[1] On 12 July 2010 the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) applied for a majority support determination pursuant to s.236 of the Fair Work Act (the Act).

[2] It is appropriate to set out the provisions of ss.236 and 237 in full:

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

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

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

237 When FWA must make a majority support determination

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

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

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

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

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

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

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

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

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

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

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

[3] The employer to be covered by the agreement is Endeavour Coal Pty Limited, BHP Billiton Administration Centre, Old Port Road, Port Kembla NSW 2505 (the Employer) in respect of its operations at West Cliff Colliery. The employees proposed to be covered are those employed at West Cliff Colliery in a supervisory, professional, administrative, clerical or technical capacity up to and including the level of responsibility of under manager in charge other than deputies (the Relevant Employees).

[4] The application was opposed by the Employer. The matter was heard in Sydney on 7 September 2010. Mr Taylor and Mr Passfield appeared for APESMA and Mr Woodbury and Mr Ross appeared for the Employer. Leave to appear was granted.

[5] The matter had been originally allocated to Vice President Lawler and it was allocated to me when it became clear that the matter would require a hearing given that Vice President Lawler was taking leave and he did not wish to inconvenience the parties by delaying the matter.

[6] Vice President Lawler had been provided with a confidential petition signed by APESMA members. It appeared that a majority of the Relevant Employees had signed this petition in support of negotiations for an enterprise agreement. APESMA said that there were 58 Relevant Employees of whom 37 had signed the petition. Vice President Lawler ordered that the petition be a confidential exhibit. The Employer and APESMA agreed on the content of a letter to be emailed to the relevant employees by the company under the signature of Vice President Lawler. The letter of Vice President Lawler advised employees of the position of APESMA and of the Employer and the effect of an enterprise agreement and then concluded with the following:

"if you have signed the petition but, having regard to the dot points above, you in fact do not want to bargain for an enterprise agreement covering staff employees, please send an email to this effect to my associate at lisa.stewart@fwa.gov.au by no later than 9am on Monday 26 July 2010. On the other hand, if you did not sign the petition and now wish to indicate that you want to bargain for an enterprise agreement you may do so by sending an email to that effect to the same address by the time specified."

[7] The outcome of this process was as follows:

• The union petition had 37 names on it but three of those names were not on the employer's list of Relevant Employees.

• The Employer's list of relevant employees had 53 names on it.

• The Vice President received 5 emails - 3 from employees who wanted to opt out but who were not on the union petition, 1 from an employee who was on the union petition but not on the employer's Relevant Employee list and 1 from an employee who was on the union petition and also on the Employer list. The net result of these emails was to reduce the Union Petition to 33 names who were also on the Relevant Employee list of the employer.

• The Vice President also received a petition of 22 employees whose names were on both the Union Petition and also on the Employer list of Relevant Employees.

[8] The second petition of 22 employees read as follows:

"Please write your name and sign in the below spaces if you wish to opt out your interest to bargain for an enterprise agreement for West Cliff Mine Staff as per the letter date 19 July 2009,l and instead progress direct discussions with Company regarding your employment terms and conditions".

[9] Having carefully considered the submissions of both the Employer and APESMA at the hearing on 7 September 2010 I made the following decision on transcript:

"I have considered the submissions made by the parties in this matter. Application was made on 12 July 2010 and was supported by a petition signed by a majority of the affected employees. In the absence of any other evidence to the contrary, this would probably have been a sufficient basis to make the order sought. The conditions in section 237(2)(b) of the Act are met, in that the employer has clearly not agreed to bargain or initiated bargaining. The conditions in section 237(2)(c) of the Act have been met, in that the group is fairly chosen. The group is clearly operationally and organisationally distinct and I am satisfied is fairly chosen.

