Fair Work Act 2009

s.236 - Majority support determination

Association of Professional Engineers, Scientists and Managers Australia T/A Collieries Staff Division

Application for a Majority Support Determination.

• [1] The Association of Professional Engineers, Scientists and Managers Australia T/A Collieries Staff Division (APESMA/the Applicant) applied to the Fair Work Commission (the Commission) on 19 July 2022 for a majority support determination under s. 236 of the Fair Work Act 2009. The application was made in respect of a Group of employees of Ensham Resources Pty Ltd (Ensham/the Respondent) who are employed in the underground mining operation at the Ensham Coal Mine located near Emerald in Central Queensland. Ensham is the operator of the Mine.

• [2] The Mining and Energy Union Division (MEU) of the Construction, Forestry, Maritime, Mining and Energy Union has been granted permission to intervene in these proceedings on the basis that it has member within the Group of employees nominated by APESMA to be covered by the proposed agreement and that its interests in these proceedings align with those of APESMA.

• [3] Between February and June 2021, attempts were made, by APESMA and the MEU, to initiate bargaining with Ensham for an enterprise agreement. On 11 February 2022, APESMA and the MEU jointly corresponded with Ensham seeking to initiate bargaining for an enterprise agreement that would cover a group of employees who were engaged in a list of positions as follows: ERZ Controllers / Deputies; Control Room Operators (CRO); Undermanagers; Production Coordinators; Trade Supervisors (Electrical & Mechanical); Maintenance & Infrastructure Coordinators; Maintenance Planners; Mechanical Engineers; Electrical Engineers; Ventilation Officers; Mining Engineers; and Surveyors (the Group).[1]

• [4] Ensham declined the request for bargaining on 17 February 2022 on the basis that it intended to continue its practice of engaging each of those employees on individual contracts of employment rather than a collective enterprise agreement.[2]

• [5] On 8 June 2022, APESMA and the MEU sent further correspondence to Ensham requesting that bargaining be commenced on the basis that employees within the Group had participated in an electronic ballot, organised by APESMA and conducted by Vero Voting (Vero), and the voting results indicated that a majority of those employees wanted to bargain.[3] APESMA provided Ensham with a report compiled by Vero titled, Declaration of Results, which identified that a Group comprising 57 eligible employees had participated in an electronic ballot and 36 out of the 57 employees cast a "yes" vote in favour of bargaining.[4]

• [6] By a letter dated 13 June 2022, Ensham queried the basis upon which APESMA came to determine that there were 57 employees eligible to participate in the vote and sought clarification around the voting process.[5] On 15 June 2022, APESMA advised Ensham that it "determined the eligible voters based on the proposed scope put to the company and the members occupying those positions." Ensham was also provided with information about the voting process, including that the Fair Work Ombudsman Enterprise Bargaining Fact Sheet was provided to the eligible employees and the questions that were put to a vote. APESMA foreshadowed making an application to the Commission if Ensham did not agree to initiate bargaining by 17 June 2022.[6]

• [7] By a letter of 20 June 2022, Ensham continued to question whether those employees who participated in the vote were appropriately informed by APESMA about what they were expressing support for. Ensham further advised that "without agreeing to the proposed scope nor agreeing to enter into an enterprise agreement", it expressed the view that the Group identified by APESMA consisted of 92 rather than 57 employees. On the basis that only 36 out of 92 employees cast a "yes" vote, Ensham was of the view that there was not a majority of employees wishing to bargain and declined APESMA's request for bargaining.[7]

Application and preliminary analysis of support for bargaining

• [8] In the Form F30 application, APESMA described the group of employees who would be covered by the proposed enterprise agreement, including how such employees are geographically, operationally and/or organisationally distinct, as follows:

"1. The proposed agreement will cover staff employees employed by Ensham Resources Pty Ltd at and from the black coal mine known as the Ensham Coal Mine in the following classifications/positions (Group):

1. The Group is geographically distinct as they work at and from the Ensham Coal Mine.

1. The Group is organisationally and operationally distinct. The Group are recognised internally by Ensham as being an organisationally and operationally distinct group (designated as ERPL Stratum 1 Role or ERPL Stratum 1 Role Seconded) reporting to the Underground Mining Manager and Underground Maintenance Manager.

1. The Group occupy positions, in part, recognised under the Coal Mining Health and Safety Act, are generally responsible for the supervision and planning for production of black coal mining at the Ensham Coal Mine which is a unique and operationally distinct group of function within the Mine."

• [9] On 20 July 2022, the application was allocated to me for determination. Directions were issued requiring APESMA to provide to the Commission the names and contact details of the 57 employees in the Group as well as a list of employees who indicated their support in the electronic vote in relation to bargaining for an enterprise agreement. Ensham was directed to provide a list of all employees who are within the coverage of the proposed agreement as identified in the application by APESMA. The information provided by each party was not shared with the other parties and were provided only to the Commission on a confidential basis.

• [10] On 22 July 2022, both APESMA and Ensham provided the relevant lists of employees to the Commission as directed. The details of those lists were as follows:

• The first list provided by APESMA consists of 57 names of employees, their email addresses and phone numbers.
• The second list provided by APESMA consists of 36 names (out of the 57 employees) who indicated agreement with a proposed enterprise agreement by casting a 'yes' vote in the electronic ballot. The list also includes the date and time at which the vote was cast and a "unique identifier (payroll number)" for each of the voting employees.
• The list provided by Ensham comprises 91 names of employees said to be all employees falling within the Group identified by APESMA in the application.

• [11] On 25 July 2022, I caused an email to be sent to the parties advising that, based on a preliminary review of the information provided by the parties, there did not appear to be majority support for bargaining. Without disclosing the names and details of the employees provided by the respective party, the parties were advised that:

• The list provided by Ensham contained 91 names;
• Of the 57 employees identified in the Group, 53 names had been matched to Ensham's list and 4 names were not found on Ensham's list; and
• Of the 36 employees who cast a "yes" vote, 35 names had been matched to Ensham's list and 1 name did not appear on Ensham's list.

• [12] Given the disagreement between APESMA and Ensham over the total number of employees within the Group, a Case Management Hearing was conducted on 25 July 2022 to canvass the issue. Ensham indicated that, based on the 4 paragraphs of description specified by APESMA in the Form F30 Application, it was not clear as to which employees were part of the group and which employees were not. The list of 91 employees was, therefore, compiled on the basis that all employees, who answered to any one of the 4 paragraphs of description, were included in the list.

• [13] APESMA indicated that the Group was only intended to cover employees who are in positions marked with an asterisk, as indicated in paragraph 1. The subsequent paragraphs were merely illustrative of APESMA's position that the group was fairly chosen, taking into account the geographical, operational and/or organisational distinctiveness of the Group. Following discussions with the parties, Ensham agreed to provide a revised list to include only employees occupying positions marked with an asterisk.

• [14] On 26 July 2022, Ensham provided to the Commission a revised list of employees containing 71 names arranged by reference to the titles of the asterisk positions as nominated by APESMA. The revised list is said to be all employees occupying those specified positions. In addition, Ensham advised the Commission that there was an error in the original list provided to the Commission on 22 July 2022 in that some of the names had been repeated and the total number of employees included in that list should have been 88 rather than 91.

• [15] On 27 July 2022, I caused an email to be sent to the parties stating that a second count had been undertaken using the lists provided by APESMA on 22 July 2022 and the revised list provided by Ensham and that it appeared there was not majority support for bargaining on the basis that:

• The second list provided by Ensham contains names of 71 employees.
• Of the 57 employees identified in the Group by APESMA, 53 names have been matched to the second list and 4 names are not on the list.
• Of the 36 employees who voted yes, 35 names have been matched to the 2nd list and 1 name is not on the list.

• [16] APESMA was directed to advise the Commission by 1 August 2022 whether it continued to press the application for a majority support determination. Ensham indicated that it maintained its objection to the application and was then directed to provide a brief outline of objections which it sought to advance.

• [17] On 29 July 2022, Ensham filed a brief outline of objections indicating that it sought to object on the basis that the Commission could not be satisfied that each of the requirements in s. 237(2) of the FW Act for making a majority support determination had been met, except the requirement in s. 237(2)(b). Ensham accepted that there is no dispute in relation to the requirement in s. 237(2)(b) as Ensham, being the employer that would be covered by the proposed agreement, had not yet agreed to bargain, or initiated bargaining, for the agreement.

• [18] By an email of 1 August 2022, APESMA advised the Commission that, having considered the results of the second count, it sought to press its application for a majority support determination and requested that the matter be listed for a further case management hearing. A further case management hearing was conducted on 3 August 2022.

• [19] At that hearing, APESMA indicated that, in order to ascertain the issue of majority, it wished to make further enquiries in relation to those employees who are not on Ensham's revised list of 71 employees and to that end, sought the confidential disclosure by the Commission of:

(a) the name of the 1 employee, who cast a "yes" vote but is not on Ensham's revised list; and

(b) the names of 4 employees who are not on Ensham's revised list.

• [20] APESMA was unable to verify whether those employees, who participated in the vote electronically, consented to being identified and the disclosure of their personal information. I therefore refused the disclosure of the names of the 4 employees who are not on Ensham's revised list but granted permission for the disclosure of the name of the 1 employee who cast a "yes" vote but is not on Ensham's list. In providing the name of the relevant employee to APESMA, I had regard to the fact that APESMA was already in possession of the list of employees who voted in support of bargaining. APESMA was provided with the 1 name on a confidential basis on 3 August 2022. The matter was then listed for a third case management hearing on 12 August 2022.

• [21] On 10 August 2022, APESMA's legal representative advised the Commission that, following the making of further enquiries with respect to the one employee previously disclosed to APESMA, APESMA's position on the issue of majority was that:

"It would appear that there may be a disparity between the time of the taking of the two lists which have been submitted by the respective parties to the Commission.

The confidential list submitted by my client was a list taken at the time of the ballot (May 2022). It appears that the confidential list submitted by the company may not be a list reflective of the same time period (May 2022) but instead reflective of a period at or around the time of the Commission's request (August 2022). As such, it may be the case that there is not a like-for-like comparison being conducted for the purposes of determining the majority which may explain some of the discrepancy in numbers. My client intends to raise this issue at the next directions hearing and will request that the respondent clarify the time period which its list covers as the parties move to further program the matter to allow for determination."

• [22] On 11 August 2022, by an email to the Commission and APESMA only, the MEU advised that it sought to appear in the case management hearing listed on 12 August 2022 and permission to intervene in these proceedings. The MEU forwarded an email from an employee of Ensham and a declaration (in PDF format) signed by another employee of Ensham. The contents of the email and the signed declaration are identical and state that:

"I am currently an employee of Ensham Resources Pty Ltd and I was an employee between 4 and 11 May 2022. I am employed in the position of:

I wish to bargain for an enterprise agreement with my employer. I confirm that I did not cast a ballot when voting was open between 4 and 11 May 2022. By signing this document, I confirm that I was supportive of the commencement of bargaining between 4 and 11 May 2022 and I remain supportive of the commencement of bargaining with my employer for an enterprise agreement.

• [23] At the case management Hearing conducted on 12 August 2022, the MEU indicated that it sought permission to become a party to the proceedings on the basis that it has members expressing support for bargaining and those members occupy the positions of Control Room Operators and ERZ controllers at the Ensham Coal Mine. Both positions are listed by APESMA as forming part of the Group. Ensham objected on the basis that the MEU had not make a formal application to be joined to the proceedings.

• [24] I indicated to Ensham that communication had been received from the MEU containing signed declarations by two MEU members said to be employees of Ensham stating that they want to bargain. I expressed the view that given that the MEU has members in the Group identified by APESMA, the MEU would be a bargaining representative by default and would in any event be entitled to make an application for a majority support determination.

• [25] APESMA's position was that on the basis of the material provided by the MEU, there were additional employees who indicated support for bargaining. Accordingly, a majority in a Group of 71 employees was therefore established on the material. Ensham did not accept that majority support was established given that it had not had an opportunity to review the material provided by the MEU.

• [26] In circumstances where the parties are in dispute about the number of employees who support bargaining, I expressed some concern with the manner in which the MEU provided the signed declarations to the Commission without informing Ensham that this had occurred. I decided to provide Ensham with the email and the declaration signed by employees, which were provided by the MEU, with the names and positions of the employees redacted. I also indicated that I would review the 2 names provided by the MEU against the list of 71 names provided by Ensham. The MEU took no issue with the disclosure of the documents, on the basis that the documents were redacted.

• [27] After a brief adjournment, I confirmed that the names of the two employees provided by the MEU were on the list of 71 names provided by Ensham but that one of the two employees had in fact already voted in the electronic ballot conducted by APESMA. As a result, there was only 1 additional employee who is in support of bargaining, thereby bringing the total number to 36 employees which is a majority of one in the Group of 71 employees. On the basis of the material, I indicated a provisional view that there is majority support.

• [28] Having considered the material by the MEU, Ensham was of the view that the signed declarations did not contain satisfactory explanations as to what the employees were invited to indicate support for or the questions that were put to them or the circumstances in which their signed declarations were obtained by the MEU. Ensham proposed that, subject to an appropriate undertaking as to confidentiality, the Commission disclose all the relevant information, including the names and contact details of the 36 employees, to Ensham's legal representatives so as to enable an objective review of the material to ascertain the issue of a majority. Ensham stated it may be that, after reviewing the material, Ensham would be satisfied that there was majority support and the issues in dispute could then be narrowed and if Ensham is not so satisfied, the issue could be dealt with in a hearing.

• [29] The course proposed by Ensham was opposed by APESMA. I did not accept there was utility or a necessity for revealing information that would enable the identification of those employees, for the purpose of ascertaining by Ensham whether or not there was majority support. It is unclear how the release of the names and details of the employees would by itself satisfy Ensham that there was majority support. Even if Ensham were to accept that there was majority support, Ensham had already foreshadowed that it was seeking to dispute other matters concerning the criteria for making a majority support determination and a contested hearing would therefore still be required to resolve those matters. Thus, Directions were instead issued for a hearing of the application to determine disputed matters.

• [30] Directions were issued on 15 August 2022 requiring APESMA to file and serve an outline of submissions and any witness statement it intends to rely on in support of its application for a majority support determination. The MEU was directed to file and serve any material it relied on in relation to its participation in this matter and the views of its members in relation to bargaining with Ensham. Ensham was directed to file and serve any material in response to that filed by APESMA and the MEU.

• [31] On 7 September 2022, outlines of submissions were filed by APESMA and the MEU. Evidence for APESMA was given by Mr Zachary Gallagher, an organiser employed in APESMA's Collieries Staff Division (CSD). Mr Gallagher provided a witness statement (the 1st statement)[8] and a confidential witness statement (the 2nd statement)[9], both dated 7 September 2022. The confidential witness statement relates to the evidence of further enquiries made by Mr Gallagher regarding the one employee whose name had been disclosed to APESMA. The confidential statement was filed in the Commission only and a copy of which was not served on Ensham.

• [32] In support of the MEU's position, Mr Shane Brunker, District Vice President of the MEU Queensland District, provided a witness statement dated 1 September 2022.[10]

• [33] Ensham filed and served an outline of submissions on 26 September 2022 and Mr Andrew Mifflin, General Manager Operations & Site Senior Executive of Ensham, provided a witness statement dated 26 September 2022[11]. An unredacted copy of Mr Mifflin's statement was filed in Commission and a redacted copy of the statement was served on APESMA and the MEU. The redaction relates to the names of employees that appear in Annexures AM4, AM5 and AM12.

• [34] On 30 September 2022 and 4 October 2022, applications for orders for production of documents, records or information to the Commission were made by APESMA and Ensham respectively. I issued the Orders on 6 October 2022 requiring APESMA, Ensham and the MEU to each produce to the Commission documents specified in the Orders as sought by the other party. The documents produced were provided to the parties on 7 October 2022 and each party provided undertakings with respect to the use of those documents.

• [35] A hearing was conducted by video on 11 October 2022 commencing at 10.00am. APESMA was represented by Ms L. Doust of Counsel, the MEU was represented by its Legal officer, Mr A. Nash, and Ensham was represented by Mr I. Humphreys of Ashurst.

• [36] On 10 October 2022, APESMA filed an additional witness statement by Mr Gallagher (the 3rd statement)[12]. At 9.51am on the day of the hearing, APESMA filed an Ensham organisational chart by way of an aide memoire. At 10.05am, APESMA filed another witness statement by Mr Gallagher (the 4th statement)[13] and a revised list of Ensham employees who had expressed support for bargaining (APESMA's revised list). APESMA sought permission to admit the 3rd and 4th statements of Mr Gallagher into evidence.

• [37] The substance of the evidence contained in the 3rd and 4th witness statements of Mr Gallagher is that, after making the present application, APESMA had continued to seek support from employees within the Group and at the date of the hearing, additional employees within the Group had signed declarations expressing support for bargaining, thereby bringing the total number to 42 employees, including the one name that was not on Ensham's list. The names of all 42 employee were provided by APESMA in its revised list.

• [38] Ensham opposed the admission of the 3rd and 4th statements of Mr Gallagher into evidence on the basis that admitting those statements would be contrary to s. 577(a) of the FW Act which requires the Commission to perform its functions and exercise its powers in a manner that is fair and just. In this respect, Ensham submits that:

• The 3rd statement of Mr Gallagher was filed the day before the hearing and the 4th statement was filed after the hearing had already commenced. Pursuant to the Directions of 15 August 2022, both parties had filed their evidence-in-chief and the Applicant had an opportunity to file any material in reply, but it did not avail itself of that opportunity.

