – MacKellar Mining Pty Ltd at Carmichael Coal Mine
We, the undersigned, are employed by MacKellar Mining Pty Ltd (“MacKellar”) as production (including operators) and engineering employees at the Carmichael Coal Mine (“Mine”). By signing this petition we confirm that we wish that the terms and conditions of employment for all production and engineering employees, employed by MacKellar at the Mine, to be covered by an enterprise agreement. We request that MacKellar issue a notice of employee representational rights to all production and engineering employees and commence bargaining with our representatives as soon as possible with the goal of including terms and conditions for a stand-alone enterprise agreement.
We acknowledge that if MacKellar does not agree to our request, this petition may be used as evidence by the CFMMEU (Mining and Energy Division) in support of a Majority Support Determination application under s.236 of the Fair Work Act (Cth) 2009”.
On 19 July 2021 Mr Brunker sent a letter to Mr Brad Zillman, MacKellar’s Operations Manager, requesting that MacKellar initiate bargaining. The letter noted that the CFMMEU had circulated a petition and that the CFMMEU thought a majority had supported the petition. On 21 July 2021 Mr Brunker received a response from Ms Ritter advising that Mr MacKellar was in the United States until 30 July 2021 and indicated that a response would be provided upon his return as he was the primary decision maker.
Mr Brunker received a further email from Ms Ritter on 29 July 2021 attaching a letter from Mr MacKellar which stated that MacKellar were still in the process of securing a five-year commercial contract with Bravus Mining and Resources, owner of the Mine, and that they would not be commencing bargaining for a new enterprise agreement until they had certainty over that contract. The letter contained no other reason as to why MacKellar would not commence bargaining at that time. Further, Mr Brunker stated that the letter made no mention of any suggested inappropriate conduct on his part, not did it mention any concerns relating to the petition.
Mr Brunker’s view is that each page of the petition contains a very clear explanation of what the purpose of the petition is, and what those who sign the petition are agreeing with. The wording used in the petition is similar to wording Mr Brunker has used previously at other sites, but also includes an acknowledgement that the petition may be used by the CFMMEU in an application for a majority support determination. The petition called on MacKellar Mining to commence bargaining, which was something the Company has refused to do despite the clear majority of their employees seeking to bargain.
Mr Brunker explained that the petition was signed during the course of four right of entry visits by himself and others, on four separate days including:
(a) 27 June 2021 when Mr Brunker attended both the Production Crib Hut and the Workshop Crib Hut;
(b) 4 July 2021 when Mr Brunker attended the Production Crib Hut with Mr Stephen Smyth, CFMMEU District Presiden and Mr Brodie Brunker, CFMMEU District Board of Management Committee Member, attended the Workshop Crib Hut.
(c) 11 July 2021, when Mr Brunker attended the Production Crib Hut together with Mr Smyth and Mr Michael Howells, CFMMEU District Board of Management Committee Member, attended the Workshop Crib Hut.
(d) 17 July 2021 when Mr Brunker attended the Production Crib Hut and Mr Howell attended the Workshop Crib Hut.
Mr Brunker confirmed that the petition documents were in the presence of one of the above CFMMEU representatives at all times. Prior to attending site, Mr Brunker discussed with each of the other relevant persons the need to ensure a chain of custody over the petition. He also discussed with the other representatives what might be discussed with workers, including the need to explain that the petition was for the purposes of trying to ensure that bargaining would occur. On each visit, where another CFMMEU representative was present, Mr Brunker provided them with copies of the petition on clip boards which they took with them to the relevant area where they were talking to workers. They would then return those to Mr Brunker after the visit.
Mr Brunker recalled that during the right of entry visits, he often went from table to table collecting any signed petitions, answering any questions, and otherwise just talking with the workers. On some occasions he was asked by workers whether or not they could sign the petition as they were labour hire employees. As a result, a number of the workers did not sign the petition, and two who did then crossed out their names. Mr Brunker explained the purpose of the petition and in some cases read out the preamble.
Mr Brunker stated that during each of the right of entry visits employees would come and go, and in most cases they would not be present during the entirety of his time in the crib hut. The crib breaks are staggered so employees have their cribs at different times within a window of time. Mr Brunker further stated that pursuant to the unredacted petition provided to the Commission, 37 employees signed the petition on 17 July 2021. In total, over the four relevant days, 135 of 189 eligible employees signed the petition. Mr Brunker said that he was pretty sure after his visit on 11 July 2021, and before he attended the mine on 17 July 2021, that a majority of relevant employees had signed the petition, but he wanted to try and make sure that all the crews that he could get were included and had an opportunity to sign the petition in the event that MacKellar Mining continued to refuse to bargain. Mr Brunker maintained that there were no further signatures on the petition after 17 July 2021.
Mr Brunker recalled that he arrived together with Mr Michael Howells at the Mine on 17 July 2021. Both were met at the front gate by an escort and were driven in a light vehicle to the workshop crib hut, where Mr Howells exited the vehicle and performed his right of entry in that crib hut. Mr Brunker stayed in the vehicle and was taken to the HV Go Line crib hut (Production Crib Hut). According to Mr Brunker, Mr Howells did not go into the Production Crib Hut.
As with the other occasions when the petition was collected, Mr Brunker provided blank copies for Mr Howells to circulate for signing. Mr Brunker collected the completed petition sheets from Mr Howells at the end of the ROE. Mr Brunker stated that while he was in the Production Crib Hut, he spoke about a number of issues to workers that were present. As with the other occasions on which he circulated the petition, he:
(a) explained the petition, and that it was to try and get MacKellar to commence bargaining.
(b) encouraged those present to read the petition, and to sign it.
(c) did not stand over, threaten, or intimidate anyone into signing the petition.
(d) encouraged those present to pass the petition around for those who wanted to sign it.
(e) spoke about a range of issues that had been raised with me by MacKellar employees, including travel arrangements and remuneration.
(f) explained that the petition was about bargaining for an enterprise agreement that would have terms and conditions. He explained this on a number of occasions during each visit, including at the beginning. This included my reading out the preamble that is also at the top of the petition on each page.
(g) was asked questions by those present who had concerns that MacKellar Mining might be provided a copy or told they had signed the petition. Many of those asking the questions specifically asked about the reference to the petition being used as evidence in the preamble. When asked those questions he explained that the CFMMEU would seek to ensure that the names of those who signed would only be provided to the Commission and not MacKellar Mining.
(h) explained that at other sites, where flights were not locked into enterprise agreements, that those arrangements could change. He specifically referenced Clermont and Grosvenor Mines where he believed that had happened recently.
(i) spoke to some calculations he had prepared in relation to the pay rates, comparing them to the Award and BHP’s in-house labour hire provider Operation Services.
(j) passed around some copies of a comparison between an earlier version of an individual contract at the Mine, and a more recent one, so far as they deal with the travel arrangements. Mr Brunker spoke about the different wording in the contract and also relayed the content of his email exchanges with Ms Ritter about the issue.
After speaking with the workers, Mr Brunker stated that he left the crib hut. His recollection is that the escort was waiting outside the production crib hut at that time. He was then driven to the workshop crib hut, where Mr Howells was collected, before they were both driven to the front gate.
