s.236 - Majority support determination

The Association of Professional Engineers, Scientists and Managers, Australia

[1] This decision relates to an application made by the Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia) 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 engaged as Staff and Supervisors reporting to the position of Manager, employed by Illawarra Coal Holdings Pty Ltd Trading as GM3 at and from the Dendrobium Coal Preparation Plant (the Group).

[2] On 23 September 2025, Professionals Australia wrote to the Illawarra Coal Holdings Pty Ltd Trading as GM3 (Respondent) seeking to commence negotiations for a new enterprise agreement. In a response sent on 3 October 2025, the Respondent advised that it had met with the employees within the Group, and was not satisfied that a majority of the Group wished to bargain.

[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

(ii) who will be covered by the agreement; want to bargain; and

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

(c) 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] During the period 16 to 23 September 2025, Professionals Australia collected emails and a petition from members within the Group which it relied upon to support its contention that a majority of employees who will be covered by a proposed agreement wished to bargain.

[5] On 6 November 2025, Professionals Australia filed an application for a majority support determination which was allocated to me to determine. This was supported by a statement of Mr Thomas Teal, an employee of Professionals Australia, and various documents evidencing communications between the parties regarding bargaining.

[6] On 7 November 2025 I issued directions that Professionals Australia file with the Commission, and serve copies on the Respondent by 14 November 2025, of a statutory declaration addressing any additional relevant information regarding the circumstances in which the emails and petition referred to in paragraph [4] were obtained; and, copies of any document or correspondence provided to the employees during the collection of the emails and petition. The directions also provided that Professional Australia file with the Commission, on a confidential basis, the emails and petition in unredacted form.

[7] On 14 November 2025 the Respondent was to file with the Commission, on a confidential basis, a list of employees engaged by the Respondent in the Group. The Respondent was also directed to file in the Commission a response to the Application, serving copies on Professionals Australia.

[8] The parties filed the material as directed. However, I was not satisfied on the materials before me that I could establish the Group constituents (due to different approaches by the parties) and whether the majority of employees within the Group were willing to bargain.

[9] The matter was listed for Mention and Directions on 11 December 2025. On 19 December 2025, I was advised by the parties that the number of employees within the Group had been agreed upon by the parties, but the question of whether a majority of these employees supported the commencement of bargaining was still in dispute. To determine this outstanding issue, the parties reached a consent position that a confidential ballot should be conducted by the Commission, with the terms of the ballot to be agreed upon by both parties.

[10] Directions were further issued by my Chambers on 23 December 2025, directing the parties to advise of any consent position in relation to the method and terminology to be adopted for the confidential ballot.

[11] On 20 January 2026, the parties submitted a consent proposal for the Commission to consider regarding the timing, method and terminology of a confidential ballot to ascertain whether there was majority support for bargaining, to be conducted by my Chambers. I considered that the proposal was an appropriate method to obtain the information required to satisfy myself of the matters in s s237(2)(a) of the Act. I determined that the relevant 'time' to apply to my consideration would be 30 January 2026 to 6 February 2026, being the ballot period that I adopted.

[12] On 30 January 2026, a confidential individual email was sent to each of the twenty employees within the Group from me, via my Associate, providing until 5:00PM on 6 February 2026 for each employee to advise whether they voted yes or no to commence bargaining with the Respondent (the ballot).

[13] I have reviewed the results of the ballot and I am satisfied that at the time determined by me, being 30 January 2026 to 6 February 2026, a majority of the employees in the Group want to bargain.

[14] Following my communication of the ballot results to the parties, the Respondent did not advance any argument that s237(1), s237(2)(a) and/or s237(2)(b) of the Act were not satisfied.

[15] Having satisfied myself that s237(1), s237(2)(a) and s237(2)(b) of the Act were satisfied on the basis of the materials before me, I issued further directions to the parties to confer on whether the majority support determination could be granted with the consent of the Respondent.

[16] The parties subsequently advised that they had conferred, and that the Respondent had no objection to the majority support determination being made by the Commission.

[17] I have considered the material filed by the parties and each of the matters I am required to take into account before making a majority support determination. None of the circumstances in s 236 (1A) or (1B) apply. The application conforms with the requirements in s 236 (2) of the Act.

[18] I am satisfied that the application has been made, and I am satisfied that the majority of the employees who are currently employed by the Respondent, and who will be covered by the agreement, want to bargain.

[19] I am satisfied that the Respondent has not yet agreed to bargain or initiated bargaining for the agreement.

[20] I am satisfied, having taken 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.

[21] I am satisfied that it is reasonable, in all the circumstances, to make the majority support determination.

[22] 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 s.237(1) and s.237(2)(a), (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 13 February 2026.

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