• Both parties already had an understanding of the case of the other party, including the matters in contest, and preparation for the hearing was made on that basis.

• • The interests of a fair and just disposition of the application is best served by refusing leave for the statements to be admitted as it is well established by Commission authority that a failure to advise the other party of the first party's intentions, if deliberate or reckless, would be unreasonable.[14]

• The Applicant's conduct in this instance "has been entirely unreasonable and, on its face, one must infer deliberate. On the very doorstep of the hearing, the Applicant has made a decision to attempt to obtain further support. Since as early as 25 July 2022, when the Fair Work Commission indicated a majority had not been established, the Applicant was on clear notice that the numbers were tight, and its application was at risk of falling or failing on the majority point. At no time did the Applicant foreshadow to the Respondent or to the Commission prior to the filing of its material or since, that it would be seeking ongoing support for bargaining and nor did it seek an extension of time to file reply material to enable it to do so."

• APESMA's intention to file additional evidence "could have been communicated to the Respondent and the Commission at a much earlier time so as to avoid effectively ambushing the Respondent."

• There is "no apparent reason why this could not have occurred literally months ago as a matter of fact and, at the very least, even if it was to occur now, the Commission and the Respondent could have been put on notice about what was occurring rather than what has occurred and no mention being made and then the material is dropped on the Respondent and the Commission."

• The Respondent did not even have 24 hours to consider the 3rd statement, which was served on the Respondent the day before the hearing, and the 4th statement, which was filed after the hearing had already commence.

• The Commission must consider this prejudice against the unreasonableness on the part of the Applicant in failing to advise the Respondent and the Commission of its intentions and to deploy these statements on the doorstep of the hearing.

• The evidence is of highly probative value to one of the central questions before the Commission, namely, whether a majority of the relevant employees want to bargain. The evidence is particularly probative in circumstances where the Respondent contends that the date at which the Commission should determine whether there is a majority is the date of the hearing.

• The object of s. 577(a) of the FW Act could not possibly be served by the Commission closing its eyes to evidence of the intention of the employees whose employment and whose capacity to bargain effectively will be affected by the proceeding which is currently before the Commission.

• The evidence is of a fairly limited scope which concerns five of its employees. In the Applicant's view, it is not material that requires an enormous amount of time to comprehend. The Applicant would not oppose should the Respondent wished to take some time to consider the evidence.

• The suggestion that the Respondent had not had enough time to deal with this issue is at odd at least with the reality that since about June 2022, the Respondent has been well aware that making an application for a majority support determination was the intention of the Applicant. The Applicant had foreshadowed its intention to seek a majority support determination. The application referred to the outcome of the vote and the Respondent had had sufficient time since then to obtain some evidence from its employees about their intention. It was a course that was open to the Respondent. In the Applicant's view, the Respondent had been on notice with respect to the question of whether or not a majority of the Group supported bargaining.

• The two additional statements attached a number of declarations, which were made on Friday, 7 October 2022, and a further declaration made the day before the hearing. The Applicant did not accept the proposition that those matters were not brought to the Respondent's attention efficiently given the time at which those employees provided those declarations.

• [40] Having regard to the submissions by the parties, I granted permission for APESMA to tender the 3rd and 4th statements of Mr Gallagher into evidence. In this respect, my reasons as stated to the parties were that I accepted that the Respondent may require some opportunity to receive instructions and formulate some questions for cross-examination. However, in the interests of fairness and justice, any prejudice to the Respondent would be overcome by giving it some time to consider the material. Further, the additional material was not extensive or detailed and the prejudice to the APESMA if the material was not allowed to be tendered, was of much greater significance.

• [41] Further, I was of the view that the nature of the work employees perform (including that they work a continuous shift roster and some employees are engaged on fly-in-fly-out arrangements), the context in which the work is performed and the nature of the proceedings, explained the timing of the material becoming available and there was no evidence that the tender of the material was a deliberate attempt to hijack the proceedings, but rather, it is the way that information travels on a worksite that was resulting in employees coming forward and seeking to indicate their support for bargaining. I was also of the view that s. 577 did not mandate or require or weigh in favour of me turning a blind eye to material that was highly probative and relevant to the matters that I was required to determine, which is whether a majority of employees support bargaining. Finally, I had regard to the fact that bargaining is a beneficial course of action that Unions are entitled to promote under the terms of the Act.

• [42] An application for a majority support determination is made pursuant to s. 236 of the FW Act. Under s. 237, 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 FW Act.

• [43] Relevantly, s. 236 provides as follows:

(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.

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

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

• [44] Section 237 of the Act provides as follows:

"237 When the FWC must make a 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

(i) who are employed by the employer or employers at a time determined by the FWC; 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.

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

• [45] With respect to the requirement in s. 237(2)(a), s. 237(3) provides that the Commission may use any appropriate method to work out whether a majority of the relevant employees want to bargain. In United Workers' Union v Wilson Security Pty Ltd (t/as Wilson Security)[15], a Full Bench of the Commission referred to the following statement contained in the Explanatory Memorandum to the Fair Work Bill 2008:

"It is at the discretion of FWA what method it uses to work out whether a majority of the employees want to bargain (subclause 237(3)). Methods might include a secret ballot, survey, written statements or a petition. A majority support determination comes into operation on the day on which it is made (subclause 237(4))."[16]

• [46] In RFFWU Incorporated v Coles Supermarkets Australia Pty Ltd (Coles Supermarkets)[17], a Full Bench of the Commission rejected a submission that the Commission is compelled by s. 237(2)(a) to take some particular or positive step to determine for itself whether or not a majority of relevant employees want to bargain. In this regard, the Full Bench stated that:

"[14] ... there is no merit to the proposition advanced in connection with the first appeal ground that s 237(2)(a), read with s 237(3), requires the Commission to take steps to determine for itself whether or not a majority of relevant employees want to bargain. The task of the Commission in respect of a majority support determination application is set out in plain terms in s 237(2): the Commission must determine whether it is satisfied as to the four matters specified, including that a majority of relevant employees want to bargain. If this state of satisfaction is reached, section 237(1) requires a majority support determination to be made. There is nothing in section 237 which requires the Commission to take any particular step in order to determine whether it has reached the requisite state of satisfaction. Section 237(3), as already stated, is plainly cast in discretionary terms, and it would do violence to the language of the provision to read it as requiring the Commission to take some positive step itself to "work out whether a majority of employees want to bargain".

[15] The discretionary character of s 237(3), as well as s 590(1), means that it will usually be open to a Commission member to determine whether they are satisfied in relation to s 237(2)(a) on the basis of the evidence and submissions put by the parties before the Commission. There may be a range of circumstances which might justify the exercise of the discretion in s 237(3) to order a ballot or some other means to assess the existence of majority support, including whether the applicant has advanced a "reasonable hypothesis" supported by evidence that majority support exists (see INPEX Australia Pty Ltd v AWU [2020] FWCFB 5321, 201 IR 424 at [11]), but no authority supports the conclusion that the s 237(3) is to be construed as compelling the Commission to exercise power under the provision merely because an applicant requests that it do so..." (Footnotes omitted)

• [47] A Full Bench considered the time at which the Commission is to be satisfied that the requirement in s. 237(2)(a) has been met, in Kantfield Pty Ltd T/A Martogg & Company v The Australian Workers' Union[18]. In that case, the Full Bench stated that:

"The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to "fix" historical or future points in time for other aspects of section 237.

"... there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker."

Applying Peko-Wallsend, it follows that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision. Having considered all of the submissions and authorities filed by the parties, we agree that it was not open to the Commissioner to determine a point in time other than the time of the decision as the time at which a majority of employees could be said to want to bargain. As such, we are not satisfied that it was open to the Commissioner to reach the determination that he reached.

Therefore, we are of the view that the Commissioner did not take into account a material consideration in the House v The King sense, namely, the most current available information to him at the time in determining whether a majority of employees wanting to bargain existed...(footnotes omitted)."

• [48] In relation to the fairly chosen requirement in s. 237(2)(c) and s. 237(3A), the applicable principles are well established. They are set out by a Full Bench in Cimeco Pty Ltd v CFMEU and others[19], as follows:

"[8] A member's decision as to whether or not they are satisfied that the group of employees covered by the agreement was 'fairly chosen' involves a degree of subjectivity or value judgment. Hence, in a broad sense that decision can be characterised as a discretionary decision...

[10] The Tribunal's first task under s.186(3) is to establish whether the agreement covers all of the employees of the employer(s) covered by the agreement. If all of the employees are covered then s.186(3A) is irrelevant but the Tribunal must still decide whether the group of employees covered by the agreement (ie. all of the employers' employees) was 'fairly chosen'. In some circumstances it may not be fair to choose all of the employees of an employer as the group to be covered by an agreement. 6 If all of the employees are not covered then the Tribunal must make a finding as to whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct. Absent such a finding the Tribunal cannot properly perform its statutory task.7 Section 186(3A) provides that the Tribunal must take that matter (ie. whether the group is geographically, operationally or organisationally distinct) into account and give it due weight, having regard to all other relevant factors. Finally, the Tribunal must state its reasons for concluding that the group of employees either was or was not fairly chosen.

[11] At issue in these proceedings is the proper construction of the expression "fairly chosen" in s.186(3). The starting point is to construe the words according to their ordinary meaning having regard to their context and purpose.

[12] The words "fairly" and "chosen" have a variety of meanings, depending on the context. The Oxford Dictionary defines "chosen" to mean, among other things, "taken by preference, selected, picked out". The word "chosen" in the context of s.186(3) simply means selected to be covered by the relevant agreement.

[13] The word "fairly" is derived from the adverb "fair" and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of "fairly" in The Oxford Dictionary the most apt in this context are:

"by proper means, legitimately, impartially, justly"; and

"with due regard to equity, candidly, impartially; without undue advantage on either side."

[15] ...In circumstances where an agreement does not cover all of the employees of the employer(s) covered by the agreement s.186(3A) imposes an obligation on FWA, in deciding whether the employees were 'fairly chosen', to 'take into account' whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct.

[19] ...that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.

[20] It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.

[21] It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word 'fairly' suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant."

• [49] These established principles were reiterated and further elucidated by the Full Bench in QGC Pty Ltd v Australian Workers' Union[20]. In that case, it was stated that:

"Distinctiveness is not absolute and can be a matter of degree. Distinctiveness on one of those bases is a factor telling in favour of a finding that the group is fairly chosen. Conversely if the group of employees is not geographically, operationally or organisationally distinct, then that is a factor telling against a finding that the group is fairly chosen. Whether or not a group is organisationally, operationally or geographically distinct is not decisive but rather is a matter to be given due weight having regard to all of the other circumstances.

...where the group is not geographically, operationally or organisationally distinct, it is necessary to identify what, if any, factors outweigh the absence of such characteristics and to give significant weight to the lack of distinctiveness in deciding whether the group was fairly chosen."[21]

• [50] In INPEX Australian Pty Ltd v The Australian Workers' Union[22], a Full Bench upheld an appeal against a decision that the group of employees to be covered by a proposed enterprise agreement had been fairly chosen, on the basis that there was an absence of evidence or probative material to support a finding that the chosen group of employees was organisationally or geographically distinct. The Full Bench found that this error infected the ultimate finding that the group was fairly chosen.

• [51] It is not in dispute that an application has been made. Based on the material attached to the application and the evidence of Mr Gallagher, Mr Brunker and Mr Mifflin, I am satisfied that Ensham - the employer to be covered by the proposed agreement - has not yet agreed to bargain, or initiated bargaining, for the agreement. Accordingly, the requirement in s. 237(2)(b) has been met. The parties are, however, in dispute about whether the Commission can be satisfied of those matters in ss. 237(2)(a), (c) and (d).

• [52] Mr Gallagher is an organiser employed in APESMA's Collieries Staff Division (CSD). The membership of APESMA in the CSD is primarily comprised of employees engaged in supervisory, professional, administrative, clerical and technical occupations within coal mine. As a union organiser, Mr Gallagher is responsible for organising and representing the industrial interests of members and prospective members of the CSD employed by Ensham at its underground mine located near Emerald in Queensland. Mr Gallagher stated that the Group of employees to be covered by the proposed enterprise agreement work in Ensham's underground mining operation, and those employees have been identified on the basis of their positions, as follows:

• [53] According to Mr Gallagher, Ensham operates both an underground and open cut mine and the present application and the Group only concern the underground part of the mine. Both the underground and open cut mine produce black thermal coal but there are significant differences in the skills and processes used to produce coal between the open cut and underground rendering them distinct operations.

• [54] Mr Gallagher stated that employees within the Group are not currently covered by an enterprise agreement, nor does he believe that those employees have ever been covered by an enterprise agreement at Ensham. The terms and conditions of employment for those employees within the Group are governed by a combination of the Fair Work Act 2009, the Award, individual contracts of employment and various policies and procedures imposed by Ensham.

• [55] In late 2021 and early 2022, Mr Gallagher conducted a series of discussions and consultations with various employees within the Group about the terms and conditions of their employment with Ensham at the mine. Discussions and consultations were also held with representatives of the MEU who represented some of the employees within the Group. Those discussions were held both at the Mine and offsite. During those discussion, Mr Gallagher recounted that he was asked about the process of bargaining for an enterprise agreement and there were questions around how conditions could be regulated at the Mine. Mr Gallagher expressed the view that it was known within the industry that Ensham was looking to sell its interest in the Mine and the employees were expressing concerns about the security of their employment conditions and a desire to lock in conditions through an enterprise agreement.

• [56] Mr Gallagher's observations from his discussions with the employees were that significant numbers of employees within the Group indicated that they had previously worked under an enterprise agreement through the course of their careers at other coal mines and saw the benefits of having an enterprise agreement.

• [57] According to Mr Gallagher, many employees within the Group are members of APESMA and he conducted regular consultation with them about workplace issues, both at the mine site and offsite. During those consultations, Mr Gallagher broadly explained the process around enterprise bargaining, including the requirement that Ensham would need to agree to commence bargaining, and that if Ensham refused to bargain, an application could be made to the Commission. Mr Gallagher explained to the members that such an application could only succeed if a majority of employees within the Group supported the initiation of enterprise bargaining.

• [58] Mr Gallagher recounted that during a meeting in late 2021 conducted via Zoom, a motion was passed by those in attendance to attempt to initiate bargaining for an enterprise agreement. He estimated that there were approximately 20 employees in attendance at the meeting and all of those employees in attendance who voted on the motion were within Group.

• [59] On 11 February 2022, APESMA and the MEU sent a joint letter to Andrew Mifflin, the General Manager Operations and Site Senior Executive of Ensham, seeking to initiate enterprise bargaining in respect of the Group. On 17 February 2022, Mr Mifflin responded to the 11 February 2022 letter, declining to bargain and advising that Ensham had no intention to make a collective agreement.

• [60] Given the refusal by Ensham to initiate bargaining, Mr Gallagher said he decided to undertake a process to allow employees within the Group to demonstrate their support for bargaining. Mr Gallagher said he understood this would be necessary for the purpose of an application for a majority support determination, and he was hopeful that Ensham might agree to bargain once it saw that a majority of the employees wished to bargain.

• [61] Through conversations and consultations with employees within the Group, Mr Gallagher went about identifying the number of employees who fell within the Group so that the question of majority could be tested. A significant number of the employees in the Group are members of APESMA and the Union had their contact details. Mr Gallagher also took steps to obtain contact details for members of the MEU within the Group. In around May 2022, Mr Gallagher identified a cohort of 57 employees within the Group.

• [62] Mr Gallagher decided to give employees within the Group an opportunity to express their support through an online process. In this respect, Mr Gallagher had regard to a number of considerations including: employees within the Group are spread over a 24/7 roster; some employees within the Group work on a fly out and fly in arrangement; some work underground for all or much of their shifts across different areas of the mine and do not necessarily come to the surface for their crib break or reliably have their break at set times; the COVID-19 pandemic and the caution that attaches to gathering large groups of people in the same room at the same time; and employees within the Group were generally computer literate and conducting an online ballot would allow them to vote at a time and place of their choosing.

• [63] Mr Gallagher stated that APESMA decided to engage Vero to conduct an online ballot for several reasons, namely, APESMA had previously utilised Vero for the purpose of supporting applications for majority support determination, Mr Gallagher is familiar with the services of Vero, he is aware that Vero had been previously used by employers to conduct surveys of their employees and that the results of surveys previously conducted by Vero had been accepted by the Commission for the purposes of majority support determinations.

• [64] In preparation for the ballot, APESMA provided Vero with a list of employees within the Group to be balloted. The list included personal details of employees for the purpose of identification, such as the names of the employee, email addresses, date of birth, employee ID numbers and where possible, mobile phone number.

• [65] In cross-examination, Mr Gallagher clarified that he did not provide employee ID numbers to Vero because APESMA did not have access to that information.[23] Mr Gallagher explained that employees who participated in the vote were required to put in their payroll number, not their employee ID numbers, for the purpose of identification and as an "authenticity and integrity measure".[24] The list provided to Vero has been reproduced in a letter filed in the Commission on a confidential basis on 22 July 2022 and tendered into evidence.[25]

• [66] Mr Gallagher said that the ballot was open for voting between 4 May 2022 and 11 May 2022. The voting process is described by Mr Gallagher as follows:

• Each employee in the Group was a sent a link either via mobile phone or email (or both) which had the following text:

PIN [A four-digit PIN was provided to each individual voter]."

• Once the employee clicked the URL link, the employee was taken to a webpage that required them to input the PIN provided to them and confirm they were employed by Ensham. The employee was then presented with their personal details and asked to update them if there were errors. The employee was required to input their payroll number to ensure a unique identifier was being used.