Mr Brunker’s understanding is that there were approximately 28 employees on the relevant shift. There were also some civil contractors and some labour hire workers. The workers would come and go as they took their crib breaks. Mr Brunker understands that crib breaks are 30 minutes long, although some would stay for less time, for example those who smoke. Others would stay longer, for example, if waiting for equipment to operate, but that was an exception.
Mr Brunker stated that he was very clear about the purpose of the petition and did not say anything that was inconsistent with the preamble on the petition. At no time did he simply say that the petition was to get more money or secure flights. Mr Brunker accepted that he did talk about those subjects but maintained that he did not do so in a way that was confusing or misled anyone about the purpose of the petition.
Mr Brunker recalled that on approximately 1 September 2021 he was contacted by an employee at the Mine advising that the CEO of MacKellar Mining had announced a five-year contract. Mr Brunker understood that a statement was distributed by MacKellar Mining which reassured staff that employees would not have to pay for flights. On 4 September 2021 Mr Brunker attended the Mine to undertake another right of entry. Specifically, Mr Brunker attended the Production crib hut. Mr Brunker explained that at a late stage of his right of entry window he was trying to make sure that he would be able to speak to the last of the relevant crew who hadn’t yet had their crib breaks. According to Mr Brunker. Mr Williams entered the room. Mr Brunker recalled to the best of his knowledge that Mr Williams said in a loud voice: “oh great, the fucking union is here again”.
Mr Brunker’s view is that Mr Williams was clearly hostile towards himself and the CFMMEU. In an attempt not to engage or provoke Mr Williams, Mr Brunker deliberately walked in front of him so that his back was towards Mr Williams and he was facing other workers. According to Mr Brunker, Mr Williams yelled out in a loud voice: “I don’t want to read this shit on my crib break”. Mr Brunker took him to be referring to some pamphlets that he had passed around for Unity Bank and Union Shopper. Mr Brunker then turned to Mr Williams and said words to the effect of “you don’t have to read it” and “I didn’t ask you to read it”. Mr Brunker said that he leant over and moved the pamphlets along the table so that they were not near Mr Williams.
Mr Brunker stated that while he was talking to the other workers, Mr Williams interrupted on a number of occasions, challenging Mr Brunker about flights, which he was not talking about at the time. Mr Brunker recalled answering Mr Williams saying that he did not think the contracts were clear on flights. Mr Brunker’s evidence is that Mr Williams then changed the subject to pay rates and suggestions made by Mr Brunker including that he did not think pay rates were up to the Award rates given increases in Award rates in July. Mr Williams said words to the effect of: “if you show they are paying below the Award then they will backpay”. Mr Brunker replied with words to the effect of: “thanks Mick, I’ll take you with me when we talk to HR”. Mr Williams then grunted and left the room.
According to Mr Brunker at no time during the right of entry visit did any employee approach him or otherwise suggest that he had misled them, that they wanted their name taken off the petition, or anything to that effect. No other person present said anything to indicate that they agreed with Mr Williams, nor suggested that they did not understand the petition that had previously been circulated or to suggest that they had changed their minds.
Based on his interactions with Mr Williams, Mr Brunker’s belief is that Mr Williams is clearly not a fan of the CFMMEU, does not agree with issues that he discussed and does not hold the same view as many of the workers who had raised issues with him about the Mine and the Company. Mr Brunker appreciates that that Mr Williams is entitled to his own opinions, however based on his interaction with other workers, Mr Brunker does not believe that Mr Williams’ views are consistent with the views of the vast majority of workforce.
Mr Bunker’s experience from engaging with workers at the Mine, and the feedback received from other CFMMEU representatives that attended the Mine, was that an overwhelming majority of workers spoken to wanted to bargain for an enterprise agreement and wanted MacKellar Mining to enter into discussions.
Mr Brunker referred to Mr MacKellar’s statement that he regularly visits the Mine and has not heard any suggestion about employee’s being dissatisfied with their terms and conditions. Mr Brunker stated that this was a “completely incorrect view” of the workforce at the Mine. Having attended the Mine and exercised right of entry on a significant number of occasions, Mr Brunker has been approached by employees with concerns, including that the remuneration was insufficient, flights to and from the Mine, and that they had no certainty relating to their future employment. Mr Brunker’s view was that employees were eager to have an enterprise agreement and that was reflected by their signing of the petition. Mr Brunker also said that there were no statements made to him by employees suggesting satisfaction with their terms and conditions. Instead, a number of workers raised the issue of bargaining and wanting to negotiate. Questions were also directed at why MacKellar Mining was dragging its feet in relation to bargaining for an agreement.
Regarding Mr MacKellar’s evidence about flights, Mr Brunker stated that while the Company may charter the flights, that does not mean they could not attempt to have employees pay for them. Indeed, Mr Brunker understood that similar things have happened elsewhere on other sites where workers were required to pay for part or all of their travel on charter flights. Mr Brunker also stated that he does not believe that the newer employment contracts include an explicit term providing that employee will not have to pay for flights, or that MacKellar will pay for them. While the Schedule to the new contract provides an “embarkation point” of Rockhampton or Townsville, the contract has clearly changed from the previous version in a manner which excludes the following term that was in the contract previously:
“Transport to and from site will be provided from a designated pickup location at either Rockhampton or Townsville and in accordance with our policy.
Travel to and from the above pickup locations will be at your own expense.”
Mr Brunker referred to Ms Ritter’s evidence that he had sent her an email, copied to Mr Zillman, on 31 May 2021 advising that he had received a number of phone calls from employees about pay rates in their new contracts. In that email he requested information on the relevant calculations and a response to other questions about the contracts.
Also on 31 May 2021 Mr Brunker sent a further email to Ms Ritter noting that there was no reference to flights being paid for under the heading “other benefits” in the new contracts. In the response, Ms Ritter referred to clause 9 of the employment contracts. Mr Brunker noted that Ms Ritter’s response indicated that all the relevant contracts were the same. Mr Brunker responded to Ms Ritter again by email on 31 May 2021 noting that he had read clause 9 but that it did not say that the flights were a benefit, and it did not clearly spell out that the flights would be paid for by MacKellar. On the same day Ms Ritter provided a further response referring to clause 12 and clause 9.2 and to MacKellar’s travel policy. Ms Ritter stated that the wording was not new, and it was the same in the old contracts. Mr Brunker exchanged further emails with Ms Ritter, including a request for the relevant travel policy, which he contends that Ms Ritter refused to provide. Mr Brunker also sent an email to Ms Ritter with the following request:
“…can you provide the section that states Travel is at the cost of MacKellar and explain what guarantee do the employees have that MacKellar won’t unilaterally change the Policy?”
Additionally, Mr Brunker discussed the matter of travel arrangements with Ms Ritter at a meeting he attended via video link with on 13 July 2021. Mr Zillman was also present. Mr Brunker stated that the main purpose of the meeting was to discuss what the potentially agreeable terms and conditions for an enterprise agreement might look like. MacKellar Mining initiated that meeting and the meeting involved discussion of the views of the CFMMEU and the Company as to the content of any enterprise agreement. It was not simply a matter of discussing the CFMMEU’s expectations and Mr Brunker made clear that such discussions were absolutely subject to any claims that might come from the workers at the Mine.