If there was satisfaction that there was majority support, then there is no reason to believe section 237(2)(d) is not met; that is, that it would be reasonable in all of the circumstances to make the order. Submissions were made by the employer in this matter that raised some doubts about whether the petition provided sufficient basis for indication of majority support and in response to that, Lawler VP, with the support of the applicant, wrote to all affected employees and in that letter he invited the affected employees, and I quote:

If you have signed the petition but, having regard to the dot points above, you in fact do not want to bargain for an enterprise agreement covering staff employees, please send an email to this effect to my associate at -

- by no later than 9 am on 26 July 2010. On the other hand, if you did not sign the petition and now wish to indicate that you want to bargain for an enterprise agreement, you may do so by sending an email to that effect to the same address by the time specified.

In response to that, there were a number of emails received and, in particular, there was a petition signed by some 22 employees, whose names were on the original petition presented by the applicant in this matter, and that petition has the following words at its head, and I quote:

Please write your name and sign in the below spaces if you wish to opt out your interest to bargain for an enterprise agreement for Westcliffe Mine staff, as per the letter date 19 July 2009, and instead progress direct discussions with company regarding your employment terms and conditions.

I do not regard this as a simple statement in the same terms as that sought by Lawler VP. The circumstances of this whole matter suggest that the employer is advocating individual bargaining and the union is advocating collective bargaining. The Act clearly encourages and facilitates collective bargaining. There are some doubts from the words of the alternative petition that the employees may, in fact, be seeking collective bargaining but not necessarily with APESMA. I, of course, am not in any way determining that matter but simply suggesting that, given the form of the petition, there are some doubts.

A majority support determination is still appropriate, even if the agreement sought in the end does not end up being with the union. I have particular regards for the objects of the Act and, in particular, objects 3C, 3E and 3F of the legislation, and also section 171, which is the objects of the enterprise bargaining part of the legislation, part 2-4, and section 171, clearly directed at facilitating good faith bargaining and the making of enterprise agreements.

In those circumstances, I am satisfied that a forensic examination of the validity of the various petitions and the circumstances surrounding them would be costly of both time and effort and would be unlikely to produce a definitive conclusion. The method that was used by Lawler VP in seeking an email response from employees is one possible method which can be used in these circumstances. It is a method which has worked in at least one other circumstance and may well work in future circumstances, but it is not the only possible method to be utilised by the Tribunal to satisfy itself as to whether a majority support determination should be issued.

Therefore, given the objects of the legislation, I think it is appropriate in the circumstances of this matter that the Tribunal should take further steps to identify whether or not a majority support determination should be made on the basis of the application. Therefore, I intend to make an order that the Australian Electoral Commission should conduct a ballot of the affected employees. Having ascertained the outcome of the AEC ballot, in the event that the ballot shows majority support, I would of course be inclined to make the order sought. However, I would hear submissions of the parties, if that is necessary, prior to making such an order.

Conversely, in the event that the ballot showed that there was not majority support, I would be inclined to dismiss the application but, again, if the parties wished to make submissions about that matter prior to making a final decision, I would be open to consider those submissions. I would intend to make an order that the AEC ballot be held in two weeks' time and that the question on the ballot would be:

Do you want to bargain for an enterprise agreement with your employer, yes or no?"

[10] Following this after hearing submissions from the parties as to the appropriate details I issued an order (PR501396). That Order set out the conditions for the ballot and provided an opportunity for the Union to conduct a paid meeting at the opening of the ballot.

[11] On 23 September 2010 the Returning Officer from the Australian Electoral Commission declared the outcome of the ballot as follows:

[12] I advised the parties on the 7 September that I will issue a decision within 48 hours of the declaration of the ballot and that my decision would be to grant the application for a majority support order in the event that there was a majority vote in favour and to refuse the application in the event that there was not. However, I advised that I would relist the matter to hear further submissions in the event that one of the parties requested this within 48 hours of the declaration of the ballot. I received no request.

[13] I am not satisfied that a majority of the Relevant Employees wish to bargain for an enterprise agreement. The application for a majority support order in this case is refused.

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