Construction, Forestry, Maritime, Mining and Energy Union v Peabody CHPP Pty Ltd
[2022] FWC 901
| [2022] FWC 901 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Construction, Forestry, Maritime, Mining and Energy Union
v
Peabody CHPP Pty Ltd
(B2022/29)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 19 APRIL 2022 |
Application for a majority support determination - Peabody CHPP Pty Ltd
Background
On 20 January 2022, the Construction, Forestry, Maritime, Mining and Energy Union applied under s. 236 of the Fair Work Act 2009 (the Act) for a majority support determination with respect to employees of Peabody CHPP Pty Ltd (Peabody CHPP/ the Respondent) who are employed as production and engineering employees in classifications in Schedule A and B of the Black Coal Mining Industry Award 2010 at the Respondent’s Coppabella Coal Handling and Preparation Plant.
On its Form F30 application, the CFMMEU asserted that in response to communication it had sent to Peabody CHPP seeking to bargaining for an enterprise agreement, Peabody CHPP had stated it did not agree to commence bargaining for an enterprise agreement.
On 28 January 2022 I set the matter down for Mention and issued directions requiring:
· The CFMMEU to file an unredacted petition said to have been signed by the Employees in support of bargaining; and
· Peabody CHPP to file a list of Employees in the group described in the application.
As is common in matters of this type, both the petitions and the list were to be provided to the Commission only. Both parties filed the material required by the Directions. The list of employees provided by Peabody CHPP included 17 names, 15 of whom had signed the petition filed by the CFMMEU.
On 3 February 2022, I caused correspondence to be sent to the parties advising that upon a comparison of the signatures and names of employees on completed ballot forms against the list of the Employees provided by Peabody CHPP, my provisional view was that a majority of the Employees had signed the petition indicating their wish to commence bargaining. I requested the representatives of Peabody CHPP to advise if Peabody CHPP continued to object to a determination being made on any other grounds.
The matter proceed to a Mention on 4 February 2022. Mr R Anderson, Senior Legal Officer appeared for the CFMMEU. Permission was granted for Mr D Williams of MinterEllison to appear for Peabody CHPP.
At the Mention an issue was raised by Peabody CHPP that certain employees of Peabody CHPP who would be covered by the proposed Agreement had been issued employment contracts which identified a different Peabody entity as the employer, which was purely an administrative error. Peabody CHPP sought to rectify the error prior to a determination being made and proposed to issue correspondence to all employees to rectify the error and confirm that Peabody CHPP was the relevant employer. Peabody CHPP otherwise did not oppose a determination being made.
The CFMMEU agreed to a process whereby Peabody CHPP would issue correspondence to employees to clarify the error and the Mention was adjourned to allow that process to take place.
On 14 April 2022 correspondence was received on behalf of Peabody CHPP indicating that this process had taken place, following some delays associated with receiving signed letters from employees acknowledging the change in employer. The correspondence noted that 6 employees out of the 17 had not returned signed letters, and accordingly, there was a possible total of 11 employees who could be covered by the proposed agreement, the subject of the majority support determination. Peabody CHPP provided the names of those employees separately to the Commission. The correspondence stated that Peabody CHPP was prepared to concede the application on the basis of those 11 employees subject to the Commission being satisfied that a majority still existed amongst those 11 employees.
Peabody CHPP further stated it raised no other issue with the application and would await the decision, and that it understood the CFMMEU was content to proceed on that basis.
On a further comparison of the list of employees and signatures and names of employees on the completed ballot forms, I remain satisfied that a majority of Employees have signed the petition indicating they want to commence bargaining.
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.
I am satisfied that a majority of employees who are employed by Peabody CHPP and who will be covered by the proposed agreement want to bargain. I am also satisfied based on the application and the material attached to the application that the employer to be covered by the proposed agreement has not yet agreed to bargain, or initiated bargaining, for the Agreement. Further, I am satisfied that the group of employees who will be covered by the Agreement has been fairly chosen and that it is reasonable in all the circumstances to make the determination.
Conclusion
Having formed the requisite satisfaction in relation to the matters in s. 237(2) of the Act, I must make a majority support determination. A determination[1] will issue with this decision
DEPUTY PRESIDENT
[1] PR740477.
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