Mr Brunker recalled that Ms Ritter made a statement about flights being something that they were in negotiations about with Bravus. The statement was made in the context of discussions about what the CFMMEU would likely be seeking to be included in any enterprise agreement. Mr Brunker expressed his view that flights should be included.
Mr Brunker disputed Ms Ritter’s evidence that he denied meeting or having discussions with her. Further, Mr Brunker maintained that consistent with discussions he held with various employees, MacKellar Mining refused to provide him with information relating to the calculation of wages and entitlements. Mr Brunker agreed that Ms Ritter did not say that MacKellar was planning to remove the travel benefit, and said that he did not say this to employees. Mr Brunker said that he simply raised the possibility that they might, and also having such an entitlement in an enterprise agreement would be more secure.
Regarding Mr Williams’ evidence, Mr Brunker recalled seeing Mr Williams in the Production Crib Room on 17 July 2021 but not the precise time, likely after a number of other workers were already in the room. Mr Brunker also disputed various aspects of Mr Williams’ evidence and in particular said that it was Mr Williams who engaged with him and said words to the effect of, “what’s this shit about”. Mr Brunker explained to Mr Williams that it was a petition and how it would be used to try and negotiate an agreement. Mr Williams replied to the effect of “I negotiate my own contract”. Mr Brunker recalled that at one point Mr Williams appeared to read the petition and that the exchange with Mr Williams was “pretty short”.
Mr Brunker stated that after observing Mr Williams’ mannerisms, he appeared to be aggressive from the beginning of their brief exchange. In accordance with Mr Brunker’s training in organising he knew that there is little point in engaging with someone like Mr Williams if they are not receptive initially and that it better just to end the exchange and not escalate the tension. Mr Brunker did not continue the conversation with Mr Williams and recalled that other employees sitting around him were shaking their heads with one employee saying words to the effect of: “don’t worry about that dickhead”.
Mr Brunker denied that he said anything to suggest the CFMMEU would get employees more money as any sort of certainty. According to Mr Brunker, the prospect of better terms and conditions was the subject of discussion, but he never put it in terms of a certain outcome. Mr Brunker noted that in his experience he has learnt not to overcommit or give false hope as doing so is counterproductive to organising attempts. Mr Brunker also denied telling employees that they should sign the petition so the CFMMEU could get them their own EBA and more money, as alleged by Mr Williams. When discussing enterprise agreements with workers, Mr Brunker said that he is always clear that it is not him or the CFMMEU that ultimately decides what will be in an agreement, and that they will need to be involved. Mr Brunker provided the example of a line that he often uses being: “it is not fat guts Bunker’s EA, it is yours and you must be involved”. Regarding the statements that Mr Williams alleges that Mr Brunker made to employees in the crib room, Mr Brunker stated as follows:
(a) He did not say the words “[MacKellar] are going to take your flights and make you pay for your own flights because they’re not in your contract”
(b) He did not say the words “You’ll lose your flights and they will make you pay to go to work”. Mr Brunker admits he said that there was no guarantee of the flights in the future, saying words to the effect of “it is possible they will make you pay for flights if it is not in your contract”. Mr Brunker also explained the emails between himself and Ms Ritter and the comment she made about MacKellar’s negotiations with Bravus
(c) He does not accept saying the exact words described by Mr Williams regarding “the good people at Clermont” however agreed that he said words to a similar effect. CFMMEU members at Clermont had recently contacted him and reported that they had to pay part of the flight costs which they didn’t previously have to.
(d) He did not say the words “they shouldn’t have taken the 15% night shift allowance off you. They had no right”. Instead, the words he used to best of his recollection were to the effect of: “the 15% rolled into the agreement is a slight benefit”. He also read out figures that had been prepared in comparison to the Award rates and said words to the effect that “that will also benefit your super”.
(e) He did not say the words “I’ve challenged Sunshine Coast and they won’t talk”. He maintained that he never said that MacKellar would not talk to him. He did recall explaining at various times during the discussions while exercising his right of entry, that flights should be guaranteed in an enterprise agreement.
(f) He did not say the words “I’ve been trying to talk to Sunshine Coast and they don’t want anything to do with me”. He noted MacKellar had spoken to him, including the video conference with Mr Ritter and Mr Zillman.
(g) He did explain to employees that MacKellar had refused to provide information on pay calculations, because that was true. Mr Brunker explained he was specifically referring to pay calculations.
Mr Brunker accepted that he did mention Ms Ritter during his discussions. Mr Brunker explained that the CFMMEU was trying to get information on pay calculations however those requests were being refused. He maintained that he did not say that Ms Ritter and MacKellar Mining had decided to remove flight entitlements. However, he did talk about the difference between the words in the two versions of the individual contracts and the possibility that MacKellar Mining might decide not to pay for flights, including examples of other places where similar things had happened. Mr Brunker believed it was clear to employees that MacKellar Mining had not decided to remove flights already. He did not suggest that the Company had made such a decision and did not say words indicating that. Mr Brunker did talk about the possibility that that might occur and the benefit of an enterprise agreement term which would ensure flights were locked in.
Mr Brunker denied saying the words, “the good people of Clermont” as alleged by Mr Williams. He did explain that at Clermont some workers were only being paid an allowance towards flights and that they were being bused out to Clermont from Emerald. Further, Mr Brunker denied saying words to the effect that MacKellar had taken the nightshift allowance off the workers. Mr Brunker did speak about the allowance being rolled into the rate, explained that the rate was close to the Award and possibly below it given increases to the Award, that the rates of pay were close to operation services, and that rates of pay might be improved if an enterprise agreement was bargained.
In response to Mr Williams’ evidence that other employees may have been misled by Mr Brunker’s statements, Mr Brunker stated that he observed no support from other workers to any statements made by Mr Williams. Mr Brunker recalled that Mr Williams was only in the crib room for approximately 10 to 15 minutes. Mr Brunker agreed with Mr Williams that most of the employees in the crib room signed the petition. Mr Brunker’s experience was that they were eager to sign it, some asked further questions such as “what does it mean by used as evidence?” and “will management see our names?” after reading the preamble. Mr Brunker’s view was that there were no signs that anyone did not understand what they were signing.
Regarding the evidence of Ms Jozsef, Mr Brunker stated that he could not specifically recall meeting Ms Jozsef and it was unlikely he had met her during previous right of entry visits given her short period of service at the Mine. Mr Brunker agreed with Ms Jozsef that on 17 July 2021, there were approximately 25 workers in the crib room, at least during his presence and that it was quite possible that he was not talking when she arrived in the room.
Mr Brunker maintained that at no time did he observe any worker forcing anyone else to sign the petition or acting in a manner he thought was inappropriate. Mr Brunker and some workers passed the petition around and encouraged people to sign it. Mr Brunker does not accept that there was any behaviour that was inappropriate or that anyone was put in a position where they had to sign it under duress. Nobody was threatened or anything of that nature. Mr Brunker denies saying the words, “sign it, we’ve all signed it”. Mr Brunker referred to Ms Jozsef’s statement that once most people in the room had signed the piece of paper, Mr Brunker started speaking. Mr Brunker stated that he spoke at various times during the visit and did not wait until the end to speak.