• Upon logging in, the employee was presented with the following statement: "The Fair Work Ombudsman publishes a helpful fact sheet about Enterprise Bargaining. If you would like to view this fact sheet, you can do so by clicking here."

• A link to the factsheet was provided in the above statement.

• The employee was then asked to confirm the following statement (which was a mandatory requirement prior to being able to proceed to vote): "I confirm that I have had the opportunity to read the fact sheet on Enterprise Bargaining published by the Fair Work Ombudsman which is linked above."

• The employee was then asked the following question to which they were able to select a 'Yes' or 'No' in response to the following:

"We, the undersigned employees of Ensham Resources Pty Ltd who are employed in the following positions:

• ERZ Controllers
• Undermanagers
• Control Room Operators
• Production Coordinators
• Trade Supervisors
• Maintenance Coordinators
• Maintenance Planners
• Mechanical Engineer
• Electrical Engineer
• Mining Engineer
• Surveyors; and
• Ventilation Officer

Wish to bargain for an enterprise agreement under the Fair Work Act 2009 (Cth).

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

• [67] After the vote was closed, APESMA received a report from Vero on 11 May 2022 titled, Declaration of Results. The report notes that there were 57 eligible voters, 38 of them cast a vote and 19 of them abstained from voting. In total, there were 36 "yes" votes and 2 "no" votes. Also contained in the report are two diagrams. Diagram 1 is headed "Fair Work Ombudsman Fact Sheet" and shows the following information: "Yes - 38 (100% of votes cast); No - 0 (0% of votes cast); and Yet to vote - 19". Mr Gallagher explained that what Diagram 1 shows is that all employees who took part in the vote "ticked a box at the bottom saying that they've had the opportunity to review the Fair Work Ombudsman's fact sheet" before they were able to proceed to the next step to cast a vote.[26]

• [68] Diagram 2 headed "Petition", on the other hand, shows 36 "yes" votes (63.2%), 2 "no" votes (3.5%) and 19 "yet to vote" (33.3%). The report also contains a declaration of independence by Vero stating that "the Ensham Resources Majority Support Determination vote has been managed and declared independent of Ensham Resources" and "the Enterprise Agreement vote result has been audited and the declared result is assured."

• [69] On 8 June 2022, Mr Gallagher appended the Declaration of Results to a letter sent to Mr Mifflin. In that letter, Mr Gallagher informed Mr Mifflin that APESMA had undertaken a process to determine the issue of majority support among the relevant employees and "that process resulted in a majority of employees supporting the commencement of bargaining with 63.2% out of 57 eligible participants wishing to commence enterprise bargaining".

• [70] As part of the preparation of his statement for these proceedings, Mr Gallagher said he had become aware that Ensham had previously conducted online ballot for its production employees associated with the bargaining for their agreement. He became aware of this as a result of reviewing the Form F17 Declaration submitted by Ensham in support of the enterprise agreement it made with the production employees. The process followed by Ensham for those

employees to indicate support for the agreement was similar to the Vero process adopted by APESMA as outlined above, albeit a different third-party provider was engaged.

• [71] In cross-examination, Mr Humphreys put a proposition to Mr Gallagher that the question/statement - "We, the undersigned employees of Ensham Resources Pty Ltd who are employed in the following positions" followed by a list of positions - which was put to a vote by the participating employees was "inherently misleading".[27] In this respect, Mr Humphreys put to Mr Gallagher that the listed positions of Undermanagers, Trade Supervisors, Maintenance coordinators are not found in the organisational chart.

• [72] In relation to Undermanagers, Mr Gallagher said that "it's quite common within the industry a shift supervisor... will have an undermanager's certificate of competency, and when you speak to workers, they would often interchangeably refer to themselves as shift supervisors or undermanagers".[28] As to Trade Supervisors, Mr Gallagher said that Ensham's practice is to name those positions as mechanical and electrical supervisors which are positions found in the organisational chart reporting to the Mechanical Superintendent (MEM) and Electrical Superintendent (EEM) in accordance with industry practice. Mr Gallagher accepted that the position "maintenance coordinator" is not found in the organisational chart but said that "the position exists [but] the title is different".[29] Mr Gallagher further noted that "the positions exist because a lot of them are required to exist under the Coal Mining Health and Safety Act. The naming conventions are in fact different".[30] In relation to the proposition that employees who took part in the vote could have become confused as a result of APESMA deviating from the naming conventions used by Ensham, Mr Humphreys and Mr Gallagher had the following exchange:

"Can I put to you that the question which was put is inherently misleading because it asks employees: "We, the undersigned employees of Ensham, who are employed in the following positions..." and sets those out, when, in truth, as you have identified, those positions are not known by those names at Ensham, so it's inherently misleading to have not used the naming conventions which apply at Ensham. You would agree with that?

I don't agree it's misleading at all. The naming conventions in the industry are what they are, they're conventions. The members in the workforce that we're dealing with here are very highly experienced workers and they would understand - they would have been, you know, at a different mine two years ago doing the exact same job function and called an undermanager; they would have been in a role three years ago at a completely similar asset with the same name or a different name. They're pretty common, and I would say it would be a big stretch to say that anyone in the workforce that we're trying to bargain for would be confused by common industry terms.

The position of APESMA is that in posing the question for the group to vote on, that was premised on an assumption of their understanding about industry nomenclature; that's your evidence?

I wouldn't say an assumption. They wouldn't be in the positions that they're in if they weren't highly experienced.

So you say they're highly experienced, so therefore they know. Can I put to you that that is an assumption? Once again, Mr Humphreys, we have not - or I have not personally received any communications saying that anyone was confused."[31]

• [73] In relation to the listed positions of Mechanical Engineer, Electrical Engineer and Mining Engineer, a line of questions was put by Mr Humphreys to Mr Gallagher as to whether senior employees of Ensham, albeit engaged as Superintendents or Managers, might also possess qualification as an engineer. Ensham's proposition was that references to "engineers" could have resulted in confusion among employees as to the proposed scope of the agreement thereby misleading those who took part in the vote. The exchange was as follows:

"... Could I put to you that the question which is put is again misleading because the reference to mechanical engineer, electrical engineer, mining engineer, which is broad, could cover the various roles to which I have taken you and to which you have identified that an engineering qualification is possible or indeed in some cases I think likely? - I don't agree with the proposition is misleading because I think that the average member of the workforce would interpret the question as, 'Do I perform these functions in my day-to-day role?' If they are obviously fortunate enough to have completed an engineering degree and they're in a different team, if they're not performing the functions of an engineer you would assume that they wouldn't vote as an engineer or cast a decision as an engineer.

Again you used the word "assumption". That underpinned your whole response, didn't it? That was an assumption you made? Yes.

Can I put to you that in particular the mechanical superintendent MEM and the electrical superintendent MEM, who you indicated I think were more than likely to have an engineering qualification, actually work as engineers in their role? Yes, you can put that to me, but I would like to preface that the major concern with - obviously not a concern, the major rationale for not seeking a cohort with them is because on (indistinct) they're considered senior management which is pretty standard within the industry, Mr Humphreys, and I would put it back, as well, and say that most employers don't seek to have MEMs or EEMs within agreements even if you do get the scope to cover them.

So if I understand that answer, your suggestion or your assumption is that when a coal mine worker went to vote on this and saw the group as being made up of mechanical engineers, that coal mine worker was to in some way divine that it was - the group represented there did not include those people in yellow who perform day to day engineering functions? If we sought to include superintendents within the cohort, Mr Humphreys, we would have to be very clear about that with the members, mainly because obviously there is a senior management function there, so I would say if we did seek to cover them in our cohort I would have been very explicit about that fact.

And you would have been very explicit because you know it's important for people when they vote to have clarity as to the group they're voting for? Yes."[32]

• [74] Mr Gallagher was also questioned about his communication with Vero while voting was open. Mr Gallagher gave evidence that on 9 May, while voting was still open, he received from Vero a "rundown of the voters" in the form of a list. The list contained employees' names, email addresses and the dates and times at which a vote was cast. Mr Gallagher accepted that he could have deduced from the list who had voted but that the list did not contain any information as to which way those employees had voted. Mr Gallagher also accepted that after receiving the list, he would likely have made phone calls to those who had not voted. Mr Gallagher, however, denied ever pressuring employees to vote. A proposition was put to Mr Gallagher that the integrity of the electronic vote was somehow compromised because confidentiality of the voters was not maintained. The exchange was as follows:

"Now, can I put to you that if a person had not voted and received a phone call from you asking them to vote, I'll put it in neutral terms, that would disclose to the person that the vote was not at that point confidential? I think you're getting confused about the confidentiality question. The confidentiality question and the reason we put it in that statement is not confidentiality in the sense of obviously if you're a union member, we know your contact details, we know where you work, what position you're in. The confidentiality question is a question of whether or not their details and how they decided to cast their independent vote and whether or not that would be supplied to their employer and so

Mr Gallagher, you've given evidence previously that the confidentiality of the voting process was an important part of the integrity of the process? Yes.

What I'm putting to you is that by gaining access during the period of the vote to the names of the people who'd voted and therefore allowing you to work out who hadn't voted, is a gross breach of the confidentiality of the voting process? I disagree because if I've done handwritten petitions and I would see the names and details of the people on the handwritten petitions as well. It is a common practice when you're going for a majority support determination to come through."[33]

• [75] In relation to the revised list of 71 names of employees provided by Ensham on 26 July 2022, Mr Gallagher said that he held concerns that the revised list provided by Ensham may have included employees who were not members of the Group when the ballot was conducted in May 2022. As such, he instructed APESMA's legal representative to seek further clarification from Ensham in relation to the "difference in the numbers of employees in the cohort submitted by each party to the Commission" and "the basis of that difference so that [APESMA] can understand and address that issue in the proceeding". By an email dated 31 August 2022, Ensham's legal representative stated that:

"We are instructed that the list provided by our client was current as at the date it was provided to the Commission. We are further instructed that our client is still investigating whether there has been any change to the cohort since that time, and we will respond on that issue in due course. However, our client anticipates that any changes will be minimal."

• [76] Regarding the one person who voted in favour of bargaining but whose name did not appear on any lists provided by Ensham, Mr Gallagher's evidence, which was provided to the Commission on a confidential basis in relation to the identity of the person concerned, is that after the name of the person was disclosed to APESMA, he made further inquiries and had a telephone discussion with that person in early September 2022 regarding the person's employment circumstances with Ensham. Mr Gallagher noted that the person had left the employ of Ensham after participating in the electronic ballot. Mr Gallagher, however, maintained that the person identified should be counted for the purposes of determining majority at the time when the APESMA ballot was taken in May 2022.

• [77] After the filing of the present application, Mr Gallagher stated that he had continued to seek support from employees within the Group for enterprise bargaining. In this respect, Mr Gallagher noted that the total number of employees said by Ensham to be falling within the Group had continued to change throughout the course of these proceedings. Mr Gallagher noted that Mr Mifflin's witness statement, filed on 26 September 2022, indicated that "Ensham currently has 73 employees in APESMA's Group (including a new starter on 5 October 2022), plus 3 vacant staff positions at the Mine."

• [78] Mr Gallagher further noted that, in response to the Order for production of documents issued by the Commission on 6 October 2022, Ensham produced three separate lists of employees. Each of the lists is arranged by reference to the positions of which the Group is comprised, although the names of the employees are redacted.[34] The lists are said to reflect the total number of employees in the Group at different points in time. The total number is stated to be 77 employees as of 5 May 2022, 74 employees as of 11 August 2022 and 73 employees as of 11 October 2022.

• [79] Notably, all three lists included four ERPL Stratum 2 positions, namely, "Building + Services Superintendent", "Mechanical Superintendent / MEM", "Electrical Superintendent / EEM" and "Technical Services Superintendent", notwithstanding the fact that the Group is identified by APESMA with reference only to Stratum 1 positions.

• [80] In light of that information, Mr Gallagher stated that he made contact with 5 different members of APESMA between 4 October and 10 October 2022 whom Mr Gallagher believed to be employees occupying positions that fall within the Group. To protect the identity of these employees, four of the employees have been described by Mr Gallagher as E1, E2, E3 and E4. The unredacted names and positions of the 5 employees have been provided to the Commission.

• [81] Mr Gallagher described his conversations with each of the employees between 4 October and 10 October 2022 for the purposes of seeking their support for bargaining with Ensham. Each of the employees provided a signed Declaration of Support to Mr Gallagher. These signed Declarations are appended to Mr Gallagher's statements of 10 October and 11 October 2022 and the unredacted copies have been provided to the Commission. The content of these Declarations is the same which states that:

By signing the below document you are providing authority to the Association of Professional Engineers, Scientists and Managers Australia (Collieries' Staff Division) to provide this document to the Fair Work Commission on a confidential basis.

This will be done to indicate your support for collectively bargaining with your employer (Ensham Resources Pty Ltd).

I am currently an employee of Ensham Resources Pty Ltd and I was an employee between 4 and 11 May 2022. I am employed in the position of

I wish to bargain for an enterprise agreement with my employer. I confirm that I did not cast a ballot when voting was open between 4 and 11 May 2022.

By signing this document, I confirm that I was supportive of the commencement of bargaining between 4 and 11 May 2022 and I remain supportive of the commencement of bargaining with my employer for an enterprise agreement.

• [82] Mr Gallagher said he received the signed Declaration from E1 on 7 October 2022 as an image sent by SMS. E2 and E3 provided their signed Declaration to Mr Gallagher on 7 October 2022 by return emails. Mr Gallagher forwarded the Declaration to E4 via DocuSign and after it was signed by E4 on 9 October 2022, the signed copy was automatically returned to Mr Gallagher. Mr Gallagher further stated that by an email of 10 October 2022, he received an additional Declaration signed by a fifth employee. In total, five additional employees have signed a Declaration indicating support for bargaining. It is on that basis that APESMA contends that, together with the MEU member, there is a total of 41 employees who have indicated a desire to bargain as at the date of the hearing, even if the employee who has subsequently left employment with Ensham is excluded from the total.

• [83] In relation to the fairly chosen requirement, Mr Gallagher stated that the Group was not chosen based on factors such as age, gender or the commencement of their employment with Ensham. As is common in underground black coal mines, Mr Gallagher said that the operation of the Mine is generally divided between the operators and staff employees. This distinction is a common one recognised by, for example, Schedule A and Schedule B of the Black Coal Mining Industry Award 2020. Further, the Coal Mining Safety and Health Act 1999 (Qld) (Coal Mining Act) requires the employment of a Site Senior Executive (SSE) who is the most senior officer employed by the coal mine operator. The SSE at Ensham is Mr Mifflin. Under the Coal Mining Act, Mr Mifflin is required to provide for adequate supervision, inspection, planning and leadership of the coal mining operations.

• [84] Mr Gallagher said in his experience and in the context of underground black coal mines, the SSE publishes an organisation chart setting out the structure of the management of the coal mine for the purposes of meeting the obligations imposed by the Coal Mining Act amongst other reasons. The organisation chart of Ensham is available on its intranet.

• [85] Mr Gallagher notes that the chart identifies positions by reference to levels within Ensham's four management strata. The SSE occupies the most senior position which is referred to as an "ERPL Stratum IV Role". The next most senior management positions are designated as "ERPL Stratum III Roles". Superintendents occupy "ERPL Stratum II" roles, while the employees within the Group are at "ERPL Stratum I".

• [86] In terms of the reporting structure, Mr Gallagher explains that the Group is comprised of those persons at ERPL Stratum I who report to those who occupy the following positions: (a) the Production Superintendent (ERPL Stratum II); (b) the Underground Technical Services Superintendent (ERPL Stratum II); (c) the Mechanical Superintendent/MEM (ERPL Stratum II); and (d) the Electrical Superintendent/EEM (ERPL Stratum II). Each of those persons in turn reports to the (a) the Underground Mining Manager (ERPL Stratum III) and (b) the Underground Maintenance Manager (ERPL Stratum III).

• [87] In addition, a number of bases were advanced by Mr Gallagher in support of the assertion that the Group is fairly chosen, geographically, operationally and organisationally distinct. In this respect, Mr Gallagher stated that:

(a) The Group work in the underground operations and are all recognised at the ERPL Stratum I level and have designed reporting lines consistent with the Chart;

(b) The Group are all in roles associated with the planning, production, execution and or supervision associated with underground coal mining;

(c) The Group work in the underground operation as distinct from any employees in the Open Cut operation or office administration. There are significant differences between the open cut and underground highlighting the distinctiveness of each operation which includes the following:

1. The Coal Mining Act and the associated regulations create a distinction between ERZ Controllers (required underground) and Open Cut Examiners (required for open cut mining).
2. The machinery used between the two operation has significant differences. For example, the open cut mine uses draglines where the underground mine uses continuous miners.
3. The coal in the open cut is extracted from at or near the surface whereas underground the coal is extracted from deep beneath the surface requiring workers to spend their shift deep beneath the surface. The underground workers work in confined spaces, operate in tunnels, must be familiar with geological conditions, tend to take their breaks underground and there is generally limited to no interaction between the open cut and underground staff. The conditions between the open cut and underground are markedly different as a result.
4. There are different tests required for employees working in the open cut and underground. The inductions are different.
5. Open-cut coal operations involve significant disturbance of the above ground surface. Principally, this involves the extensive removal of layers soil and rock debris to expose the coal seams for mining. This involves the use of different methods, techniques and machinery to that used underground.
6. Ensham Resources owns a dragline open-cut, with one unactive dragline. The exposed commodity is then transitioned for processing via the use of excavators and trucks for processing and export.
7. Ensham Resources has developed haul roads for the open-cut operation which are separate to the underground operation, each operations utilise separate main entrances and office facilities.
8. Ensham's current open-cut operation is not producing, with the mine set to be placed into care and maintenance.
9. The underground mine is a "bord and pillar operation" with continuous miner production units producing coal and sending it to the surface stockpile via a series of conveyor belts.
10. Underground coal production limits the disruption to the surface with majority of production and disturbance occurring under the surface. This presents significantly different operational requirements, work environments and potential workplace hazards.
11. The composition of the workforce and the skills required can be contrasted to show a distinct separation. This is especially clear when viewing the mines within the context of the skills and requirements imposed by the Coal Mining Act on each operation.
12. Given the current operations at the open-cut, the distinction can also be made that the underground mine is the only fully operational mine at the current site.

