s.236 - Majority support determination

The Association of Professional Engineers, Scientists and Managers, Australia

Application for majority support determination - majority reached - determination made

[1] This decision relates to an application made by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) under s.236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination to undertake bargaining for an agreement to cover employees of Bma Alliance Coal Operations Pty Ltd (the Respondent) performing duties in OCO and OCO Coordinator roles at the Caval Ridge Mine.

[2] The APESMA seeks to bargain on behalf of members for a new enterprise agreement.

The Respondent did not agree to bargain with employees for a new enterprise agreement and advised the APESMA as follows:

"I confirm receipt of your email dated 29 September 2025, in which you request to commence bargaining for an enterprise agreement covering Open Cut Overseers (OCOs) at Caval Ridge Mine (CVM)...

• The scope of the employees who will be covered by the proposed agreement is clear and fairly chosen; and
• A majority of those employees want to bargain.

1. Clarification of the scope of employees who will be covered by the proposed agreement, including why APESMA considers this group of employees to have been fairly chosen under section 186(3) of the Fair Work Act 2009; and
2. Evidence that a majority of those employees want to bargain e.g. results of any petition or survey completed by employees, including their name, role, and indication of support or otherwise to bargain.

Any information provided will be treated confidentially and used solely for the purpose of assessing support for bargaining.

Given the above concerns, BMACO is not in a position to agree to commence bargaining at this time. We remain open to further discussions once the requested information has been provided."

[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 11 February 2026 the APESMA filed the application after collecting petitions from employees. On 18 February 2026 I issued directions that the APESMA file an unreacted copy of the petitions in the Commission by 20 February 2026 and serve the Respondent with a redacted copy. On the same date the Respondent was to file with the Commission a list of employees performing duties in OCO and OCO Coordinator roles at the Caval Ridge Mine. The parties filed and served the material as directed.

[5] On 20 February 2026, 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 2 March 2026 was cancelled.

[6] On 23 February 2026, I directed that email correspondence be forwarded to the parties as follows:

"The Commissioner has inspected the material provided to chambers in accordance with his earlier directions in relation to matter B2026/88. The Commissioner advises that it is clear from the information a majority of the cohort support the commencement of bargaining for an enterprise agreement. Further the Commissioner notes the advice from the Respondent that in these circumstances the Respondent would not oppose the Majority Support Determination sought by the Applicant.

The Commissioner advises that based on the above he intends to issue the Majority Support Determination later today."

[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 23 February 2026.

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