Mr Brunker stated that at various times during the four relevant right of entry visits, employees asked him questions about the petition. His general experience was that most did not and that they appeared to read and sign the petition and had no issue understanding it. Many were very keen to sign it. Some others read it and declined to sign the petition. There were a number across the crews who initially declined to sign the petition saying that they were worried about retribution and being identified to MacKellar Mining after having read the reference to it being used as evidence in the preamble. Many of those people ended up signing the petition when he explained that the CFMMEU’s intention was to try and keep the names from being provided other than to the Commission.
Further, Mr Brunker stated that the method he generally used to pass the petition around was that he had two clip boards and passed each to people in the crib room. He then left it for them to pass the clip boards around. From time to time, he would collect the clip boards and offer them to others in the room. Mr Brunker said that he most definitely did not just talk about flights and wages, and he expressly talked about the petition and it being for the purpose of trying to get MacKellar Mining to bargain. Mr Brunker also often noted that MacKellar Mining had so far refused to bargain for an enterprise agreement.
Mr Brunker denied that he said that the petition was about wages and flights but accepted that he did speak about those issues. Further, Mr Brunker stated that at all times he welcomed any questions that workers had. Mr Brunker explained that a big part of his job is talking to workers, listening to them, and trying to answer any questions they have. He answered questions from workers at various times and engaged with them. Mr Brunker does not believe that at any time he acted in a way that discouraged them from doing that, or in a way that unfairly pressured them to sign the petition.
Mr Brunker does not agree that he said the words alleged by Ms Jozsef regarding a new contract and a good possibility that flights will not be paid for. Mr Brunker noted that many employees that he had spoken to had recently been issued contracts. Mr Brunker stated that he did talk about the changes in wording between the older and more recent contracts. Mr Brunker also spoke about the comments made by Ms Ritter to the effect that MacKellar Mining was still in discussions with Bravus, including about travel arrangements. Mr Brunker noted that that this would only have occurred on the visit on 17 July, as the meeting he had with Ms Ritter and Mr Zillman was on 13 July, by which time, the petition had already been signed by a majority, although Mr Brunker was unsure of this at the time,
Mr Brunker agreed with Ms Jozsef that some of the workers were angry about various issues, including the recent contracts, flights, and pay rates. Some expressed the view that they were unhappy with the wording changes about travel when he went through the clauses in the old and new contracts with them. Mr Brunker referred to Ms Jozsef’s statement that she could not recall if he said anything about an enterprise agreement or bargaining and confirmed that he did not fact do so, including reading the petition out loud. Mr Brunker spoke about the potential benefits of an enterprise agreement in relation to both pay rates and flights. Mr Brunker said that he had no reason to doubt that Ms Jozsef was in the crib room, but he was unsure how long, or precisely when, she would have been there. Mr Brunker accepted that he did not read the words in the petition to each employee separately. He believed that the words the petition were clear, that those signing it were perfectly able to make a decision whether they wanted to sign it or not, and that anyone that might have wanted to ask questions had the opportunity to do that.
Mr Brunker said that he is sorry that Ms Jozsef feels she was pressured into signing the petition. However, Mr Brunker did not observe anything that suggested any undue pressure was applied to anyone to sign it. Mr Brunker believes that the workers present were perfectly able to make a decision on whether or not to sign the petition and that the words in the petition were very clear and that all of those who signed the petition, or were considering whether to do so, had the opportunity to read it.
Mr Brunker has spoken to a number of employees since 17 July, including during a recent right of entry visit. Aside from his interaction with Mr Williams, no other employees have suggested to Mr Brunker that they wanted to remove their names from the petition, that they did not understand its purpose, or anything of that nature. In fact, a number of employees have asked him about when enterprise agreement bargaining might take place, and about the application to the Commission. Mr Brunker said that he has had to explain to a number of the workers that MacKellar Mining is still refusing to bargain despite a significant majority signing the petition. Nobody he has spoken to said or did anything to suggest that they were surprised or did not understand what the petition was being used for.
Mr Brunker was unaware as to the apparent concerns or complaint by Ms Jozsef, until he read her statement in these proceedings. At no time was he contacted by representatives of MacKellar expressing concern about his conduct during the right of entry visits, or statements he was making. Mr Brunker believes that the clear majority of relevant employees want to bargain for an enterprise agreement and that this is evidenced by the petition. Mr Bunker also believes that the petition sets out very clearly the basis on which relevant employees signed the petition. Mr Brunker’s view was that the process of obtaining signatures on the petition was conducted appropriately and without it being presented in a way that was misleading or in a way that put any form of unfair pressure on the workers to sign the petition. Mr Brunker had primary responsibility for collecting the signatures on the petition and believes that the Commission can be satisfied that a majority of the relevant employees want to bargain for an enterprise agreement.
Under cross-examination, Mr Brunker agreed that the Carmichael Project is a large new project with a large number of coal mine workers eligible to join the CFMMEU. Mr Brunker also agreed that the Project is a big step-up for MacKellar Mining and that the he and the Union have not had a strong connection with the Company to date. Further, Mr Brunker agreed that part of his role is to look after Carmichael and his objective is to persuade employees of the Company to join the Union. Mr Brunker has given priority to visiting the Project and has been accompanied from time to time by Mr Smyth and other Union officials. Mr Brunker agreed that the trip and from the site is three hours each way and that is a large investment of his time and that the Union’s objective is to organise the workforce and get an enterprise agreement in place. Mr Brunker added that a lot of members of the Union have contacted him and requested that he organise at the site.
Mr Brunker agreed that he had stated that MacKellar Mining refused to provide him with information and that he advised employees of this. In response to the proposition that the Company had not refused to provide information but had simply sought details of the employees he was representing, Mr Brunker said that he did not provide that information out of fear of retribution against the employees. Mr Brunker agreed that he had “quite possibly” told employees that if they provided information the Company would fire them and in response to the proposition that this was “a disgraceful lie” Mr Brunker said that labour hire or contract employees know that if they put their hands up they risk being “shot”. Mr Brunker maintained that this was his experience with labour hire and contractor employees but accepted that he had not previously dealt with MacKellar Mining. Mr Brunker accepted that his statement that the Company had refused to provide him with information was untrue and that what the Company had asked was that he establish his authority to receive information.
Mr Brunker also accepted that he had raised issues such as wages, bonuses, overtime and changes to employees’ contracts which had not been raised by employees and that he had raised these issues in the context of them being matters that could be fixed in an enterprise agreement. Mr Brunker agreed that he had brought other senior officials of the CFMMEU to the site to assist with the petition, including Mr Smythe, but maintained that this was not a show of strength but simply because he had asked for volunteers to assist at the site. Mr Brunker rejected the proposition that employees he spoke to were long term employees of MacKellar Mining and not experienced with petitions and enterprise bargaining, maintaining that most of the employees came from other labour hire or contract mining companies and were familiar with these processes.