(d) The Group is focussed on delivering the production of the asset (coal) as opposed to the administration and associated functions. The Group are recognised internally according to the Chart as being in separate and distinct line of management.

(e) Every employee at the Mine is technically accountable to the SSE. However, on a practical level, there are intermediate managers that employees report to ahead of the SSE. The Group are recognised internally as being in a distinct group reporting one level up to the Underground Mining Manager and the Underground Maintenance Manager, as compared with the other ERPL roles which report through Surface Operations Manager, Health, Safety & Environment Systems Manager and Commercial Manager.

(f) There is a clear geographical distinction between the underground mining operations, the open cut operations, and the administration side of the business with the Group focussed on the underground operations only as compared with the other employees whose focus is on other functions within the business. Some of the employees in administration roles, that is those who report to the Commercial Manager, work from home and are not necessarily present on site. With respect to the open cut operations, from my observations there are separate entry and exit points. There is a separate carpark for the underground and open cut areas. The open cut and underground have different crib areas. The administration staff or open cut staff do not take their crib underground (or have any reason to ever be underground) whereas the Group do. There is limited interaction between the open cut and underground staff.

(g) The Group is likely to pursue different conditions and entitlements than someone in the office or open cut. For example, the Group, will likely pursue disability allowances associated with the conditions in which they work underground such as dirt money, wet money, and confined spaces allowances which are not common to open cut and administration roles. There are also different performance metrics between underground and open-cut employees which may influence what is pursued in bargaining.

(h) The work demands and patterns between the Group and other employees is distinct. The office-based staff in the ERPL Stratum I classification primarily workday work across a Monday to Friday roster pattern whereas a lot of the Group would work on a rotating shift roster.

(i) The nomination of the Group had been the subject of extensive discussion and consultation with employees and our APESMA employee representatives. The Group was nominated after discussions in which members of the Group indicated that they would like to pursue a common enterprise agreement."

• [88] In its submissions, APESMA summarised the factual background to the present application as follows. Ensham is the operator of the Ensham Coal Mine near Emerald in Central Queensland. The operations are comprised of: (a) a large underground black coal mining operation which employs a bord and pillar style of mining and utilises continuous miners; (b) an open cut black coal mining operation; and (c) a coal handling and processing plant (the CHPP). Each operation is said to utilises specific groups of workers who work only in those operations and employees of the open cut and CHPP operations do not work in the underground operations.

• [89] APESMA states that the present application is only concerned with Ensham's underground mining operation. The Group of employees, the subject of the present application, are those who are employed in Ensham's underground mining operations and occupy positions, classified as "ERPL Stratum 1" - the first level in Ensham's organisational structure. A copy of the organisation chart (dated January 2022) was appended to Mr Gallagher's statement of 7 September 2022. Another copy, dated September 2022, was also provided by APESMA by way of an aide memoire.

• [90] Positions under Ensham's organisational chart are categorised into 4 Stratum Levels and grouped according to the lines of report. The four Strata are ERPL Stratum 1 to ERPL Stratum 4. The Site Senior Executive (SSE) occupies the most senior position which is referred to as an "ERPL Stratum IV Role". The next most senior management positions are designated as "ERPL Stratum III Roles". Superintendents occupy "ERPL Stratum II" roles, whilst the employees within the Group are at "ERPL Stratum I"

• [91] APESMA states The ERPL Stratum 1 positions occupied by employees in the Group are also classified as "staff employees" in Schedule B of the Black Coal Mining Industry Award 2020. Within the Group, employees are employed in the following roles:

• [92] According to APESMA, all of the employees within the Group report to the Underground Mining Manager and the Underground Maintenance Manager through the Production Superintendent, Underground Technical Services Superintendent, Mechanical Superintendent and Electrical Superintendent. Both APESMA and the MEU have members within the Group.

• [93] APESMA submits that there is no current enterprise agreement which governs the terms and conditions of employment of the Group at Ensham. Their terms and conditions of employment are governed by the Modern Award and by common law contracts of employment. However, members of Ensham's production workforce in roles covered by Schedule A of the Award are now covered by the Ensham Mine Employees Enterprise Agreement 2021.

• [94] APESMA said that it is a bargaining representative of employees who will be covered by the proposed agreement and entitled to make the present application under s. 236 of the FW Act. APESMA has members who are employed by Ensham in the roles that fall within the scope of the proposed agreement. Accordingly, it is submitted that APESMA is a bargaining representative by operation of s. 176(1)(b) of the FW Act.

• [95] In relation to the requirement in s. 237(2)(a) as to whether a majority of the relevant employees want to bargain, APESMA notes that s. 237(3) permits the Commission to use any method the Commission considers appropriate to work out whether a majority of employees want to bargain. APESMA submits that the confidential comparison of evidence about the wishes of employees, with a list of the relevant cohort of employees provided by the employer, is a method which has been used by the Commission to determine whether the majority of the relevant employees wish to bargain. In support of this submission, APESMA notes that the Explanatory Memorandum of the Fair Work Bill 2008 recognised that the method adopted to determine if the majority of the employees wish to bargain may be a secret ballot, survey, written statements or a petition. Thus, it is submitted that it is both open to the Commission and appropriate in the present matter to rely upon the evidence of the Vero ballot to form a view about the wishes of the employees in the Group.

• [96] APESMA submits that it is uncontroversial that the point in time at which the Commission must be satisfied that the requirement in s. 237(2)(a) has been met, is a matter within the Commission's discretion. Ensham contends there are some 71 employees in the Group, but APESMA contends that the list submitted by Ensham was not reflective of the time period at which the list was complied by APESMA in May 2022. Regardless, APESMA submits that there were some 36 employees within the Group who wish to bargain and even on Ensham's assessment of the number of employees within the Group, those 36 employees represent a majority.

• [97] In relation to the fairly chosen requirement in s. 237(2)(c) of the FW Act, s. 237(3A) provides that the Commission must taking into account whether the group is geographically, operationally or organisationally distinct. APESMA submits that distinctiveness, as contemplated in s. 237(2)(c), is not an absolute concept; distinctiveness is a matter of degree, and it is not necessary that a group be unique for it to be regarded as distinct to some degree from other groups on one of the bases in s. 237(2)(c); and equally, it is not necessary, in order for a group to be regarded as fairly chosen, for the group of employees to be geographically, operationally or organisationally distinct.

• [98] Rather, APESMA submits, distinctiveness is but one factor to be considered in determining the overarching question whether the group is "fairly chosen", and a factor that tells in favour of that conclusion. Where the group is not distinct in one or more of the relevant respects, other factors may nonetheless weigh in favour of a conclusion that the group is fairly chosen. Further, APESMA states that the word "fairly" suggests a requirement that the group not be selected on an arbitrary or discriminatory basis or based on criteria which would have the effect of undermining collective bargaining. In this respect, APESMA submits that the Commission can be satisfied that the Group is fairly chosen for the following reasons:

• The Group in question has not been selected on an arbitrary or discriminatory basis. The employees constitute a genuine operational and organisational grouping, as they are comprised of the ERPL Stratum 1 roles in the Respondent's underground mining operations.
• The Group is operationally distinct from other employees due to their engagement in the Respondent's distinct productive activity of extracting coal from its underground mine. They are distinct from employees working in the Respondent's open cut mining operation, and those engaged in the Respondent's commercial and administrative functions.
• The Group is operationally distinct from the Superintendents and Managers in ERPL Stratum II and ERPL Stratum III roles. It is appropriate for those in senior management roles to be excluded from bargaining. The Group is also operationally distinct from the production and engineering workforce, who are covered by their own enterprise agreement.
• There is unlikely to be only one fair manner of selecting a class of employees to be covered by an agreement, or to engage in bargaining. However, in considering an application for a majority support determination, the Commission is not required to determine the fairest possible grouping; rather, the Commission's task is to guard against manifest unfairness in the selection of a proposed cohort of employees.
• The distinctiveness of the Group in the above respects tells in favour of a conclusion that the group is fairly chosen.
• In circumstances where the employer declines to engage in collective bargaining with any cohort of its staff employees, it cannot identify any prejudice or unfairness in the selection of the employees, the subject of the present application

• [99] In relation s. 237(2)(d) of the FW Act, APESMA submits that the Commission can be satisfied that it is reasonable to make a majority support determination in the present case on the basis of Mr Gallagher's evidence which indicates the relevant Group of employees have been concerned about their terms and conditions of employment since 2021 and wish to bargain.

• [100] The MEU did not advance its own submissions but has indicated that it supports the submissions made by APESMA. Evidence for the MEU was given by Mr Brunker, District Vice President of the MEU Queensland District.

• [101] Mr Brunker stated that on 29 January 2021, he wrote to Mr Mifflin to request the initiation of bargaining for an enterprise agreement covering ERZ Controllers/Deputies employed at the Ensham Mine. No response was received from Mr Mifflin. Mr Brunker followed up with another email to Mr Mifflin on 17 April 2021 to which Mr Brunker again did not receive a response. As a result, Mr Brunker said that the MEU decided to partner with the Collieries Staff Division of APESMA to request the commencement of bargaining for an agreement to cover a broader group of employees.

• [102] Mr Brunker said that the MEU and APESMA sent joint correspondence to Mr Mifflin on 11 February 2022 seeking Ensham's agreement to commence bargaining for an enterprise agreement. Mr Mifflin replied to this letter on 17 February 2022 declining to bargain and stating that Ensham intended to continue engaging the relevant employees on individual common law contracts with individual salaries.

• [103] After Ensham refused to bargain, Mr Brunker said that APESMA organised an online survey of employees who would be covered by an agreement with the scope sought by both APESMA and the MEU. Mr Brunker stated that he was provided the Declaration of Results by Mr Gallagher which identified 57 eligible voters, 36 voted in favour of bargaining and 19 did not vote. On 8 June 2022, the MEU and APESMA jointly wrote to Mr Mifflin to provide the survey results and again request that Ensham commence bargaining for an enterprise agreement. Mr Mifflin's response was again that Ensham declined to bargain.

• [104] Mr Brunker said that Mr Gallagher requested his assistance to follow up with employees who did not vote in the survey to determine their support for bargaining. On 27 July 2022, Mr Brunker sent Mr Gallagher a list of MEU members in roles that would be covered by the proposed agreement. Mr Gallagher then informed Mr Brunker that there were two MEU members who did not vote in the online survey according to the voting report.

• [105] Mr Brunker knew both of those members that Mr Gallagher was referring to and he knew that they were employed by Ensham at the time of the online survey. According to Mr Brunker, both of these members had previously approached him and told him that they wanted the union to push for an enterprise agreement that covered them at Ensham.

• [106] On or about 10 August 2022, Mr Brunker contacted both of those members to discuss the application for a majority support determination. Mr Brunker said he explained to them that APESMA and the MEU had requested that Ensham commence bargaining for an enterprise agreement. Mr Brunker also explained the scope of the agreement that was being sought, that the unions had applied for a majority support determination in the Commission, and that Mr Brunker was seeking to add their names to the list of employees who supported bargaining.

• [107] Mr Brunker told the members that he would send them a draft statement by email for them to indicate their support for bargaining for the proposed enterprise agreement. Mr Brunker then asked them to sign a statement and return it to him by email if they were in support of bargaining. On or about 11 August 2022, Mr Brunker received signed statements in support of bargaining from both members via email. During the Case Management Hearing before the Commission on 12 August 2022, Mr Brunker said he was made aware that one of those members had already completed the online survey. Mr Bruner said he was not aware of this before that time.

• [108] Mr Mifflin, General Manager Operations & Site Senior Executive, gave evidence on behalf of Ensham. Mr Mifflin reports to Mr Steven Kovac, Chief Executive Officer of Idemitsu Australia Pty Ltd (Idemitsu). Idemitsu is a party to an unincorporated joint venture with Bligh Coal Ltd and Bowen Investment (Australia) Pty Ltd (the Joint Venture). Mr Mifflin said that the Joint Venture owns Ensham Coal Mine and, for the purposes of the Coal Mining Act, Ensham is the coal mine operator of the Mine responsible for managing the Mine on behalf of the Joint Venture. Idemitsu provides head office corporate services to Ensham and Ensham updates the Joint Venture formally each quarter and more regularly on an as-needed basis on Mine-related matters including commercial and financial matters, Mine planning, Mine operations and performance, coal sales, safety and health matters and compliance issues.

• [109] Mr Mifflin was appointed as the Site Senior Executive (SSE) of the Mine from October 2020 in accordance with the Coal Mining Act, the most senior employee engaged by Ensham. He was also appointed as General Manager of the Mine from 7 May 2022. Under s. 25 and s. 42 of the Coal Mining Act, Mr Mifflin stated that he holds responsibilities including obligations to ensure the risk to persons from coal mining operations at the Mine is as low as reasonably achievable and to develop and implement a Safety and Health Management System (SHMS) for all persons at the mine.

• [110] Mr Mifflin explained that his responsibilities as General Manager and SSE include: managing the safety of the Mine, ensuring all personnel discharge their obligations and accountabilities under the SHMS and relevant legislation, ensuring the statutory obligations of the SSE are met in all aspects of the operation, ensuring mine plans have been assessed for safety risks and appropriate controls are developed to achieve an acceptable level of risk, ensuring the successful implementation of the critical controls process across the operation and maintaining a perpetual safety improvement action plan which is developed from audit results, incident investigations and hazard reporting. Mr Mifflin is also responsible for managing operations at the Mine, including ensuring mining activities are carried out in accordance with mine plans, designs and survey controls; achieving production targets within financial budget; identifying and implementing continuous improvement initiatives; and maintaining relationships with stakeholders, including immediate neighbours to the Mine.

• [111] In relation to the coal mine at Ensham, Mr Mifflin explained that the mine comprises an underground mine operating 24 hours a day, 7 days a week. It produces thermal coal for export and domestic power generation. The underground operations currently use the bord and pillar mining method with up to five continuous miner production units producing coal and sending it to the surface stockpile via a series of conveyor belts. The coal is transported from the stockpiles using large road trains to the coal preparation plant where it is crushed and screened

for size. It is then loaded onto trains through the Rail Load-Out Facility and transported via rail to Gladstone Port for shipping and to the Gladstone Power Station for domestic electricity generation.

• [112] With respect to the operations at the mine, Mr Mifflin stated that the open cut mining operations ceased around June 2022 and the mine's operations at the underground and surface operations, including the extraction of coal, the preparation of coal at the CHP, and the maintenance of plant and equipment, are all integrated functions which form part of the Mine's production supply chain. Mr Mifflin said that the mine supports a workforce of approximately 650 people including employees and contractors and the workforce is a mix of local residents, drive-in and drive-out, and fly-in and fly-out personnel.

• [113] In around November 2012, Mr Mifflin stated that Ensham integrated the open cut and underground operations and became "One Ensham". In an email sent to all staff by the current CEO dated 6 September 2013, it is stated that "As you are all aware, in November 2012 the Ensham Underground officially moved from the project phase and we saw the integration of the Open Cut and Underground operations into the 'One Ensham' operation". Mr Mifflin said that in recognition of the milestone, Ensham distributed to all employees a polo shirt printed with the phrase: Open Cut & Underground - ONE ENSHAM - Integration November 2012.

• [114] Mr Mifflin indicated that since November 2012, Ensham has operated as one mine for all purposes and it does not operate according to a distinction between underground and surface operations. It is said that "One Ensham" is reflected in the following practices and characteristics of the operations at the mine:

1. There is one Safety and Health Management System that covers the Mine at one location with one SSE. In Mr Mifflin's experience working at two other mines, the open cut and underground mine were at two different locations, which meant the mine had two SSEs and two SHMSs.
2. The Mine has a unique management structure under the Coal Mining Act. In his experience working at two other coal mines, commercial roles were not included in the Coal Mining Ac management structure. At Ensham, he believed it is necessary to include these roles because the purchase of supplies and equipment and contractual negotiations is critical to the Mine's one operation. Further, Ensham does not delineate the management structure according to underground operations, surface operations and "the administration side of the business" as referred to by APESMA. Rather, these areas form part of one management structure and are delineated under the Coal Mining Ac according to seniority and responsibilities.
3. The Mine has one village on the mining lease. All staff and employees are based at the same camp with access to common facilities.
4. The Mine's contracts with suppliers and utilities providers cover the Mine as one operation. Equally, there is one system for paying invoices for commercial supplies and equipment.
5. The Mine prepares financial reports for the Mine as one operation.
6. There is one base induction for all employees to enable them to work at the Mine. There is an additional induction for roles working underground.
7. There are a number of Standard Operating Procedures which apply to the Mine as one operation - for example, mobile plant and light vehicles, drug and alcohol, fatigue, etc.
8. There have been a number of enterprise agreements covering all mineworkers at the open cut and underground. As currently reflected by the Ensham Mine Employees Enterprise Agreement 2021 (Ensham EA), it does not have separate classifications for the underground and open cut, and it has the same remuneration levels for underground and open cut workers and combined bonus system."

