Fair Work Act 2009

s.236 - Majority support determination

Yarrabee Coal Company Pty Ltd Trading AS Yarrabee

Application for majority support determination - majority reached - determination made

• [1] This decision relates to an application made by the Mining and Energy Union (MEU) under s.236 of the Fair Work Act 2009 (Cth) for a majority support determination to undertake bargaining for an agreement to cover employees of Yarrabee Coal Company Pty Ltd Trading as Yarrabee (Yarrabee / the Respondent) at the Yarrabee coal mine engaged in the classifications under Schedule A of the Black Coal Mining Industry Award 2020.

• [2] The MEU seeks to bargain on behalf of members for a new enterprise agreement. Yarrabee did not agree to bargain with employees for a new enterprise agreement and advised the MEU as follows:

"...We believe our current employment arrangements are working well and are appropriately suited to our business. Our team is the heart of Yarrabee and we're focused on continuing to create a safe and rewarding workplace together.

Our focus remains on listening, engaging and evolving together, without the constraints of a one-size-fits-all framework."

• [3] Sections 236 and 237 of the Act relates to applications for majority support determinations:

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

(1A) Despite subsection (1), a bargaining representative may not apply to the FWC for a determination if a supported bargaining authorisation that specifies the employee is in operation.

Note: While a supported bargaining authorisation that specifies an employee is in operation, an employer cannot bargain with that employee for any kind of agreement other than a supported bargaining agreement (see subsection 172(7)).

(1B) Despite subsection (1), a bargaining representative of an employee may not apply to the FWC for a determination if:

(a) a single interest employer agreement or a supported bargaining agreement applies to the employee; and

(b) the agreement has not passed its nominal expiry date.

(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 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) 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."

• [4] On 7 May 2025 the MEU filed the application after collecting petitions from employees. On 10 May 2025 I issued directions that the MEU file an unreacted copy of the petitions in the Commission by 12 May 2025, and serve the Respondent with a redacted copy. On the same date the Respondent was to file with the Commission a list of employees at the Yarabee Coal Mine engaged in the classifications under Schedule A of the Black Coal Mine Industry Award 2020. The parties filed and served the material as directed.

• [5] On Tuesday afternoon 13 May 2025, I directed that email correspondence be forwarded to the parties as follows:

"In advance of the directions hearing tentatively listed for 9:00am AEST Thursday 15 May 2025, the Commissioner has compared the list of employee names provided by the employer to the names of employees who have signed the petitions provided by the MEU.

He advises that there are 219 signatures of employees matching the 362 names on the employer list, which would constitute a majority.

The Commissioner requests that the Respondent advise whether they still wish to be heard on, or object to the application."

• [6] On Thursday morning 15 May 2025, the Respondent sent email correspondence to my Chambers advising that they would not be opposing the application. The directions hearing listed for 9:00am on the morning of 15 May 2025 was cancelled.

• [7] I have considered each of the matters I am required to take into account before making a majority support determination. I am satisfied the application has been made, and I am satisfied the majority of the employees who are currently employed by the employer, and who will be covered by the agreement, want to bargain.

• [8] I am satisfied that the Respondent has not yet agreed to bargain.

• [9] I am satisfied, taking into account whether the group is geographically, operationally or organisationally distinct, that the group of employees who will be covered by the agreement was fairly chosen.

• [10] As I am satisfied that a majority of the relevant and current employees who will be covered by the proposed agreement wish to bargain for an enterprise agreement, and that each of ss.237(2)(b), (c) and (d) have been met, pursuant to s.237(1) I must make a majority support determination. I therefore make the determination which will operate from today being 15 May

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