Mr Brunker accepted that employees would see him as being experienced in industrial relations and would give a lot of weight to what he said. Mr Brunker agreed that it might not have been easy for some employees to refuse to sign the petition but maintained that there were employees who refused and some who went home and discussed it with partners. Mr Brunker did not simply put the petition on the table and let people sign it if they wanted to because of issues associated with chain of custody and ensuring that only employees of MacKellar Mining signed it. While the petition may have been at the end of a crib room table, Union officials were in the room at the time. Employees also handed the petition around between themselves to circulate it around a table, but employees were not given autonomy to carry the petition around and get other people to sign it. Mr Brunker accepted that Ms Jozsef’s name should not be on the petition and that she signed the petition without knowing what it was. Mr Brunker said that he struggled with that evidence but accepted that this was Ms Jozsef’s statement. Mr Brunker also said that he did not understand how someone could sign something that they did not understand.
In response to a question about why he was telling employees that there was a risk that they would lose their flights, Mr Brunker said that he never said that they would lose flights, but he had two mine sites where flights were not in enterprise agreements or in contracts and when there was a downturn the Company told employees that they would be paid a subsidy and the employees would have to pay for their own flights. In response to the proposition that the employees he was referring to did not have their entitlement to flights in their contracts and that MacKellar Mining employees were in a different position, Mr Brunker said that their new contracts did not provide for flights. Mr Brunker also said that he was using this as an example of why it is important to have entitlements in enterprise agreements to secure them. Mr Brunker denied that he said that there was a new contract coming and that there was a really good possibility that employees would lose their flights. Mr Brunker accepted that he intended those employees of MacKellar Mining he spoke to would believe there was a risk that they would lose their flight benefits. In response to the proposition that it would be impossible for employees to access the site if charter flights were removed, Mr Brunker said that there was a possibility that employees could be required to drive in and out from Charters Towers or Emerald and maintained that subcontractors already make their own way to site from these and other regional centres.
Mr Brunker accepted that for employees to be told that their travel arrangements were at risk would be very confronting but denied that this was his intention. Mr Brunker also said that concern about losing payment for Christmas Day and Boxing Day and being paid award rates, was more confronting. Mr Brunker agreed that he was telling employees these things because he wanted them to sign a petition and agree to enterprise bargaining and to give employees an example of what needed to be fixed in their enterprise agreement to lock in their terms and conditions of employment.
Mr Brunker maintained that provisions about flights had been left out of new employment contracts given to employees. When shown the old and new contracts during cross-examination, Mr Brunker accepted that the new contract contains the same provisions about flights as are found in the old contract and that he had shown employees a schedule containing only part of the provision in the new contract. In this regard, clause 9 of the new contract provides as follows:
The CFMMEU submitted that not only is the petition in clear and unambiguous terms, it has a bold heading on each page which clearly identifies its purpose. The CFMMEU’s position is that in the present case there is no need for a ballot and that the Commission can be satisfied that the determination sought should be made and that a majority of the relevant employees want to bargain. The CFMMEU contended that the evidence supporting their position is in fact overwhelming.
The petition is an entirely appropriate basis on which the FWC can be satisfied as to the will of the majority of the relevant employees.[28] Over 70% of relevant employees signed the petition, which clearly records the purpose of the petition and confirms the will of those employees. It also contains words that those signing acknowledge how the petition would be used. The CFMMEU noted that MacKellar Mining has refused to accept the will of the relevant employees despite their very clear message that they want to bargain for an enterprise agreement.
The CFMMEU submitted that a majority of the relevant employees at the Mine had signed the petition prior to 17 July 2021. On that basis, and having regard to the evidence of Mr Brunker regarding his previous right of entry visits and those conducted by other CFMMEU representatives, the Commission can be satisfied that a majority of the employees want to bargain (regardless of whether it might otherwise accept the submissions and evidence of the respondent).
The CFMMEU relied on Mr Brunker’s evidence, in addition to the petition itself, as establishing a proper basis on which the Commission can be satisfied that a majority of the relevant employees want to bargain. Notably:
(a) The petition itself is drafted in a manner that is unquestionably clear.
(b) Mr Brunker, and where applicable other representatives of the CFMMEU, explained the purpose of the petition to employees.
(c) Mr Brunker and the CFMMEU maintained appropriate custody of the petition.
(d) There is significant evidence of employees being informed of the purpose of the petition, notwithstanding the already clear and unambiguous words contained in the petition.
The CFMMEU’s view is that the objections raised by MacKellar Mining are without merit and do not disclose a reasonable or proper basis on which the Commission should not be satisfied that a majority support determination should be made. The CFMMEU submitted that the authorities relied upon by MacKellar Mining merely contain obiter statements as to the possible basis on which the Commission might not be satisfied. Even the statements of the Company’s witnesses do not establish any credible basis on which the will of those who signed the petition could be seriously questioned.
The CFMMEU acknowledged that there might be circumstances in which the Commission would not be satisfied having regard to other communications made to employees, however this is clearly not such a case. There is no reliable evidence suggesting any real form of duress or misleading conduct that could reasonably be said to cast real doubt upon the will of the employees who signed the petition. Despite the various submissions made by MacKellar Mining, the totality of the evidence supporting the objection is as follows:
(a) One employee, out of 135 employees that signed the petition, did so without reading it.
(b) One employee who says he did not read the petition, chose not to sign it.
(c) Despite having the opportunity to do so, MacKellar Mining raised no concerns with Mr Brunker about its purported concerns as to the right of entry conducted on 17 July 2021
(d) The evidence of witnesses for the Company that is said to support the complaints and/or objections of MacKellar as to the reliability of the petition relate only to the right of entry visit conducted on 17 July 2021, and only in the production crib room.
The CFMMEU highlighted the fact that Mr Brunker denies the vast majority of the statements alleged to be attributable to him. However, even if all the assertions made by MacKellar’s witness were correct, which they are not, they disclose no basis on which the petition can be said to be an unreliable reflection as to the will of the majority of the relevant employees.
The words on the petition are so clear and unambiguous that, even having regard to the speculative heresay evidence as to the will of employees not called by MacKellar Mining to give evidence, the Commission can be satisfied that a majority of the relevant employees want to bargain. According to the CFMMEU, MacKellar Mining is attempting to delay and avoid the commencement of bargaining contrary to the clear will of the relevant employees. In effect, the Company’s submission is that its employees are incapable of reading and understanding the petition.
The CFMMEU contended that the evidence of witnesses for MacKellar Mining should be treated with extreme caution. Firstly, the CFMMEU submitted that it is apparent that MacKellar Mining has, following attempts by the CFMMEU to have the Company agree to commence bargaining, given reasons as to why it would not commence bargaining, that were, at best, incomplete. Notably, MacKellar Mining did not raise any concerns regarding the ROE that occurred on 17 July 2021 when it provided a response to the CFMMEU on 29 July 2021.
The CFMMEU submitted that the statements filed by MacKellar Mining contain no suggestion or evidence as to real alleged impropriety, misleading conduct, deceit, undue pressure or similar, other than on 17 July 2021. Whilst noting that any such allegations are, in the CFMMEU’s submission, totally misconceived and factually incorrect, it is the case that a majority of the relevant employees had signed the petition prior to 17 July 2021. This is confirmed by the evidence of Mr Brunker that 37 workers signed the petition on 17 July 2021.