• [115] According to Mr Mifflin, employees of Ensham are broadly divided into (a) production and engineering roles whose employment is primarily regulated by the Ensham EA and (b) "staff" roles for employees who are employed under common law contracts. Schedule B of the Black Coal Mining Industry Award 2020 covers many or most of the "staff" roles. It is said that Ensham currently employs 107 "staff" (including a new starter on 5 October 2022) and there are 5 vacant staff positions at the Mine.

• [116] With respect to the organisation chart of Ensham (dated September 2022), Mr Mifflin described that "Ensham staff are depicted according to the following levels: (a) Stratum 4 - General Manager; (b) Stratum 3 - Managers; (c) Stratum 2 - Superintendent and senior professional roles; and (d) Stratum 1 - Supervisors, technical and professional roles, officers and administration. This stratum includes ERZ Controllers, Shift Supervisors, and coordinators - whether in mining, maintenance, technical, safety or training roles, accountants and HR, administration, purchasing and supply officer roles."

• [117] Mr Mifflin said that as a General Manager and SSE, he does not differentiate in an operational sense between employees by reference to Strata and during his time at the Mine, he said he had never heard other Mine employees differentiating as between employees by reference to their Strata. In this regard, Mr Mifflin advanced several reasons as to why he considered that employees are not so differentiated:

1. The Stratum at which a role is placed is dependent on the level of responsibility of the role and the timeframe over which the impact of their decisions may take effect.
2. The remuneration and benefits structure aligns with the Stratum - for example, the Short Term Incentive Program percentage, whether a motor vehicle is provided, and differing financial authorities. The salary is role-specific and market driven, and employees on the same Stratum may receive different salary levels. A role in Stratum 1 may receive a salary higher than a role in Stratum 2.
3. Further, the Stratum is not wholly specific to the Coal Mining Act, supervision or the nature of duties. There is usually some overlap in responsibilities and job functions between employees in different Strata. For example, Stratum 2 engineers will perform the same work as Stratum 1 engineers and they work collaboratively to produce the plan for operations.
4. The existing industrial arrangements for staff provide the Mine with administrative and operational flexibility. For example, an employee living in Emerald may receive a housing allowance, whereas a person living on the Gold Coast may receive a fly-in and fly-out benefit, regardless of the stratum their role has been appointed to.

• [118] Notwithstanding Mr Mifflin's position that he does not differentiate on the basis of employees' Strata levels, he set out in his witness statement a list of all of the positions each Stratum level is comprised of. The list is set out in full as follows:

Stratum 4 is the most senior Stratum and comprises me, as the General Manager Operations/SSE given I have ultimate responsibility for safety and operations at the Mine.

1. Underground Mining Manager;
2. Underground Maintenance Manager;
3. Deputy General Manager;
4. Project Manager - Rehab;
5. Surface Operations Manager;
6. HSECT Manager;
7. Commercial Manager.

1. Production Superintendent;
2. Underground Technical Services Superintendent;
3. Mechanical Superintendent/MEM;
4. Electrical Superintendent /EEM;
5. Building & Services Superintendent;
6. Mechanical Superintendent/MEM (Open Cut);
7. Senior Geologist;
8. Mining Superintendent (Open Cut);
9. Superintendent Environment;
10. Health & Safety Systems Superintendent;
11. Training Systems Superintendent;
12. Procurement & Contracts Superintendent;
13. Commercial Superintendent;
14. Supply Superintendent.

1. ERZ Controller;
2. Shift Supervisor/Undermanager;
3. Ventilation Officer;
4. Electrical Supervisor;
5. Mechanical Supervisor;
6. Control Room Operator;
7. Production Coordinator;
8. Conveyor, Outbye & Infrastructure Maintenance Co-Ordinator
9. Electrical Maintenance Coordinator;
10. Mechanical Coordinator - Diesels Underground;
11. Overhaul Coordinator - Underground;
12. Emergency Response Coordinator;
13. Underground Compliance Coordinator;
14. Outbye Coordinator;
15. Maintenance Planner - Underground;
16. Underground Mechanical Engineer;
17. Underground Electrical Engineer;
18. Mining Engineer (Underground);
19. Senior Mining Engineer;
20. Surveyor;
21. Health Coordinator;

1. Assurance and Risk Coordinator;
2. HSECT Administration Officer;
3. Training System Admin Officer;
4. Commercial Accountant;

1. Commercial & Payroll Administration Officer;
2. Purchasing Administration Officer;
3. Supply Officer;
4. Maintenance Administration Officer;
5. Sealing & Ventilation Coordinator;

Stratum 1 roles work either a 5/2 roster or a 7/7 roster"

• [119] On or about 11 February 2022, Mr Mifflin received a letter from Mr Brunker of the MEU and Mr Gallagher of APESMA, requesting the initiation of bargaining for an enterprise agreement to cover a list of positions at Ensham. On or about 17 February 2022, Mr Mifflin replied to the letter correspondence and the content of his reply was to the effect that "Ensham's practice is to deal directly with each employee as an individual and, where appropriate, in small workgroups of similar roles, and that employees are able to, and have, raised issues regarding their terms and conditions of employment and we respond accordingly" and "Ensham intends to continue with our practice as described above and therefore does not require a collective enterprise agreement in these circumstances."

• [120] On or about 8 June 2022, Mr Mifflin received a reply letter from Mr Gallagher indicating a process had been undertaken and the process confirmed that 36 out of 57 eligible voters supported bargaining. Mr Mifflin said he also received the Declaration of Results and was provided with further information by Mr Gallagher as to the proposed scope of the agreement:

As stated in our original correspondence, both APESMA and the MEU are putting forward a scope to cover permanent production staff employees at the Ensham Underground Mine. This would include distinct employees within statutory positions recognised under the Coal Mining Health & Safety Act (CMHSA), trade qualified staff, engineers and production support staff related to the production and mining of black coal. These employees perform duties and responsibilities related to supervisory, production, safety, and planning roles.

This would not include administrative, financial, or human resource staff, whose employment is related servicing the internal processes of the site and not directly related to commodity output.

Therefore, we propose that the Agreement be titled 'Ensham Resources Production Staff Agreement 2022' and include the following positions which are directly employed by Ensham Resources.

• [121] Mr Mifflin stated that he replied to Mr Gallagher's correspondence on 13 June 2022 raising three matters as follows:

1. On the Vero "Declaration of Results", there is a diagram entitled "Fair Work Ombudsman Fact Sheet" which said there were no "no" votes, but on the same page it is noted there were two "no" votes;

1. The Vero "Declaration of Results" refers to a "petition", but there is no information as to the question which was put to employees and over what time period the "petition" occurred;

1. The Vero "Declaration of Results" refers to 57 "eligible" voters, but it is unclear who determined there were 57 eligible voters and the basis upon which they were deemed eligible.

• [122] Mr Mifflin received a reply from Mr Gallagher on or about 15 June 2022. In response to the question of how it was determined that there were 57 eligible employees, Mr Gallagher said that "the Unions determined the eligible voters based on the proposed scope put to the company and members occupying those positions."

• [123] In relation to the composition of the Group, Mr Mifflin indicated in his statement of 26 September 2022 that Ensham "currently has 73 employees in APESMA's Group including a new starter on 5 October 2022, plus 3 vacant staff positions at the Mine". In this respect, Mr Mifflin's evidence is that a number of staff changes occurred in the period between March and September 2022. This period either coincided with or took place after the initial discussions between APESMA and the Group in late 2021 and early 2022, the sending of invitation by APESMA to the Group regarding the electronic ballot, the period between 4 May and 11 May 2022 in which voting was open and the receipt by the MEU of a declaration of support on 11 August 2022. These changes related to the roles set out below.

"a. One new employee - Outbye Coordinator on 11 April 2022.

1. ERZ Controller on 15 March 2022 (from Ensham EA role)
2. UG Compliance Coordinator on 1 April 2022 (from ERZ Controller role)
3. ERZ Controller on 26 April 2022 (from Ensham EA role)
4. ERZ Controller on 5 May 2022 (from Ensham EA role)
5. Electrical Supervisor on 7 June 2022 (from Ensham EA role).

1. UG Mine Surveyor on 10 January 2022
2. Mechanical Supervisor on 31 March 2022
3. ERZ Controller on 21 March 2022
4. ERZ Controller on 13 May 2022
5. ERZ Controller on 20 May 2022
6. ERZ Controller on 11 June 2022
7. Electrical Supervisor on 7 September 2022
8. Ventilation Officer on 21 September 2022."

• [124] In response to Mr Gallagher's evidence which supports APESMA's contention that the Group is organisationally, operationally or geographically distinct, Mr Mifflin said that he disagrees with Mr Gallagher's evidence on the following bases:

• Ensham refers to itself as "One Ensham". It does not distinguish between underground operations, surface operations and what APESMA refers to as "the administration side of the business". Ensham's employees are distinguished based on whether they are Ensham EA roles or staff employed under common law contracts.

• The roles in APESMA's Group work across various locations at the underground area, including underground, the underground portal office which is located in ramp 3 on the surface, and the underground main office which is located on the surface. In particular:
  1. 36 employees work predominately underground. These include ERZ Controllers and Shift Supervisors/Undermanagers;
  2. 8 employees work predominately at the underground portal office. These include Trade Supervisors;
  3. 29 employees work at the underground main office. These include Ventilation Officers, Trade Supervisors, Control Room Operators, Production Coordinators, Maintenance and Infrastructure Coordinators, Maintenance Planners, Mechanical Engineers, Electrical Engineers, Mining Engineers and Surveyors. These roles perform service/support functions in offices on the surface, utilising computer programs to plan work processes and schedule equipment and infrastructure maintenance or in the surface workshops, supervising the maintenance and servicing of equipment.

• APESMA's Group work at the same location and alongside other roles at the underground area, such as:
  1. Mr Mifflin's role which is permanently located at the underground main office and goes underground from time to time.
  2. All roles including and underneath the Underground Mining Manager and Underground Maintenance Manager. They are permanently located at the underground main office. They work closely with APESMA's Group roles, coordinate work, and supervise Stratum 1 roles in the underground operations. These roles go underground from time to time.
  3. All roles including and underneath the Health, Safety & Environment Systems Manager. They are permanently located at the underground main office and regularly perform work underground alongside APESMA's Group. Given the open cut operations have concluded, the focus of these roles is predominately on the underground operation.
  4. All roles including and underneath the Commercial Manager. They are occasionally located at the underground main office. Given the open cut operations have concluded, the focus of these roles is predominately on the underground operation. These roles support APESMA's Group and other Stratum 2 and 3 roles at the underground.
  5. The Senior Geologist (Stratum 2) reporting to the Surface Operations Manager. Whilst his office is located at the Open Cut offices, he performs his duties at the underground mine for coal quality and strata issues on an as needed basis.

• The following roles provide direct services and support to the underground production function:
  1. Two roles reporting directly to the Underground Mining Manager: i. Compliance Coordinator (Stratum 1); ii. Emergency Response Coordinator (Stratum 1);
  2. Eight roles in HSET responsible for safety and health matters and training to enable personnel to work at the underground mine: i. Assurance and Risk Co-ordinator (Stratum 1); ii. Health & Safety Systems Superintendent (Stratum 2); iii. Safety Coordinator (Stratum 1); iv. Health Coordinator (Stratum 1); v. Training Systems Superintendent (Stratum 2); vi. Training Coordinator (Stratum 1); vii. Training Systems Admin Officer (Stratum 1); viii. HSECT Admin Officer (Stratum 1).
  3. Four roles responsible for the purchase and provision of supplies for the underground mining operation: i. Supply Superintendent (Stratum 2); ii. Purchasing Officer (Stratum 1); iii. two Supply Officers (Stratum 1).
  4. One role responsible for identifying and assessing the location, quantity and quality of coal, being the Senior Geologist (Stratum 2);
  5. Five roles responsible for providing maintenance services to the underground: i. Mechanical Superintendent (Stratum 2); ii. Mining Superintendent (Stratum 2); iii. Building & Services Superintendent (Stratum 2); iv. Maintenance Coordinator (Stratum 1); v. Maintenance Administration Officer (Stratum 1).

• The roles outlined in the preceding paragraph and all other roles including and underneath the Health, Safety & Environment Systems Manager, Commercial Manager and Surface Operations Manager, also perform work across the surface operations.

• The following roles in APESMA's Group do not have supervisory responsibilities: a) Maintenance Planners; b) Control Room Operators; c) Surveyors; and d) Ventilation Officers.

• The following roles omitted from APESMA's Group have supervisory responsibilities: a) Superintendents; b) Underground Mining Manager; c) Underground Maintenance Manager; d) Commercial Manager; e) HSET Manager; f) Surface Operations Manager; and g) Mr Mifflin's SSE role.

• APESMA's Group reports to Stratum 2 roles (Production Superintendent, Underground Technical Services Superintendent, Mechanical Superintendent/MEM, Electrical Superintendent), who report to Stratum 3 roles (Underground Mining Manager, Technical Services Manager and Underground Maintenance Manager). Only limited roles report to the Underground Technical Services Superintendent, being Surveyors, Mining Engineers and Ventilation Officers.

• The roles including and reporting to the Health, Safety & Environment Systems Manager and Commercial Manager interact with APESMA's Group and form part of the overall operations at the Mine in various areas, including:
  1. Compliance with Environmental Management Plan underground- the underground area is audited by the Environmental Coordinator and Superintendent Environmental for compliance with the Mine's Environmental Management Plan.
  2. Training, authorisations and competencies of underground personnel - the Training Systems Superintendent and two Stratum 1 roles underneath are responsible for training, assessing and authorising the underground staff. They are also responsible for monitoring currency of authorisations and ensuring competencies are refreshed when required. This function is linked to the Mine's safety obligations under the Coal Mining Act and requirements of Recognised Standards.
  3. Health and safety at the underground - the Health & Safety Systems Superintendent and four Stratum 1 roles underneath are responsible for health and safety matters for underground employees. This includes monitoring health and hygiene, dust levels, performing fit testing for respiratory devices, monitoring ear protection, undertaking job fit tests for injured workers, coordinating coal board medicals, testing welding fumes, coordinating return to work and injury management. They are responsible for incident and hazard reporting, investigations, health and hygiene monitoring, all of which are requirements of the Coal Mining Act to enable coal mining to occur.
  4. Equipment at the underground - the Supply Superintendent and three Stratum 1 roles underneath, perform their day-to-day functions at the underground and work closely with APESMA's Group. They issue equipment (eg parts, tools, PPE), unload equipment in the area to enable access, ensure stock items are logged, and monitor waste. They interact with the underground operations daily to supply equipment to the underground operations.
  5. Inductions - there is a separate induction for roles working underground, which a number of these roles and surface operations roles have completed as their role involves performing duties underground.
  6. Safety - APESMA's Group attend monthly safety meetings with all Stratum levels across the Mine.

The work of the roles including and underneath the Health, Safety & Environment Systems Manager and Commercial Manager are integrated and integral parts of the overall operation of the Mine. The work of APESMA's Group and coal mining operations at the underground could not continue if the work of these roles were not performed.

• The Stratum 2 and 3 roles located at the underground mine engage with APESMA's Group frequently and are required to work in an integrated way. The work of APESMA's Group could not continue if the work of these roles were not performed. For example, these roles are responsible for:
  1. following up non-conformances to requirements, implementation on improvement suggestions from underground workers on equipment and supplies, sign off on return to work plans and monitoring expenditure;
  2. managing responses to Triggered Action Response Plans, which involves working together to come up with a plan to rectify issues;
  3. ensuring compliance underground. As an example, Stratum 2-3 roles may walk around with ERZ Controllers to check why certain decisions were made and what standards have been put in place;
  4. attending daily morning production meetings with Stratum 1 roles in APESMA's Group;
  5. determining operational plans with Stratum 1 roles in APESMA's Group.

• The underground operations work in an integrated way with surface operations personnel for a common goal of extracting coal at the underground mine with cooperation from all areas of the Mine, including in relation to:
  1. Production at the underground - the underground operations are performed out of the open cut residual voids. Accordingly, coordination is required between the underground and surface staff in relation to the inspection and allocation of maintenance for the underground surface work areas, enabling production to occur at the underground operations. Personnel (usually contractors) then transport the coal to the CHP using loaders and trucks.
  2. Coal quality and export - there are up to 5 units operating underground, which may result in 5 different quality areas of the Mine. The underground area communicates the coal quality to the surface operations before it is transported on the conveyor, and the surface operations then ensures the cargo is assembled correctly. Further, the Senior Geologist works in the underground mine for coal quality and strata issues as and when required.
  3. Maintenance of the surface parts of underground areas - this is organised, coordinated and managed by Stratum 2 roles in the Surface Operations. The work is performed by surface operations personnel using surface equipment. Typically, this involves watering for dust suppression on surface roads, desilting of dams before the wet season, grading of roads in rain events, sewage treatment plant management, air-conditioning maintenance, and other tasks.
  4. Control of light vehicles and machinery - all light vehicles used on site (across the underground and surface operations), the forklift and other machinery used at the underground are generally managed through Maintenance Coordinator (Stratum 1 role in Surface Operations). This involves performing annual safety checks, and general maintenance performed on the vehicles and machinery as required.
  5. Haul roads - all roads can be used by trained competent personnel from the surface and underground. Surface personnel use the haul roads for reconstruction of the underground access haul road crossing.
  6. Management - the underground and surface operations utilise the same General Manager.

