Construction, Forestry, Maritime, Mining and Energy Union v MacKellar Mining Pty Ltd

The Construction, Forestry, Maritime, Mining and Energy Union Mining and Energy Division (CFMMEU) applied under section 236 of the Fair Work Act 2009 (the Act) for a majority support determination in relation to employees in the production and maintenance departments of MacKellar Mining Pty Ltd (MacKellar Mining/the Company) at the Carmichael Coal Mine (Mine) in Central Queensland. MacKellar Mining opposed the application and contended that the Commission should not reach the requisite satisfaction that a majority of employees want to bargain, solely by reference to the petition provided by the CFMMEU. The Commission was required to determine whether a majority of the employees who will be covered by the agreement want to bargain and whether it is reasonable in all the circumstances to make the determination. The Court found 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. The Court found that the petition is in clear and unambiguous terms and the evidence of Mr Brunker establishes that he, or officials of the CFMMEU who attended the Carmichael site with Mr Brunker, maintained custody of the petition at all times. The Court found that there was 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. The Court found that there is no evidence that any employee that signed the petition, aside from Ms Jozsef, did not understand its purpose. The Court found 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. For these reasons, the Court issued a majority support determination on 10 January 2022.