Construction, Forestry, Mining and Energy Union v Xstrata Glendell Mining Pty Ltd

[2009] FWA 1682

[2009] FWA 1682

FAIR WORK AUSTRALIA

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Xstrata Glendell Mining Pty Ltd
(B2009/11103)

COMMISSIONER ROBERTS SYDNEY, 22 DECEMBER 2009

Application for a majority support determination.

[1] This application concerns an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act). The application was made on 27 November 2009. The Respondent to the application is Xstrata Glendell Mining Pty Ltd (Glendell).

[2] The application seeks a majority support determination with respect to Production and Engineering employees of the respondent at its Glendell Mine in the Hunter Valley District of New South Wales.

[3] The application came before me for hearing in Sydney on 10 December 2009. The CFMEU was represented by Mr K Endacott and Glendell by Mr J Murdoch SC with Mr A Morris of Blake Dawson. Mr R Calov (CFMEU Organiser) and Mr A Israel (Glendell’s Operations Manager) gave evidence.

Background

[4] Glendell is not a party to any certified agreement covering its production and engineering employees, nor is it a respondent to the Coal Mining Industry (Production and Engineering) Consolidated Award 1997. However, from 1 January 2010 its employees will be covered by the Black Coal Mining Industry Award 2010. Employees who are the subject of this decision are currently employed by Glendell under what Mr Israel refers to as “… a standard employment agreement referred to as the Mine Operations Employment Agreement.” It is the Company’s wish to retain the common law agreement into the future. The CFMEU wishes to negotiate with Glendell for an enterprise agreement. On the materials available to me, it appears fair to say that Glendell is highly resistant to dealing with the CFMEU in an agreement making process. The CFMEU maintains that the petition signed by 76 Glendell employees is sufficient proof that a majority of the relevant employees at Glendell support the making of an enterprise agreement to be negotiated by the CFMEU. Glendell maintains that its ballot result should be persuasive that the majority of the relevant Glendell employees do not wish to have such an agreement negotiated. Glendell further submits that the best way to resolve the conflict between the parties as to the wishes of the workforce is for me to order the holding of a secret ballot to be conducted by the Australian Electoral Commission.

Legislative Framework

[5] Sections 236 and 237 of the Act provides:

“236 Majority support determinations

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

(2) The application must specify:

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

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

237 When FWA must make a majority support determination

Majority support determination

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

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

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

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

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; and
(ii) who will be covered by the agreement;

want to bargain; and

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

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

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

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

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

Operation of determination

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

Evidence

[6] Mr Calov submitted a witness statement 1. His evidence detailed unsuccessful attempts by the CFMEU to negotiate with Glendell for an enterprise agreement. Most importantly, his statement concerns a petition signed by 76 Glendell employees. That petition was in support of the following statement:

“Request for Xstrata Glendell Mining Pty Limited to commence negotiations for a workplace agreement under the Fair Work Act 2009

I, the undersigned, request that my employer commence negotiations for an Enterprise Agreement to cover Production and Engineering employees employed by my employer at its Glendell Open Cut Mining Operations.

I ask you to contact the CFMEU (Mining & Energy Division) Northern District Branch so an initial meeting can be organised for the commencement of the negotiations.”

[7] Mr Calov’s evidence appears to me to have been truthful and I accept that evidence as to factual matters.

[8] Mr Israel submitted a witness statement. 2 His evidence was that Glendell employs a total of 142 production and engineering employees. Mr Israel said that Glendell had conducted a secret ballot of the relevant employees which asked those employees to choose one of the following two options: “(1) Retain & review current MOE Agreement, address necessary changes and implement high income guarantee. (2) Implement union negotiated Enterprise Agreement.”

[9] The Glendell-conducted ballot also contained a ‘feedback or suggestion’ section which was not compulsory for the employees to fill in. The result of that ballot was that “61 employees had expressed a preference in support of retaining and reviewing the MOE Agreement, 50 employees expressed a preference for a union negotiated enterprise agreement and 24 employees had not lodged a Preference Nomination Form.” The total number of employees balloted was 135. It was Mr Israel’s further evidence that he believed from the result of the ballot and his other consultations with staff that employees of Glendell did not wish to have a union-negotiated enterprise agreement. I have no reason to doubt the truthfulness of Mr Israel’s evidence as to his beliefs concerning the wishes of his workforce.

Conclusions and Findings

[10] Despite some initial hesitation on the part of Glendell, it conceded that there was no basis to doubt that the petition signatures were genuine and were those of Glendell employees. There is some question as to who filled in the date next to some of the signatures but that matter is not of great importance in my view. What I am left with after considering all of the evidence, submissions and materials in this case is a petition signed by a clear majority of Glendell production and engineering employees which explicitly seeks that Glendell commence negotiation for an enterprise agreement and that Glendell contact the CFMEU to organise the commencement of such negotiations.

[11] I am satisfied as to the genuineness of the petition and satisfied that the petition shows the clear wishes of a majority of employees. I further note that the dates on the petition adjacent to the signatures of the 76 employees post-date the closing date of Glendell’s internal ballot. Therefore, on the latest information available to me, a clear majority of Glendell’s production and engineering employees have expressed a view which the CFMEU’s application seeks to form the basis for a majority support determination.

[12] Accordingly, it is my finding that a majority support determination in the terms sought by the CFMEU must be granted pursuant to subsection 237(1) of the Act. In so deciding, I am satisfied in relation to all those matters set out in subsection 237(2) of the Act.

[13] An order reflecting this decision is in PR992165.

COMMISSIONER

Appearances:

K Endacott for the Construction, Forestry, Mining and Energy Union.

J Murdoch SC, with A Morris for Xstrata Glendell Mining Pty Ltd.

Hearing details:

2009.

Sydney:

December 10.

 1   Exhibit CFMEU 2.

 2   Exhibit Glendell 2.

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