The work of the roles including and underneath the Surface Operations Manager, are an integrated and integral part of the overall operation of the Mine. The work of APESMA's Group and coal mining operations at the underground could not continue if the work of these roles were not performed.

• There are similarities in roles in the underground and surface operations, including:
  1. Maintenance Coordinator (Open Cut) (Stratum 1) and Conveyor, Outbye & Infrastructure Maintenance Coordinator (Underground) (Stratum 1). This is the same job of coordinating maintenance for a common goal of extracting coal at the Mine. The only difference is the type of equipment used.
  2. Mechanical Superintendent/MEM (Underground) (Stratum 2) and Mechanical Superintendent/MEM (Open Cut) (Stratum 2) and direct reports. This is the same job of maintaining equipment for a common goal of extracting coal at the Mine. The only difference is the type of equipment being maintained."

• [125] Ensham opposed the application and submitted that the Commission cannot be satisfied of the matters in ss. 237(2)(a), (c) and (d) of the Act. In this regard, Ensham said that APESMA bears the onus of satisfying the Commission that a majority support determination should be made. In reaching the requisite state of satisfaction, the Commission must, in making factual findings, proceed by reference to rationally probative material.[35] In considering whether the statutory prerequisites have been met, Ensham said that the Commission must be positively satisfied as to the requirements in s. 237(2) given the express requirements of the Act and the consequences for all parties of the determination being sought.[36] Ensham said that the Commission here cannot be so satisfied.

• [126] In respect of determining the relevant point in time at which the Commission is to be satisfied that a majority of the relevant employees want to bargain, Ensham submits that s. 237(2)(a)(i) empowers the Commission to determine "a time" at which to test whether a majority of relevant employees want to bargain. In the present case, it is said that the appropriate time to determine majority support is not restricted to when an application is lodged but should be determined in view of the "circumstances of the particular matter".[37]

• [127] Ensham submitted that the time for assessing majority support should be the date of the hearing because if the time for testing whether there is a majority was at the time the application was made, that would hinder the discretion of the Commission and ignore the consideration of the practicalities that often arise in these circumstances.[38] In the present matter, Ensham submitted that the appropriate, logical and fair time for assessing majority support is at the date of the hearing because:

(a) It is only at this time that the Commission will have the benefit of the parties' submissions and will be able to assess the evidence.

(b) The Commission must make a decision about the "time" at which to test the majority based on all the information before it at the time of the final hearing. There is presently information before the Commission suggesting that there is currently no majority support. Accordingly, Ensham said that the Commission should not ignore that fact and select a different point in time to test whether a majority existed.

• [128] In relation to the requirement in s. 237(2)(a), Ensham submits that the Commission cannot be satisfied that a majority of employees want to bargain. To form the requisite degree of satisfaction, Ensham stated that the Commission cannot simply accept a vote at face value as evidence that a majority of employees wish to bargain for an enterprise agreement. The Commission must also consider the evidence about the overall circumstances of the vote, for example, how the vote was administered and came to be voted on by employees. In support of its submission, Ensham cited decisions of the Commission to illustrate the kind of evidence which an applicant is said to be required to lead in order to positively satisfy the Commission that a majority of employees want to bargain:

• • In Media, Entertainment and Arts Alliance[39], Ensham said that there was positive evidence before the Commission in relation to: a) how the petition had been administered by the union delegates; b) how the union delegates had approached individual employees and what was said to employees at the time that the signatures on the petition were obtained; c) the fact that the union delegates had witnessed employees signing the petition; and d) the petition having been signed by employees of their own free will.[40]

• • Similarly, in National Union of Workers v Cotton On Group Services Pty Ltd[41], Ensham submits that when considering a union petition provided by the National Union of Workers, the Commission had the benefit of positive evidence which established that: a) the union organisers had made reasonable efforts to ensure that employees were properly informed prior to completing the petitions; and b) the petitions were kept reasonably secure by the union organisers and were removed from the site.[42]

• [129] In the present case, Ensham contends that APESMA's submission that a majority has been established must be rejected because there is no evidence before the Commission as to: a) whether reasonable efforts were made to ensure that those who voted were properly informed prior to voting; b) what was actually said to people about the vote, and whether or not they were required to vote; c) what exactly was communicated to all persons invited to vote about the effect of voting "Yes" in the vote; d) whether those who voted "Yes" actually understood what was occurring; and e) whether the employees who voted "Yes" did so of their own free will.

• [130] In addition, there are a number of circumstances which are said to cast doubt on the credibility of APESMA's evidence and the integrity of the vote such that the Commission cannot be satisfied, by reliance on the vote conducted by APESMA and an email from a MEU member, that a majority of employees want to bargain for an agreement. These circumstances are:

a) On the Vero "Declaration of Results", there is a diagram entitled "Fair Work Ombudsman Fact Sheet" which said there were no "no" votes, but on the same page it is noted there were two "no" votes;

b) The Vero "Declaration of Results" refers to a "petition", but there is no information as to the question which was put to employees and over what time period the "petition" occurred;

c) The Vero "Declaration of Results" refers to 57 "eligible" voters, but it is unclear who determined there were 57 eligible voters and the basis upon which they were deemed eligible.

d) There is no evidence to establish precisely how many people in APESMA's group attended discussions with APESMA in late 2021 and early 2022. APESMA did not hold discussions with all of APESMA's Group, but only "some". Only 20 employees (approximately) were in attendance at the meeting where a motion was passed to attempt to initiate bargaining for an enterprise agreement. Accordingly, Ensham submits that the Commission cannot be satisfied that reasonable efforts were made to ensure that all voters were properly informed prior to voting.

e) While APESMA contends that voters were provided with a copy of the "Fair Work Commission's fact sheet", the fact sheet is a broad overview of enterprise bargaining generally and does not mention "majority support determination" once or the effect of voting. APESMA could have provided an excerpt of the enterprise agreement bench book regarding majority support determinations, or a copy of the majority support determinations page on the Fair Work Commission website[43];

f) A single employee/MEU member provided an email in support of bargaining on 11 August 2022, some three months after the vote was counted. Two concerns arise:

(i) there is no evidence that reasonable efforts were made to ensure he/she was properly informed prior to voting, nor any evidence that he/she accessed the fact sheet from the Fair Work Commission or any other supporting material; and

(ii) there is no plausible explanation as to why the employee did not vote in the voting process. The lengthy delay and change of heart to cast a vote three months later is clear evidence that the period of time lapsed has the potential for voters in APESMA's Group to have changed their minds.

g) The MEU obtained statements from two employees who had supposedly not voted; however, it was later identified that one of those employees had already voted. Had that employee been properly informed and understood what was occurring when he submitted his/her vote, he/she would not have also provided a separate statement.

• [131] Further, Ensham said that there will have been significant changes to the composition of APESMA's Group from the date APESMA commenced its voting process (including discussions with the workforce) and the date of the hearing, including one new employee, five role transfers and eight departures. These changes have overtaken the vote, such that the Commission cannot be satisfied that the vote as at the date of the hearing validly and accurately reflects the views of any employees who voted and the Commission has no reason to treat the cohort and a majority (if any) as stable.

• [132] As to the changes of the cohort, Ensham stated that the Commission should not allow APESMA to have the benefit of changes after the date of the application and vote (i.e., the "Yes" voter put forward by the MEU) but not allow other changes to APESMA's Group that have occurred since the vote to be taken into account (which is said to show that there is currently no majority).

• [133] Ensham stated that the time period between voting and the hearing of this matter is also extensive. The vote commenced on 4 May 2022. The last "vote" was submitted on 11 August 2022, being an email from an MEU member. All votes except the MEU member's vote will be 5 months old as at the date of the hearing. These votes are stale. There is no evidence to support the proposition that they remain a valid indication of employees' views as at the date of the hearing. Ensham also expressed the view that there are not 57 "eligible voters" in APESMA's Group as the correct number of employees in APESMA's Group is 73 and Ensham stated that it will be necessary for it to provide an updated position as at the date of the hearing.

• [134] In relation to the requirement that the Group of employees be fairly chosen pursuant to s. 237(2)(c) of the Act, Ensham submits that the Group specified by the APESMA and MEU is not geographically, organisationally or operationally distinct and that the unions have not led any evidence which could satisfy the Commission that the APESMA's Group is fairly chosen.

• [135] In this regard, Ensham said that APESMA bears the onus or responsibility of satisfying the Commission that the relevant employee group is fairly chosen. As a jurisdictional prerequisite to the Commission's power to make a determination, the "fairly chosen" requirement must be "carefully and strictly applied by the Commission before an order is made".[44] When the relevant cohort does not include all of the employees of the employer, s. 237(3A) applies and requires a determination whether the employees in the cohort argued for are organisationally, operationally and geographically distinct from other employees of the employer who are not in the cohort.

• [136] The Explanatory Memorandum to the Fair Work Bill 2009 (Cth), provides the following explanation in respect of the same concept and phrase used in section 186(3)[45]:

"777. It is intended that in assessing whether the group of employees covered by the agreement is fairly chosen, FWA might have regard to matters such as:

• the way in which the employer has chosen to organise its enterprise; and
• whether it is reasonable for the excluded employees to be covered by the agreement having regard to the nature of the work they perform and the organisational and operational relationship between them and the employees who will be covered by the agreement."

• [137] Several bases were advanced by Ensham to support its contention that APESMA's Group is arbitrary and was chosen having regard to, principally, the roles occupied by APESMA members and that APESMA's Group is not geographically, organisationally or operationally distinct.

• [138] Ensham submits that APESMA's Group is not geographically distinct. Geographical distinctiveness relates to the group of employees with respect to whom the majority support order is sought.[46] This is generally based on the relevant employees working in a single location or a geographical subset of the employer's total business.[47] Also relevant to this issue is whether the group of employees work at a different work site or work location to other employees of the employer.[48] If, upon the evidence, 'it is not possible to compare the geographical work locations of those covered by the agreement with the geographical work location(s) of employees not so covered', then it is said that a finding of a geographical distinctiveness will not be open.[49] Where a purported group works alongside a range of other employees, it is said to be unlikely that they will be considered geographically distinct.[50]

• [139] With respect to APESMA's submission that the Group is geographically distinct on the basis that underground mining operations are geographically distinct from all other operations (including surface operations and "the administration side of the business") and that APESMA's Group comprises only employees engaged in underground mining operations, this submission is rejected by Ensham. In this respect, Ensham said that employees in APESMA's Group engaged in underground mining operations are not geographically distinct from all other operations. The employees in APESMA's Group work across in a number of locations, being: 36 employees work predominately underground; 8 employees work predominately at the underground portal office; and 29 employees work at the underground main office.

• [140] It is further said that APESMA's Group works alongside a range of other employees omitted from APESMA's Group who are located at, and work alongside APESMA's Group at, the underground area, including:

a) The Site Senior Executive (SSE) (Stratum 4) who is permanently located at the underground office yet goes underground from time to time.

b) All roles including and underneath the Underground Mining Manager and Underground Maintenance Manager, who are permanently located at the underground office but go underground from time to time. They work closely with APESMA's Group roles, coordinate work, and supervise Stratum 1 and 2 roles in the underground operations.

c) All roles including and underneath the HSECT Manager, who are permanently located at the underground office and work in the underground mine alongside APESMA's Group. Given the open cut operations have concluded, the focus of these roles is predominately on the underground operation.

d) All roles including and underneath the Commercial Manager, who are permanently located at the underground office. Again, given the open cut operations have concluded, the focus of these roles is predominately on the underground operation. These roles support APESMA's Group and other Stratum 2 and 3 roles at the underground.

e) The Senior Geologist (Stratum 2) reporting to the Surface Operations Manager, who works at the underground mine for coal quality and strata issues as and when required.

• [141] Because APESMA's Group works alongside a range of other employees at the underground operation, Ensham submitted that APESMA's Group cannot be geographically distinct from those other workers employed by the Company. In addition, Ensham stated that even if the Commission was satisfied that underground mining operations are geographically distinct, APESMA's Group does not include all employees engaged in underground mining operations and does not include employees engaged in surface operations. In this regard, Ensham contends that:

(a) APESMA's Group excludes a number of roles working in the underground production function, such as Superintendents, Underground Mining Manager, Underground Maintenance Manager.

(b) The majority of roles in APESMA's Group, being all roles except ERZ Controllers, Shift Supervisors / Undermanagers and Trade Supervisors, perform service/support functions in offices on the surface, utilising computer programs to plan work processes and schedule equipment and infrastructure maintenance or in the surface workshops, supervising the maintenance and servicing of equipment. However, APESMA's Group excludes other roles which provide direct services and support to the underground production function, many of which require substantial work to be performed underground, such as:

(i) two roles reporting to the Underground Mining Manager, being the Compliance Coordinator and UG Emergency Response Coordinator;

(ii) eight roles in HSECT responsible for safety and health matters and training to enable personnel to work at the underground mine;

(iii) three roles responsible for the provision of supplies for the underground mining operation;

(iv) the Senior Geologist in the surface operations who is responsible for identifying and assessing the location, quantity and quality of coal at the underground;

(v) roles responsible for providing maintenance services to the underground, including Stratum 2 roles and Maintenance Coordinator (Stratum 1) in the surface operations.

(c) APESMA's Group includes some roles that work at both the underground and surface operations, such as the Surveyors. However, APESMA's Group excludes other roles working across the surface operations, such as:

(i) the roles in paragraph (b)(i) to (b)(v) above; and

(ii) all roles including and underneath the HSECT Manager, Commercial Manager and Surface Operations Manager.

• [142] With respect to organisational distinctiveness, Ensham submits that APESMA's Group is not organisationally distinct. Citing Aerocare Flight Support Pty Ltd T/A Aerocare Flight Support v Australian Municipal, Administrative, Clerical and Services Union & Ors[51], Ensham stated that a Full Bench of the Commission sets out a number of propositions that are relevant to the determination of whether a group of employees is organisationally distinct:

• the term "organisation" refers to the manner in which the employer has organised its enterprise in order to conduct its operations;
• the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;
• however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; and

• • most businesses have organisation structures which will allow organisationally distinct groups to be identified (citations omitted)[52]

• [143] With reference to these propositions, Ensham submits that the Commission should reject APESMA's submissions that APESMA's Group is organisationally distinct. Firstly, Ensham stated that it does not differentiate between employees by reference to Stratum. The mine's employees are categorised according to whether they are production and engineering roles covered by the Ensham EA, or staff roles employed under common law contracts.

• [144] Secondly, Ensham contended that APESMA's Group do not represent a distinct group of "staff" roles as set out in Schedule B of the Black Coal Mining Industry Award 2020 (the Award). By way of an example, Ensham said that APESMA's Group excludes roles equivalent to the Award's training officer, safety officer, paymaster, occupational hygienist, commercial officer and geologist in the Award. The Group also includes roles not listed in Schedule B, such as Control Room Operator, Production Coordinators, Maintenance and Infrastructure Coordinators.

• [145] Thirdly, Ensham submits that APESMA's Group does not have the same reporting line and the roles report to four different Stratum 2 roles (Production Superintendent, Underground Technical Services Superintendent, Mechanical Superintendent / MEM, Electrical Superintendent), and two different Stratum 3 roles (Underground Mining Manager, and Underground Maintenance Manager). Fourthly, for these reasons, it is incorrect to say all of APESMA's Group are engaged solely in the "distinct productive activity of extracting coal from its underground mine".

• [146] Fifthly, Ensham contended that the Commission must reject the proposition that all roles in APESMA's Group are associated with the "planning, production, execution and or supervision associated with underground coal mining" due to the fact that the Stratum 1 roles of Maintenance Planners, Control Room Operators, Surveyors and Ventilation Officers are excluded from the Group but do not have supervisory responsibilities. Conversely, Superintendents, Underground Mining Manager, HSECT Manager, Surface Operations Manager and SSE are excluded from APESMA's Group but have supervisory responsibilities (including under the CMSHA). APESMA's Group includes some but not all roles that work both underground and on the surface, and includes some but not all roles that provide service and support to the underground production function.

• [147] Sixthly, it is submitted that APESMA's Group is not distinct from the roles including and reporting to the HSECT Manager and Commercial Manager. The work of these roles forms an integrated and integral part of the overall operations at the mine, including in relation to compliance with the Environmental Management Plan underground; training, authorisations and competencies of underground personnel; Health and safety at the underground; equipment at the underground; and inductions. Ensham submits that it follows that the work performed by APESMA's Group in the underground operations could not continue without these roles. For example, there would be no underground coal operations if coal mine workers did not hold the requisite competencies, there was no safety management or PPE, or there was no equipment or parts available.

• [148] Seventhly, Ensham contends that APESMA's Group is also not distinct from Stratum 2 and 3 roles located at the underground area. The roles in APESMA's Group work in an integrated way with Stratum 2 and 3 and there is extensive integration and cooperation between the Stratum 1 underground and Stratum 2-3 roles at the underground. This, Ensham submitted, is evident from:

a) the overlap in responsibilities and tasks between employees in different Stratum levels;

b) some Stratum 1 roles reporting directly to Stratum 3 roles, such as the Emergency Response Coordinator and UG Compliance Coordinator;

c) Stratum 1 roles not working consistent rosters. Some work a 7/7 roster, and others work a 5/2 roster alongside Stratum 2-4 roles.