As noted previously, the petition includes the names and signatures of 135 or 189 relevant employees as determined by the Commission having regard to the petition provided by the CFMMEU and the list of employees provided by MacKellar. A majority of the total relevant employees would be 95. When 37 is subtracted from 135, 98 workers had signed the petition prior to 17 July 2021. That is a majority of the relevant employees (notwithstanding the applicant asserts that there is no proper basis to the allegations relating to 17 July 2021).
Regarding s.237(2)(d) of the Act, the CFMMEU submitted that it is reasonable in all the circumstances to make the determination. Mr Bunker’s statement is very clear as to the manner in which the petition was collected. There was no inappropriate, deceptive, or misleading conduct by the CFMMEU or Mr Brunker. The CFMMEU contended that even the statements filed by MacKellar Mining do not support the contentions made by the Company as to purported deception or inappropriate conduct. At best, they disclose disagreement or the holding of different opinions.
The CFMMEU also submitted that there is nothing improper or misleading about Mr Brunker expressing the views he holds as to matters impacting the employment of the relevant employees, nor in talking about such issues at the same time as seeking signatures to a petition. Mr Brunker did not make statements that were untrue, and even if that were the case, the respondent’s position presupposes that workers are incapable of making their own decisions on the truth or otherwise of statement made. The petition is clear and unambiguous. There is no evidence that any employee that signed the petition, aside from Ms Jozsef, did not understand its purpose.
Finally, regarding the method that the Commission considers appropriate to work out whether a majority of employees want to bargain, the CFMMEU submitted that it is unnecessary for the AEC to be used to work out whether a majority of the relevant employees want to bargain. Not only is it wholly unnecessary given the petition and relevant evidence, it would also cause significant undue delay and would simply serve to indulge the efforts of MacKellar to avoid and delay bargaining. Whilst it has been entitled to refuse to bargain to date, the AEC should not be used to further the interests of MacKellar in avoiding bargaining given the clear evidence of majority support available to the Commission.
Consideration
Issues in dispute
Section 237(1) of the Act provides that the Commission must make a determination if an application is made and it is satisfied of the matters set out in s. 237(2). In the present case, the CFMMEU has made an application for a majority support determination. It is common ground that s. 237(2)(b) and (c) are satisfied. MacKellar Mining has not agreed to bargain and does not dispute that the group of employees that are the subject of the determination sought by the CFMMEU would be fairly chosen if the determination was made.
The issues in dispute are whether a majority of the employees who are employed by the employer at a time determined by the Commission and who will be covered by the agreement, want to bargain, and whether it is reasonable in all the circumstances, to make the determination. Signatures on the petition relied on by the CFMMEU to establish that a majority of employees want to bargain, were collected in July 2021. The application was made on 3 August 2021 and heard on 14 and 28 September 2021. The decision was made on 10 January 2022. I was satisfied that at the date the matter was heard that a majority of employees wanted to bargain.
There was no evidence as to a significant increase or reduction in the numbers of employees who are employed by MacKellar Mining at the Carmichael Mine either before or after the petition was finalised or at or after the hearing. No objection was raised by MacKellar Mining on this ground and the evidence was that the increase in the numbers of employees to undertake what is the Company’s largest contract to date, had already occurred when the petition was circulated, and the hearing was conducted.
Approach to determining majority support
I consider that the method of using a petition to work out whether a majority of employees want to bargain is an appropriate method in the present case. As Deputy President Colman observed in National Union of Workers v Lovisa Pty Limited[29], the broad discretion afforded to the Commission to use any method it considers appropriate, contemplates a wide variety of possibilities and clearly a vote is not required, as other provision in the Act mandate a vote and s. 237 does not. The Deputy President in that case also observed that:
“Petitions seem to me to be one obvious way to demonstrate employee support for the purposes of s. 237. A petition can be collated quickly, simply and informally. It can provide a sound evidentiary basis for the Commission to assess whether there is majority support for bargaining. It is in principle a method of assessment of majority support that accords with the object of Part 2 – 4 to provide a ‘simple, flexible and fair framework that enables collective bargaining in good faith’ (s. 171(a)), and the requirement in s. 577 that the Commission perform its functions and exercise its powers in a manner that is quick and informal, avoiding unnecessary technicalities (s. 577(a) and (b).”[30]
In the present case, the relevant employees are located at a mine site which is a six-hour round trip by road from Emerald. The employees work an even time roster comprised of cycles of day and night shifts where they are at work for 7 days and have 7 days off. To communicate with employees CFMMEU officials travel to the mine site by road and exercise right of entry. For purposes associated with ascertaining the support of employees for an enterprise agreement, CFMMEU officials may only hold discussions with employees during non-working time such as crib and meal breaks. In those circumstances, a petition is an entirely reasonable method of establishing whether the majority of employees support bargaining.
Consistent with my usual practice where a union relies on a petition to establish majority support, I issued Directions requiring that the CFMMEU provide to the Commission an unredacted copy of the petition said to have been signed by employees. I also requested that MacKellar Mining provide a list of names of all employees in the group described by the CFMMEU in the application. The CFMMEU provided a petition containing 135 signatures, alongside handwritten names and addresses of the signatories and the date upon which the petition was signed by each signatory. The Company provided a list of 189 employees.
An analysis was conducted of this information and I was satisfied that all 135 names on the petition appear on the list provided by the Company. My Associate corresponded with the parties informing them of the results of this analysis and my provisional view that a majority of the relevant employees wanted to bargain. A redacted version of the petition was provided to the legal representative for MacKellar Mining. I considered this to be an appropriate method to work out whether a majority of employees want to bargain in the circumstances of this case including the context in which the employees work, the nature of their work and the number of employees involved.
The statement that explains the petition and appears on each of the pages of signatories, is self-explanatory. I do not accept that there is any possibility that a person who read the explanation at the top of each page of the petition, would not have understood the purpose of the petition and what they were signing. The employees in question are coal mine workers. As such they work in a high-risk environment with strict legislative requirements relating to workplace health and safety. Routinely, coal mine workers complete risk assessments before they commence work and undertake training on standard operating procedures. There is no evidence of language or literacy issues among the workforce at the Carmichael Mine to indicate that they would have had any issue understanding the petition.
There is also no evidence of any issues with custody or control of the petition during the process by which the signatures of employees were obtained. I am satisfied that Mr Brunker’s evidence establishes that he, or officials of the CFMMEU who attended the Carmichael site with Mr Brunker, maintained custody of the petition at all times and that it is not necessary to inquire further into the process by which the signatures were obtained.
MacKellar Mining did not object to the use of a petition per se but rather, submitted that the Commission could not be satisfied that the petition genuinely reflects the views of the employees. Essentially the case advanced by MacKellar Mining is that Mr Brunker misled employees so that their signatures were effectively obtained by deceptive conduct on the part of Mr Brunker. While not seeking to obtain an unredacted copy of the petition, MacKellar Mining also asserted that the Company could not cross-examine a petition.
