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 Deputies, Shift Engineers and/or Control Room Operators by Whitehaven Coal Mining Limited (the Respondent) at the Respondent's black coal mine known as "Narrabri Mine".

• [2] On 28 August 2025, Professionals Australia wrote to the Respondent seeking to commence negotiations for a new enterprise agreement. In a response sent on the same day, the Respondent did not agree to bargain with employees for a new enterprise agreement but advised that it would consider its position and provide a response in due course.

• [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

(a) a majority of the employees:

(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] On 5 September 2025 Professionals Australia filed the application after collecting a digital petition from employees. This was supported by a statement of Ms Jessup-Little, an employee of Professionals Australia and various documents. On 9 September 2025 the application was allocated to my Chambers. On 18 September 2025 I issued directions that Professionals Australia file with the Commission, and serve copies on the Respondent of a statutory declaration addressing any additional relevant information regarding the circumstances in which the Petition was obtained; and, copies of any document or correspondence provided to the employees during the collection of the petition by 25 September 2025. The directions also provided that Professional Australia file with the Commission on a confidential basis the petition in unredacted form. On 2 October 2025 the Respondent was to file with the Commission on a confidential basis, a list of employees engaged by the Respondent as Deputies, Shift Engineers and/or Control Room Operators at the Respondent's black coal mine known as "Narrabri Mine". The Respondent was also directed to file in the Commission a response to the Application, serving copies on Professionals Australia. The parties filed the material as directed.

• [5] In its response the Respondent advised that they have no objection to the majority support determination being made by the Commission.

• [6] 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.

• [7] 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.

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

• [9] 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.

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

• [11] 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 9 October 2025.

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