• [149] Eighthly, Ensham contends that APESMA's Group is not distinct from surface operations roles. In November 2012, Ensham integrated the open cut and underground operations and became "One Ensham" and APESMA's Group presently works in an integrated way with surface operations personnel who have been omitted from APESMA's Group. Given the cessation of open cut mining, all work is performed for a common goal of extracting coal at the underground mine with cooperation from all areas of the mine. The key areas of integration include: a) Production at the underground; b) Coal quality and export; c) Maintenance of the surface parts of underground areas; d) Control of light vehicles and machinery; e) Haul roads; and f) Management. Ensham stated that it follows that the work performed by APESMA's Group in the underground area could not continue without these roles, for example, there would be no underground coal operations if the surface operations personnel did not maintain the underground areas or light vehicles and machinery which are required for use by the underground operations

• [150] In addition, Ensham stated that there are a number of roles in APESMA's Group which are similar to roles performed at the surface operations, which undermine any proposition that underground and surface operations are organisationally distinct. These roles include:

a) Maintenance Coordinator (Open Cut) (Stratum 1) and Conveyor, Outbye & Infrastructure Maintenance Coordinator (Underground) (Stratum 1).

b) Mechanical Superintendent/MEM (Underground) (Stratum 2) and Mechanical Superintendent/MEM (Open Cut) (Stratum 2) and direct reports.

• [151] The interdependence and cohesion between the underground and surface operations roles is said to be reflected by the Ensham enterprise agreement which: covers both open cut and underground trades in production operations from levels 1 to 3 according to experience and authorisations; pays employees a bonus on the same production metric; contemplates employees transferring between the open cut and underground mining operations; and applies key terms and conditions of employment indiscriminately, regardless of whether they fall within the underground or open cut operation.

• [152] Moreover, Ensham said that the Commission should reject APESMA's proposition that there is a distinction between underground and surface operations by virtue of the Coal Mining Act. In this respect, Ensham stated that regardless of the proper interpretation of the obligations imposed under the relevant legislation, what is important in the context of the present case is how the Company actually conducts its "operation" and how it has organised its enterprise to do so.[53] Critically, Ensham said, its operation has not been organised according to a distinction between underground and surface operations.

• [153] Rather, the operations at the underground and surface come under one industrial or productive activity (i.e. its "operation") - coal mining. That involves the extraction of coal at the mine, the preparation of coal in the CHP within the mine, and the maintenance of plant and equipment at the mine, which comprises the supply chain for the production of coal. APESMA's Group form part of an integrated operation geared toward the industrial or productive activity, however, so too do many excluded roles that work in an integrated way and are all involved in the industrial activity as links in a larger production chain.

• [154] The manner in which Ensham has designed its organisational structure to facilitate a coordinated approach in its operations is said to undermine the assertion that APESMA's Group is fairly chosen. The work of the roles including and underneath the HSECT Manager, Commercial Manager and Surface Operations Manager, are integrated and integral parts of the overall operation of the mine. The work of APESMA's Group could not continue if the work of these roles was not performed.

• [155] Ensham stated that even if the Commission was satisfied there was a degree of organisational distinctiveness in respect of APESMA's Group, the level of integration as described diminishes that distinctiveness. The integration presented by Ensham is said to be of sufficient significance that it outweighs those facts that lean towards a finding of organisational distinctiveness.

• [156] Ninethly, in Ensham's view, even if the Commission was satisfied that Stratum 1 roles were an organisationally distinct group, APESMA's case must fail because APESMA has not included all roles in Stratum 1 at the mine. Enhsam said that there are 85 Stratum 1 staff roles that form part of the mine's operations and APESMA's Group omits 12 Stratum 1 roles.

• [157] Tenthly, Ensham considers the statement by APESMA that APESMA's Group are likely to pursue different conditions and entitlements than persons in offices or the surface operations, incorrect. Ensham stated that many of the roles in APESMA's Group are office-based roles and would therefore not seek special underground allowances. In any event, Ensham stated that under the Ensham EA, there are no special underground allowances for employees performing duties underground because Ensham does not consider them as distinct groups. Further, specific underground allowances such as dirt money, water money and confined space allowances do not apply to Schedule B roles under the Black Coal Mining Industry Award 2020. Rather, those allowances apply to Schedule A roles irrespective of whether they work in the open cut and underground.

• [158] As to operational distinctiveness, Ensham submits that the term "operational" refers to an industrial or productive activity.[54] The performance of a different role, task, skill or function is not sufficient to establish operational distinctiveness.[55] Operational distinctiveness refers to the industrial or productive activity carried out by an employer, and does not refer to the differences in role, skill, task or function of individuals or groups of employees.[56] Ensham submitted that a finding of operational distinctiveness will be open if the group is involved in an identified industrial or productive activity, and none of the employer's other employees are engaged in this activity.[57] For the same reasons advanced by Ensham that APESMA's Group is said not to be organisationally distinct, Ensham also submits that APESMA's Group is not operationally distinct.

• [159] In addition, Ensham submitted that operational distinctiveness is not established by APESMA because employees within APESMA's Group are engaged in the same industrial or productive activity - coal mining - as a range of other employees who have been omitted from the Group. These omitted roles are said to include:

a) All roles including and underneath the Underground Mining Manager and Underground Maintenance Manager. These roles are focussed on the production of coal at the underground directly, alongside Stratum 1 employees in APESMA's Group. The roles in APESMA's Group cannot operate without, and are dependent on, the listed roles.

b) All roles including and underneath the Surface Operations Manager. These roles are links in the larger supply chain for producing coal at the underground mine. Surface operations personnel maintain machinery and underground areas to enable underground mining to occur, and then assist with coal in preparation for export.

c) All roles including and underneath the HSECT Manager and Commercial Manager. These roles, like Maintenance Planners and Surveyors in APESMA's Group, are linked to the larger supply chain for producing coal at the underground mine.

• [160] Having regard to the above matters, Ensham submits that the Commission should conclude that APESMA's Group is an arbitrary collection of roles compiled to suit APESMA's industrial interests and its membership. This conclusion is said to find support in the correspondence between APESMA and the Company prior to the making of this Application, and the manner in which APESMA has attempted to define APESMA's Group as being distinct.

• [161] Firstly, in the correspondence of 8 June 2022 sent to Mr Mifflin, APESMA said the following in respect of APESMA's Group of employees: "These employees perform duties and responsibilities related to supervisory, production, safety, and planning roles (emphasis added)" Ensham contends that, contrary to that position, APESMA's Group does not include employees with safety, health or training responsibilities. Ensham's position is that APESMA's Group cannot be operationally distinct where it includes some service and support roles but excludes other roles which provide direct services and support to the production function. However, APESMA now asserts that APESMA's Group is "engaged in the distinct productive activity of extracting coal from its underground mine".

• [162] Secondly, Ensham said that APESMA initially contended that the Group was distinct because it occupies, in part, positions recognised under the Coal Mining Act but APESMA's Group did not include employees recognised under the Coal Mining Act and/or which have key responsibilities for supervision and planning. APESMA, however, now asserts that APESMA's Group includes "roles associated with the planning, production, execution and or supervision associated with underground coal mining".

• [163] Thirdly, APESMA initially contended that APESMA's Group was distinct because the roles are generally responsible for the supervision and planning for production of black coal mining at the mine, which is a unique and operationally distinct group of functions within the mine. However, APESMA's Group includes roles who do not hold supervisory responsibilities, as above outlined.

• [164] Fourthly, APESMA initially contended that APESMA's Group included roles which reported to the Underground Mining Manager and Underground Maintenance Manager. Conversely, APESMA's Group includes Surveyors, Mining Engineers and Ventilation Officers who report to the Underground Technical Services Superintendent. APESMA now asserts that the Group comprises roles which report to four Stratum 2 roles, who then report to the Underground Mining Manager and Underground Maintenance Manager.

• [165] Fifthly, APESMA initially defined the proposed APESMA's Group as comprising three sub-groups of roles:

• [166] In relation to the proposed Group, Ensham said that APESMA now conveniently no longer asserts that the Group has been selected based on these sub-categories, as doing so would undermine its propositions that underground and surface operations functions are separate, given the role of Open-cut overseer is also a "statutory" role under the Coal Mining Act, and would include trade qualified, production and professional roles which have been omitted from APESMA's Group, as above outlined.

• [167] Sixthly, in the letter of 15 June 2022, Ensham sought further information in relation to how APESMA determined the eligible voters in a vote which APESMA had caused to be undertaken. In its letter in response on 15 June 2022, APESMA said, relevantly: "The Unions determined the eligible voters based on the proposed scope put to the company and the members occupying those positions (emphasis added)." Ensham submitted that the Commission is therefore entitled to conclude that omitted roles were excluded because they are not occupied by APESMA members and that is not a legitimate or impartial basis for excluding the positions.

• [168] Seventhly, after it became clear that APESMA's application would fail on the evidence and upon confirmation from the Commission on 25 July 2022 that there did not appear to be a majority, the MEU subsequently contributed a member in an attempt to assist APESMA in getting the application over the line.

• [169] For all of those reasons, Ensham submitted that the Commission "must find that APESMA's Group has been selected on an arbitrary basis". Ensham further submits the Commission should also find that APESMA's Group is not geographically, organisationally or operationally distinct. Whilst that does not preclude a finding that APESMA's Group was fairly chosen, it is a "telling factor" against such a finding. In summary, Ensham submits that the Commission should find that the selection of APESMA's Group was done on an arbitrary basis and accordingly APESMA's Group was not fairly chosen.

• [170] As to the reasonableness for making a majority support determination, Ensham submits that the Commission cannot be satisfied that it would otherwise be reasonable in all the circumstances to make a majority support determination on the basis that:

• APESMA's Group is not fairly chosen
• Critically, the time elapsed since voting commenced in May 2022 and the changes in composition of APESMA's Group since May 2022 alone make it unreasonable to make a majority support determination
• The existing industrial arrangements have been in place since the Mine commenced.
• The industrial arrangement provides Ensham with significant administrative and operational flexibility and allows Ensham to treat all "staff", irrespective of whether they are Stratum 1, 2 or 3, or whether they perform work in the underground or surface operations, as a cohesive and interdependent workforce.

• [171] In its concluding remarks, Ensham noted that there are significant consequences that flow from the making of a majority support determination, including the possibility that employees of Ensham may seek to take protected industrial action and in light of these consequences, the Commission should be cautious about making any majority determination unless it has reached the requisite level of satisfaction that the prerequisites in s. 237(2) have been met. In the present case, Ensham submitted that the Commission cannot be positively satisfied on the evidence before it that the necessary prerequisites have been met and therefore the application must fail.

Whether employer that will be covered has agreed to bargain

• [172] There is no dispute in the present case that Ensham is the employer that will be covered by the proposed agreement and that Ensham has not agreed to bargain. Accordingly, the condition in s. 237(2)(b) has been met. The matters for determination are whether: a majority of the employees employed at a time determined by the Commission want to bargain (s.237(2)(a)); the group of employees who will be covered by the proposed agreement is fairly chosen (s.237(2)(c)); and it is reasonable in all of the circumstances to make the order (s.237(2)(d)).

Whether a majority of employees who will be covered want to bargain

• [173] I determine that the time for considering whether a majority of employees want to bargain, is 11 October 2022, when the substantive hearing was concluded. This is an appropriate time given variations to the numbers of employees said by the parties to be in the cohort throughout the course of these proceedings. I am also of the view that nothing advanced by Ensham warrants a different time being adopted and that the Company accepted that this should be the relevant time.

• [174] I accept that the employees in the cohort identified by APESMA number 69. This is apparent from the list tendered by Mr Miffilin which is said to comprise employees described in paragraph 1.2.2 of the application lodged by APESMA. The application lodged by APESMA makes clear that the group of employees to be covered by the proposed agreement are staff employees in the listed classifications and that those classifications are designated as Stratum 1 roles. The list provided by Mr Mifflin appended to his witness statement at the hearing, contains 73 names, including 4 superintendent roles designated as Stratum 2 roles.[58] APESMA does not seek to make an agreement to cover superintendents and has never sought that such employees are included. No explanation was provided by Ensham in relation to the inclusion of superintendents in the cohort and I do not accept that superintendents were at any time intended to be covered. It is also the case that this was made clear by APESMA in case management hearings conducted prior to the substantive hearing.

• [175] I also accept that at the time of the hearing, 41 of those employees wished to bargain and had indicated their support by either participating in an electronic ballot conducted by Vero or directly communicating support to their Union representatives. The number of employees said to be in the cohort that has been advanced by Ensham has ranged from 92[59] - 70. At all relevant times, Ensham has included four employees in the cohort who were clearly never intended to be covered by the proposed agreement. The Company refined its figure of 91 down to 71 and thereafter it has not risen above 77. Regardless of whether those employees are included, 41 constitutes a majority at all relevant stages of the process. In this regard, I accept the written and oral submissions of APESMA. I also accept that any changes in the numbers of employees between the petition and the date of hearing, do not change the outcome of the ballot and if employees were omitted by APESMA from the ballot process, there were not sufficient numbers of persons omitted to change the outcome of the ballot. In this regard, I note that there was one new employee, five role transfers and eight departures of employees identified by Mr Mifflin as being relevant to APESMA's group. However, the employment of the new employee and four of the five role transfers, occurred before 4 May 2022 when the Vero ballot occurred. Of the eight departures, four occurred prior to the Vero ballot. Accordingly, only four of the eight persons who departed could potentially have been "yes" voters which would not have changed the outcome of the ballot.

• [176] I also do not accept Ensham's submissions that the original votes obtained in the Vero process were stale by the time that the later votes were received. Mr Gallagher's evidence is that he continued to communicate with members of the union and persons interested in bargaining to try to obtain support for bargaining and there is no basis to consider that somehow persons who voted in the Vero process had changed their minds by the time that additional persons came forward to lend their support for bargaining by providing individual documents signifying their position.

• [177] Further, I accept the submissions advanced by Ms Doust for APESMA, that the fact that some employees participated in the voting process and others contacted a Union directly to indicate their support for bargaining, does not evidence any irregularity in the process of gathering support. Neither is there anything irregular about Unions identifying members who have not participated in a voting process and following those members up to encourage them to do so. As Ms Doust put the matter in closing submissions:

"The suggestion that APESMA had to maintain some sort of process where it was hands‑off in respect of the vote, where it couldn't know who had voted along the way or anything of that nature is entirely unrealistic when one considers the role of a registered organisation in this process, which is as the bargaining agent for employees.

The union isn't some sort of separate body like the Electoral Commission. It is absolutely entitled to be canvassing support, drumming up support, for enterprise bargaining.

Newsflash: this is what unions do. So there's nothing at all irregular in the idea of getting around to your members and saying, 'Come on, support this thing. Give us an expression of your support, because this is what we need to do to bargain. If we want to get past that first hurdle, here's what we need to do. We need to dot the I's and cross the T's through this process.' Nothing at all sinister about that process taking place."[60]

• [178] I agree with that submission. Employees who have joined Unions provide their contact details to the Union and there is nothing inappropriate about Unions initiating contact with members including for the purpose of encouraging or persuading them to participate in a process to record their desire to negotiate an enterprise agreement. APESMA had engaged an organisation to conduct an electronic ballot and it is entirely within the realms of the usual activities of a Union to contact members who had not voted to request that they do so. I reject the contention that by contacting employees who had not voted in the ballot to encourage them to vote, Mr Gallagher breached their confidence or otherwise engaged in inappropriate conduct with respect to the ballot.

• [179] The use of a petition signed by employees is an established method of demonstrating support for bargaining and subject to considerations of how the petition is administered, is an efficient and effective mechanism to demonstrate majority support. There is no assumption that a petition that is physically signed by employees is a preferable method for establishing support for bargaining. In the present case, the petition or voting process used by APESMA was electronic. In circumstances outlined in Mr Gallagher's evidence, where employees were working a range of rosters covering 24 hours of the day, on a fly-in-fly-out basis and were located at various areas of an underground mine, it was entirely reasonable for the ballot to have been conducted electronically. It is also the case that employees working underground may take their crib breaks in a range of areas so that accessing those employees to hold discussions would have been difficult, if not impossible for APESMA. Further, I accept that the COVID-19 pandemic and the caution that attaches to gathering large groups of people in the same room at the same time was also a good reason for an electronic process to be adopted. Finally, I accept that employees within the Group were generally computer literate and conducting an online ballot allowed them to vote at a time and place of their choosing. The skills and qualifications of the cohort of employees is a matter to which I will return.

• [180] I am satisfied that the process of administering the vote described by Mr Gallagher was entirely regular and appropriate. Employees had an opportunity to verify their own data before voting and there is not a scintilla of evidence that any employee objected to being contacted by the Union in relation to the petition. Where a petition is relied on by a Union to establish support, it is the case that the Commission requires evidence about how the petition was administered. This may include statements about matters identified in the cases cited by Ensham including how the petition was administered, how employees were approached to sign the petition and what they were told and how the petitions were kept secure and who had custody of the petition documents prior to them being provided to the Commission.

• [181] I do not accept that there is no evidence demonstrating the matters set out in Ensham's submission. Mr Gallagher gave comprehensive and detailed evidence about the Vero process and there is no basis upon which I could find that there is any question as to the veracity of the ballot and the vote. In relation to the assertions that the Commission could not be satisfied that employees were "properly informed" prior to voting, I can only wonder at what additional information employees needed to be provided with for Ensham to accept that they were properly informed about what they were being requested to agree with. The statement that employees endorsed by signing the petition is clear - it asks employees to indicate that they are employed in the positions listed and that they wish to bargain for an enterprise agreement under the Fair Work Act. The petition also states that by signing a majority support determination, employees understand that the document may be provided to the Commission on a confidential basis, to support a majority support application. Employees were also provided with the Fair Work Ombudsman's information statement about enterprise bargaining. The fact that employees did not receive specific information about the details of a majority support application, says nothing about their desire to bargain and I do not accept that a Union is required to provide information about how the provisions of the Act with respect to majority support applications operate, to found a valid petition seeking to obtain majority support.