There are few circumstances I can conceive of where it would be appropriate to provide an unredacted petition signed by employees, indicating their support for the commencement of enterprise bargaining with their employer, to their employer. I share the view of Deputy President Colman expressed in Lovisa that it would be natural for employee-petitioners to be apprehensive about their identities being revealed to their employer, given they are taking a position that is aligned with a union in an effort to have their employer agree to something it evidently does not want to do, namely bargain.[31] Employees are entitled to freedom of association – to join or not to join unions. Employees are not obligated to inform employers whether they are or are not union members, or whether they support a union in its endeavours to obtain an enterprise agreement with their employer. It is entirely reasonable and understandable that employees who are union members or who support a union seeking to negotiate an enterprise agreement, may wish to maintain confidentiality.
Most issues associated with the identity of persons who have signed a petition, and whether they are within the group specified in an application for a majority support determination, can be dealt with by the Commission examining lists of employees and unredacted versions of a petition to resolve discrepancies, and if necessary, seeking further information from the parties. In some contested cases where the majority is small, it may be appropriate to provide a legal representative with an opportunity to review an unredacted petition, subject to appropriate undertakings being provided. However, this is not such a case, and in any event, the Respondent or its legal representatives did not seek to view the unredacted petition.
I do not accept that it is appropriate to provide an employer with an unredacted copy of a petition simply for the employer to ascertain which employees have signed the petition so that those employees can be called by the employer to give evidence about their motives for signing or to establish a case that the employer seeks to advance about lack of understanding on the part of employees when they signed the petition, or misleading conduct on the part of a union, seeking to rely on the petition.
If an employer wishes to advance a case that employees were misled or deceived by officials of a union in relation to a petition seeking to establish majority support for enterprise bargaining, then evidence to support such assertions should be provided from witnesses called by the employer. Such allegations are serious and should not be made lightly and in the absence of cogent supporting evidence called by the party making the allegations.
I do not accept the submission advanced on behalf of MacKellar Mining in the present case, that it should not be expected to go amongst its workforce to find examples of people to support its case. In my view, it is perfectly reasonable for an employer who receives complaints about the conduct of a union seeking to obtain majority support, to inform employees that such complaints have been received from their colleagues and to put in place a mechanism for other employees to report any concerns.
In the present case there was a suggestion to the effect that the Commission should have regard for the fact MacKellar Mining is a longstanding family business that is new to projects of the size it is undertaking at the Carmichael Mine and has not previously engaged in enterprise bargaining or with unions. It was also put to Mr Brunker that if a secret ballot was conducted, the Company may be more inclined to accept that employees want to bargain.
Further, it was submitted that if industrial participants have a properly justified concern that the methodology proposed by a union is unreliable or tainted, as is the case in the present matter, then for it to be accepted by the Commission, properly regarded as the neutral umpire, despite these concerns, would tend to be corrosive to the cooperative relationships which the Act is designed to promote. There was also a submission that if the petition tendered by the CFMMEU in the present case was accepted as the appropriate methodology for determining majority support, it would lead to resentment and suspicion and a view on the part of the Company that the Commission condones deceptive conduct and that the Commission should adopt a different methodology that might avoid that risk entirely. In this regard, MacKellar Mining sought that the Commission approve an information statement to explain the consequences of the commencement of bargaining fairly and comprehensively, which the employees could read and consider, free from any inappropriate pressure or influence from either party to the application.
I do not accept those submissions. It is for the applicant for a majority support determination to establish that the basis upon which the Commission can be satisfied of the matters in s. 237(2) of the Act, by placing evidence before the Commission. I accept that an employer has a right to raise concerns about misleading or deceptive conduct on the part of union officials or representatives, and to assert that the Commission should not be satisfied that the majority of employees want to bargain or that it is not reasonable in all the circumstances for the Commission to make a majority support determination. However, it is the Commission that must be satisfied in relation to the matters in s. 237(2) rather than the employer objecting to the determination being made. The Commission does not have to satisfy the employer party, but rather satisfy itself, that the determination should be made.
The mere fact that the employer has concerns, is not of itself, a sufficient basis for the Commission to embark on its own process of canvassing the views of employees, simply to assuage those concerns. As a Full Bench of the Commission observed in Inpex Australia Pty Ltd v The Australian Workers’ Union[32]:
“We agree that a mere application under s 236 of the FW Act, or a bald assertion in an application that majority support exists with no proffered justification, may not be sufficient to provide the Commission with a jurisdictional basis to make orders to ascertain whether majority support for bargaining exists. There is force in the proposition that an application under s 236 is for a determination that majority support exists, not a speculative investigation into whether it exists. The provision appears to us to operate upon a premise that the bargaining representative applying for a determination has a reasonable hypothesis that there is majority support for bargaining. The materials before the Commission should bear out a reasonable foundation for such a hypothesis.”
In that case the Full Bench also doubted the power of the Commission to order that the AEC conduct a ballot in connection with a majority support determination and found that a member of the Commission could not decide that the Commission would incur costs associated with a ballot being conducted by the AEC. Often the timing of the making of a determination is critical, and while I do not suggest that this is the motivation in the present case, arguments such as those advanced by MacKellar Mining have the potential to delay the making of a determination.
In my view, where there is a petition or other evidence which prima facie establishes that a majority of employees wish to bargain, and there is no basis for the Commission to believe that the requirements of s. 236 and s. 237(2)(b) and (c) are not met, the Commission would not intervene by putting in place a further process for ascertaining majority support in the absence of cogent evidence that is tested and found by the Commission to provide a reasonable basis for concluding that the majority of employees may not want to bargain, notwithstanding the petition, and that it is not reasonable on the basis of the evidence then before the Commission to make the determination.
In the present case, Mr MacKellar stated in his evidence to the Commission that he was unaware that 135 employees (134 excluding Ms Jozsef) out of a total of 189 had indicated support for bargaining by signing a petition. This is by no means a narrow majority and I can only wonder at what additional evidence of support could have been obtained by the CFMMEU in the circumstances of this case. I turn now to consider the evidence of the alleged deceptive and misleading conduct on the part of the CFMMEU, and, Mr Brunker.
The evidence in relation to Mr Brunker’s conduct
The only direct evidence about Mr Brunker’s conduct while exercising right of entry, was that of Mr Williams and Ms Jozsef. I observe at the outset that I did not find Mr Williams to be a compelling witness. This is not because of Mr Williams’ obvious antipathy to unions but rather because of his generally flippant demeanour in relation to giving evidence. For example, when Mr Williams was asked whether he would take an oath or an affirmation, he responded by stating that he is Christian at the moment but is thinking of becoming a Muslim. It was also clear that Mr Williams did not have an accurate recollection of the date on which Mr Brunker made the alleged comments. Further, on Mr William’s own evidence he had an altercation with Mr Brunker and fired questions at him raising the possibility that Mr William’s recollection is not entirely accurate, even if as he put it, Mr Williams “has a good memory for bullshit.”
Even if Mr Williams’ evidence is accepted, there is nothing misleading about a union official who is endeavouring to persuade employees to support enterprise bargaining, informing those employees that the objective of enterprise bargaining is a wage increase and improved terms and conditions of employment. On balance, I do not accept that Mr Brunker stated that MacKellar Mining had decided to “take flights off” employees or that they would lose their flights. Ms Jozsef, who was a more convincing witness than Mr Williams, stated that Mr Brunker said that there was a really good possibility that employees would have to pay for their own flights and accepted that Mr Brunker was not definitive about this.