• [182] Mr Gallagher also gave evidence of discussions with various members of the relevant cohort prior to the Vero process including a zoom meeting with some 20 employees within that group. The fact that those discussions were not with the entire cohort says nothing about the validity of the Vero process. In effect, the zoom meeting is no different from any meeting conducted by a Union exercising a right of entry to discuss bargaining with employees. In circumstances where such meetings are conducted during non-working time, they are conducted in crib rooms or other similar areas and there is no guarantee that all of the relevant cohort will attend a meeting or that persons in areas while meetings are being conducted, are part of the Cohort. What is determinative is that there is a clear indication that employees want to bargain.

• [183] The essential information for employees to exercise that choice is that the Union has sought to initiate bargaining and seeks to establish that a majority of employees within a specified group want to bargain and that they should indicate their support by whatever method the Union has adopted, which may be a written or electronic petition. It may be that a Union seeking to garner employee support by way of a petition, does not need to make a majority support application, because the employer simply accepts the petition and agrees to bargain. The employees in the present case are highly qualified and occupy positions with significant obligations in relation to workplace health and safety and related matters. Coal Mine Workers generally are required to have such knowledge and understanding of workplace health and safety matters, much less employees occupying positions within the cohort. I accept that the terms used to describe the positions the relevant employees occupy are well understood and the fact that they may not appear verbatim on the Company's organisational chart does not signify any lack of understanding about the coverage of the proposed agreement. As I have already indicated, any lack of clarity on this matter is not determinative of whether employees want to bargain. There is nothing to suggest that there are classifications or positions at the Mine, the exclusion or inclusion of which would change the outcome of the petition. As Ms Doust submitted:

"These are employees who are highly qualified in the main, occupying positions where they have to be extremely astute about their roles, their obligations, compliance with legislative standards and their relationship within the safety structure of the mine. So the notion that somehow these employees would be misled because the terms that they use themselves to describes themselves, as Mr Gallagher gave evidence - using terms like 'trade supervisors' - the fact that one of these workers is going to somehow look at the term 'trade supervisor' and have a complete cerebral breakdown and be unable to comprehend what's going on when their representative who has been back and forth communicating with them about this process leading up to it, that is just entirely fantasy, as is the suggestion that Mr Gallagher communicating with employees to encourage them to make sure that they voted constituted pressure."

• [184] I do not accept the submission advanced by Ensham at the hearing, that the question in the Vero process was misleading, because it did not contain additional information set out in APESMA's Form F30 Application. The additional information in the Form F30 Application was simply to clarify for the Commission (which would be determining the application) that the group is organisationally and operationally distinct because it is designated as ERPL Stratum 1 reporting to the Underground Mining Manager or the Underground Maintenance Manager and the Group occupies in part, positions recognised under the Coal Mining Safety and Health Act generally responsible for the supervision and planning for production of black coal mining at the Ensham Mine. There was no need to include the "qualifier" that was included in the description of the group in the Form F30 Application, given that the roles that were included in the group were specified and there is no basis for finding that there was any confusion on the part of employees about what they were voting for.

• [185] There is also no requirement that employees who are asked to indicate their support for bargaining, be informed of the precise metes and bounds of the cohort they will be part of. It is well established that the scope of an enterprise agreement can itself be the subject of bargaining and may change through the course of negotiations. The fact that the description of a cohort is not precise is not determinative of whether employees want to bargain. The desire of employees to bargain is the relevant consideration, and absent some evidence of antipathy on the part of members of a group about other members, the presumption will be that the primary concern of employees is to engage in bargaining rather than the group proposed to be covered by an agreement.

• [186] If an employer intends to advance an argument inferring that pressure was placed on employees in relation to a petition or other process to gauge support for bargaining or that there was a lack of understanding about what employees were agreeing to, more is required than simply a bare assertion. In the present case there is no evidence upon which I could reach a conclusion that there was anything other than a show of support from a majority of employees that they wished to bargain.

• [187] In relation to multiple processes being used to evidence consent, there is no requirement in the Act as to how the Commission may form satisfaction that a majority of employees want to bargain and nor is there a requirement that agreement of employees to bargaining is evidenced by a common process or method. What is relevant, is that at the time the Commission determines, the Commission is satisfied that a majority of employees in the relevant cohort want to bargain. If evidence can be placed before the Commission about changes in the cohort itself, and that evidence can be accepted at the time determined by the Commission, then evidence about persons who are within the cohort and did not previously vote, can also be accepted. The fact that some employees indicated their agreement to bargain by way of an electronic ballot while others did so by directly communicating with a Union official, is not an indication of lack of genuineness in the desire to bargain. Nor is it an indication that the process of obtaining support of employees was flawed.

• [188] Employees who signed documents after the petition was finalised which were tendered by APESMA, declared that:

• They gave authority to APESMA to provide the document they signed to the Commission on a confidential basis to indicate support for collectively bargaining with Ensham;
• They were employed by Ensham at the time of signing and were employed between 4 and 7 May when the Vero petition was circulated; and
• Had not endorsed that petition at the time; but

• • Were supportive, and continued to be supportive, of bargaining with Ensham.[61]

• [189] I have verified that these employees did not previously vote in the Vero process. Mr Brunker also tendered statements in similar terms from two members. Despite making a declaration to the contrary, I ascertained that one of those persons had in fact voted in the Vero process while the other had not. I accept Mr Brunker's evidence that he was not aware of this when he tendered the statements. I do not accept that one employee being mistaken about having participated in the Vero ballot, is a basis to doubt the validity of that ballot process. Further, the changes in numbers identified in written and oral submissions for Ensham are not capable of altering the outcome of the ballot. Further, the fact that the ballot may have closed early is not a basis to doubt the outcome given that at the point the ballot closed there was a majority and the views of employees who did not vote in the ballot continued to be sought by the Union and were provided to the Commission. Contrary to the submission of Mr Humphreys for Ensham, the Vero ballot was not a general election for the Australian Parliament and there is no basis to find that any employee who did not vote, was disenfranchised. [62]

• [190] For these reasons, I am satisfied and find that the group of employees proposed by APESMA, who were employed at 11 October 2022, comprised 69 persons. I am also satisfied that this constitutes a majority of persons who wish to bargain. For the purpose of this conclusion, I accept that the Vero ballot process, together with the additional expressions of support for bargaining tendered by Mr Gallagher and Mr Brunker are an appropriate method for determining majority support. Accordingly, the requirement in s. 237(a) has been met.

Whether group proposed by APESMA is fairly chosen

• [191] Section 237(2)(c) requires the Commission to be satisfied that a group of employees to be covered by a proposed agreement is fairly chosen. In deciding this matter, the Commission is required by s. 237(3A) to consider whether the proposed agreement will cover all employees of the employer covered by the agreement, and if not, in deciding whether the group is fairly chosen, take into account whether the group is organisationally, operationally or geographically distinct. It is not necessary that the group be distinct in a manner described in s. 237(3A) but rather that these matters are taken into account in deciding whether the group is fairly chosen.

• [192] As a Full Bench of the Commission said in QGC Pty Ltd v The Australian Workers' Union[63] (QGC):

[42] For the Commission to reach a state of satisfaction necessary to make a majority support determination, it must be satisfied that the group was fairly chosen and in considering whether the group was fairly chosen, it must take into account, by virtue of s. 237(3A), whether the group is geographically, operationally or organisationally distinct. Distinctiveness is not absolute and can be a matter of degree. Distinctiveness on one of those bases is a factor telling in favour of a finding that the group is fairly chosen. Conversely if the group of employees is not geographically, operationally or organisationally distinct, then that is a factor telling against a finding that the group is fairly chosen. Whether or not a group is organisationally, operationally or geographically distinct is not decisive but rather is a matter to be given due weight having regard to all of the other circumstances.

[43] We accept the submission for the Appellant that it follows that where the group is not geographically, operationally or organisationally distinct, it is necessary to identify what, if any, factors outweigh the absence of such characteristics and to give significant weight to the lack of distinctiveness in deciding whether the group was fairly chosen.

• [193] In relation to geographical distinctiveness, the Full Bench in QGC considered that distinctiveness relates to the group of employees with respect to whom the determination is sought and that geographical distinctiveness includes employees working in a single location or in a geographical subset of the total business. Here, it might be said that the Ensham Mine is a geographically distinct location and that all employees in the group work at the same geographical location. Reference was also made to the evidence in relation to "One Ensham" in support of the proposition that the group of employees is geographically distinct. Of itself, I do not accept that the fact that an otherwise disparate group of employees work at the same geographic location, with other employees who are not in the group, is a sufficient basis to find that those employees are fairly chosen based on geographical distinctiveness.

• [194] In relation to organisational and operational distinctiveness, reference was made to organisational charts tendered by APESMA and Ensham. It was submitted for APESMA that the chart, which was produced by Ensham, indicates that the cohort APESMA seeks to bargain in respect of are distinct organisationally by virtue of occupying a stratum 1 role and being involved either under the Underground Mining Manager or the Underground Maintenance Manager in the task of mining coal. In this regard, employees in the cohort identified by APESMA report to one of four superintendents who in turn report to one of two managers and are mostly engaged directly in the work of production and mining of black coal. I note that to demonstrate its point with respect to the cohort, APESMA's diagram showed that the cohort could be easily contained within a single box, while Ensham's diagram endeavouring to show relationships between the APESMA group and other excluded groups required the drawing of numerous lines which were additional to the diagram. Reference was also made in APESMA's submissions to the correspondence sent by Mr Gallagher to Mr Mifflin on 8 June 2022 which stated that:

"Both APESMA and the MEU are putting forward a scope to cover permanent production staff employees at the Ensham Underground Mine. This would include distinct employees within statutory positions recognised under the Coal Mining Health & Safety Act (sic), trade qualified staff, engineers and production support staff related to the production and mining of black coal. These employees perform duties and responsibilities related to supervisory, production, safety and planning roles.

This would not include administrative, financial, or human resource staff, whose employment is related [to] servicing the internal processes of the site and not directly related to commodity output."

• [195] The letter went on to set out the positions subject of the present application. I do not accept Mr Mifflin's evidence that the group are not organisationally or operationally distinct. The fact that the group works at a number of locations is not determinative. I accept the submissions of APESMA that persons who are excluded from the group are not directly engaged in the production and mining of coal. Roles listed in Mr Mifflin's statement were said to include: employees who work at the same location and alongside other roles at the underground office; roles providing direct services and support to the underground production function; roles responsible for the purchase and provision of supplies for the underground mining operation; a senior geologist responsible for identifying and assessing the location, quantity and quality of coal; and roles responsible for providing maintenance services to the underground. Mr Mifflin also said that persons in these roles also perform work across the surface operations.

• [196] While I accept Mr Mifflin's evidence that the roles in the APESMA cohort report to, and integrate with, other employees who are excluded and that employees who are not included perform important roles in supporting and enabling production and mining employees, I am of the view that the roles are not directly related to the production and mining of coal as are the roles within the group nominated by APESMA.

• [197] The fact that employees in the roles listed by Mr Mifflin are required to go underground from time to time, does not change the nature of the roles. The persons in those roles continue to support and enable mining operations, rather than undertaking production and mining, regardless of whether they are in offices at the surface or underground. Neither does the fact that the focus of the roles is on the underground operations. That the focus of the roles is on the underground operations is because the open cut operations have been wound back. The roles are not directly associated with production and mining of coal regardless of how the production and mining operations are conducted.

• [198] One only needs to consider the titles of the roles outlined in Mr Mifflin's statement to determine that those employees (including Mr Mifflin himself) are generally distinct from employees performing production and mining roles. I do not doubt that if APESMA had sought to make an agreement covering Mr Mifflin and/or the superintendents and managers referred to in Mr Mifflin's statement, that Ensham would have objected. I am also of the view that while the roles identified in Mr Mifflin's statement provide direct service and support to underground production, they are not engaged directly in that area. As such, they are operationally distinct. Neither is the fact that some of the roles within the cohort nominated by APESMA have supervisory responsibilities and others do not, a basis for finding that the group is not fairly chosen.

• [199] I have considered Ensham's position about the organisation of its workforce and that it seeks to operate as "One Ensham". While employees have been given a shirt bearing that term, the fact remains that Ensham has made an enterprise agreement with some employees which does not include the cohort with respect to whom APESMA seeks to bargain. While Ensham may wish to regulate the terms and conditions of employees in the APESMA cohort by a combination of the Black Coal Mining Industry Award and common law employment contracts, that is not a basis for finding about whether the group is fairly chosen. I do not accept the submission that it is industrially unwise or wrong to make a majority support determination in relation to staff that is in contradiction to the long-standing industrial structure at the Mine. The fact that a Union wishes to pursue bargaining for a group of employees who have not previously been covered by an enterprise agreement and who wish to have the protection of an agreement, does not provide a basis to refuse to exercise the discretion in favour of the making of a majority support determination.

• [200] The fact that Ensham nominates a group of employees who are not included in APESMA's cohort and contends that they perform the same or similar duties, does not result in the cohort nominated by APESMA not being fairly chosen. Further, that a case could be made for including some or all the employees nominated by Mr Mifflin in the same agreement, and that the resulting group would be fairly chosen, is not a basis for finding that the APESMA cohort is not fairly chosen. The Commission is not required to identify alternative groups that could also be said to be fairly chosen or groups that would be more fairly chosen. If Ensham contends that the group nominated by APESMA should include roles that are not currently included, it can commence bargaining and attempt to negotiate the scope of the agreement or make a scope application. Finally, the fact that the group is consistent with APESMA's membership is not determinative of whether it is fairly chosen and does not render the composition of the group arbitrary.

• [201] Accordingly, I am satisfied and find that the group of employees nominated by APESMA is operationally distinct insofar as it performs work directly associated with the mining and production of coal. This finding supports a finding that the group was fairly chosen and absent any compelling basis for a finding to the contrary, I am satisfied and find that the group of employees is fairly chosen.

Whether reasonable in the circumstances to make declaration

• [202] Based on the matters set out above, I am satisfied of the matters in s. 237 of the Act and I am therefore required to make a majority support determination. Accordingly, an order to that effect was issued on 23 January 2022.[64]

L Doust of Counsel instructed by AEN Legal for the Association of Professional Engineers, Scientists and Managers Australia.

A. Nash for the Construction, Forest, Maritime, Mining and Energy Union.

I. Humphreys of Ashurst for Ensham Resources Pty Ltd.

[1] Exhibit APESMA 1 at Annexures ZG1 and ZG2.

[14] Roy Morgan Research Ltd v K Baker [2014] FWCFB 1175 at [11]; Goffet v Recruitment National Pty Ltd [2009] AIRCFB 626 at [47].

[15] [2020] FWCFB 638.

[17] [2021] FWCFB 4414.

[18] [2016] FWCFB 8372.

[19] [2012] FWAFB 2206.

[20] [2017] FWCFB 1165.

[22] [2021] FWCFB 1038.

[34] Exhibit APESMA 6 at pp 612-614 of the Court Book.

[35] INPEX Australia Pty Ltd v The Australian Workers' Union [2021] FWCFB 1038.

[36] The Australian Workers' Union v The Austral Brick Co Pty Ltd t/as Austral Bricks [2010] FWA 5819, [24].

[37] Media, Entertainment and Arts Alliance [2013] FWC 3231, [46]. See also The Broken Hill Town Employees' Union [2011] FWA 4331, where Commissioner Raffaelli noted that he was not prepared to restrict "at a time" to a particular day or to a particular time of day and Automotive, Food, Metals, Engineering, Printing and Kindred Industries known at the Australian Manufacturing Workers' Union v Christie Tea Pty Ltd [2011] FWA 6956 where Commissioner Hampton noted, at [25] that the appropriate reference point was the time of the decision.

[38] Media, Entertainment and Arts Alliance [2013] FWC 3231, [47]-[48].

[39] [2014] FWC 8898.

[41] [2014] FWC 6601.

[43] See, https://www.fwc.gov.au/majority-support-determinations

[44] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v South32 Worsley Alumina Pty Ltd v South32 Worsley Alumina Pty Ltd [2021] FWC 3784 at [139] (South32).

[45] Note: The drafting of section 183(3) as it appeared in the original Bill was amended by the Parliament prior to the Act being made. Ensham submits that the relevant matters referred to in paragraph 777 of the Explanatory Memorandum, however, remained effectively the same.

[46] QGC v The Australian Workers' Union [2017] FWCFB 1165 at [42] [47] (QGC); United Voice v MSS Security Pty Ltd [2019] FWC 6994 at [64] (MSS).

[48] APESMA v Mt Arthur Coal Pty Ltd [2018] FWC 2008, [26].

[49] INPEX Australia Pty Ltd v The Australian Workers' Union [2021] FWCFB 1038 (Inpex No. 2), [34].

[51] [2017] FWCFB 5826.

[53] Application by Association of Professional Engineers, Scientists and Managers, Australia, The (215V) [2018] FWC 2008, [46].

[54] AWU v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476, [13].

[58] Exhibit Ensham 3 - Annexure AM-12.

[59] Exhibit Ensham 3 - Annexure AM-11 letter to Mr Gallager dated 20 June 2022.

[63] [2017] FWCFB 1165.

[64] PR749903.

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