I find it probable that Mr Brunker stated that the Company may remove the flights it is providing to employees. I also accept that Mr Brunker made this comment in the context of informing employees that benefits such as flights are more secure if they are provided for in an enterprise agreement than if they are provided for in Company policy and/or contracts of employment. Further, I accept that Mr Brunker’s view that the Company had changed the contracts with respect to the provision of transport to site was erroneous. In short, Mr Brunker gilded the lily or exaggerated in respect of what he told employees about flights.
However, I also note that there is some accuracy in Mr Brunker’s assessment of effectiveness of the contractual entitlements of employees with respect to flights. It is correct that an employer’s policies can be amended at any time. The current contracts of employment do not specifically refer to transport to site being provided by plane. Rather, they state that transport will be provided in accordance with Company policy.
I accept that neither Mr MacKellar nor MacKellar Mining, has any intention of removing flights from employees or changing Company policy in this regard, but this does not make Mr Brunker’s assessment inaccurate. The Company could change its policy. Further, if an entitlement is contained in an enterprise agreement, it cannot be varied without the agreement of a valid majority of employees and an application for variation being approved by the Commission. I also note that if the Company was concerned about incorrect information being provided to employees, it could have corrected Mr Brunker’s misapprehension about the contract and/or provided him with a copy of its policy. Mr Brunker readily accepted under cross-examination that his interpretation of the contracts was erroneous.
In relation to other matters complained of with respect to Mr Brunker’s communication with employees, MacKellar Mining pays aggregate or loaded rates, and reasonable minds can differ about how to unpack those rates to compare them to the rates employees would be earning under the Award. MacKellar Mining is entitled to refuse to provide information about its rates to the CFMMEU and the CFMMEU is entitled to raise a dispute if such refusal is contrary to the Company’s obligations under the Act.
However, I do not accept that information could not have been provided to Mr Brunker while maintaining the privacy of employees in relation to their wages. Ms Ritter agreed that all operators at the same level are paid the same rate, and there was no reason on grounds of privacy to refuse the request to provide the Union with information about how the aggregated rates are calculated. There is nothing inappropriate about Mr Brunker taking issue with those rates and asserting that they are inadequate to absorb all allowances and other payments that employees would be entitled to under the Award or that they are not sufficiently above the Award to meet industry standards or that the rates the Company is paying could be improved by enterprise bargaining. The Company could have provided a breakdown of the rates it is paying to Mr Brunker while maintaining the confidentiality of employees. While it is entitled not to do so, it cannot complain when Mr Brunker informs employees that he has requested information and it has been refused. Mr Brunker is not obligated to inform employees as to why MacKellar Mining is refusing to provide him with information in order to accurately advise them about the benefits of enterprise bargaining.
I do not accept that Mr Williams or Ms Jozsef can given evidence about what other employees thought of the statements made by Mr Brunker. I am sure that Mr Williams is not the only employee of MacKellar Mining capable of independent thought in relation to whether to sign a petition indicating support for enterprise bargaining. There is no evidence that Mr Williams was pressured to sign the petition. If Ms Jozsef was pressured, it was not by the CFMMEU but rather by her work colleagues. That Ms Jozsef felt pressured is regrettable but it does not render the petition invalid and a majority support bargaining even if Ms Jozsef’s signature is not counted.
Finally, there are unresolved conflicts between the evidence of Ms Jozsef and Mr MacKellar about when they discussed Ms Jozsef’s concerns about the conduct of Mr Brunker at the site. If I accept Mr MacKellar’s evidence, the discussion with Ms Jozsef did not occur until 25 August 2021 despite the incident which gave rise to Ms Jozsef’s concerns with Mr Brunker’s conduct having occurred on 17 July 2021. In this regard, I note that the CFMMEU’s application for a majority support determination was made on 3 August 2021 and that the Company’s material in opposition was filed on 27 August 2021. I also note Ms Jozsef’s evidence that Mr MacKellar telephoned her seeking that she provide a witness statement in the present proceedings.
While this does not detract from the veracity of Ms Jozsef’s evidence, it is indicative that while Mr MacKellar provided support to Ms Jozsef by asking staff to contact her and that the purpose of his contact was to obtain a witness statement from Ms Jozsef for the purposes of opposing the CFMMEU application for a majority support determination.
In conclusion, while Mr Brunker’s communication with employees of MacKellar left something to be desired in terms of accuracy, it was not misleading and deceptive to the extent that I could find that the majority of employees of MacKellar Mining do not wish to bargain and that it is not reasonable in the circumstances to make a majority support determination.
For these reasons I issued a majority support determination on 10 January 2022.
DEPUTY PRESIDENT
Appearances:
Mr R Anderson for the CFMMEU.
Mr D Williams of MinterEllison for the Respondent.
Hearing details:
14 & 28 September.
2021.
Brisbane.
[1] Exhibt A1 – Statement of Shane John Brunker.
[2] Exhibit R3 – Witness Statement of Duncan Guy MacKellar.
[3] Exhibit R4 – Witness Statement of Brianna Chanel Jozsef.
[4] Exhibit R5 – Witness Statement of Leonard Michael Williams.
[5] Exhibit R6 – Witness Statement of Monica Delyce Ritter.
[6] Transcript PN762 – 763, 785.
[7] Transcript PN 811.
[8] Transcript of Proceedings – PN844 – PN851
[9] Transcript of Proceedings – PN1023
[10] Transcript of Proceedings – PN1000
[11] Transcript of Proceedings – PN1093
[12] Transcript of Proceedings – PN1075
[13] Transcript of Proceedings – PN571
[14] Transcript of Proceedings – PN586
[15] Transcript of Proceedings – PN599
[16] Transcript of Proceedings – PN632
[17] Transcript of Proceedings – PN692.
[18] Transcript of proceedings PN 706 – 707.
[19] Exhibit R1.
[20] Exhibit R2.
[21] Finance Sector Union of Australia [2010] FWA 2690, at [66] – [69].
[22] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (AMWU) v Veolia Water Operations Pty Ltd[2015] FWC 2561.
[23] National Union of Workers v Metcash Food & Grocery Pty Ltd[2015] FWC 1582; The Australian Workers’ Union v The Austral Brick Co Pty Ltd T/A Austral Bricks[2010] FWA 5819 at [31] – [32]; NUW v Cotton on Group Services P/L[2014] FWC 6601 at [36]
[24] [2009] FWA 1123
[25] [2011] FWA 7928 at [7]
[26] [2010] FWA 5819 at [31]
[27] Transport Workers’ Union of Australia v MWAV Pty Ltd T/A Man With A Van[2018] FWC 6525 at [37]
[28] CFMEU v Xstrata Ulan (2012) 221 IR 59
[29] [2019] FWC 2885.
[30] Ibid at [33].
[31] Ibid at [36].
[32] [2020] FWCFB 5321.
Printed by authority of the Commonwealth Government Printer
<PR739779>
10
0