Application by Construction, Forestry, Maritime, Mining and Energy Union (105N) - [2022] FWC 690

1

Fair Work Act 2009 
s.236—Majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
v
MacKellar Mining Pty Ltd
(B2021/622)

DEPUTY PRESIDENT ASBURY BRISBANE, 30 MARCH 2022

MacKellar Mining Pty Ltd - Production and Maintenance Departments

Background

[1] The Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy 
Division (CFMMEU) applied under s.236 of the Fair Work Act 2009 (the Act) for a majority 
support determination with respect to employees in the production and maintenance 
departments (employees) of MacKellar Mining Pty Ltd (MacKellar Mining/the Company) at 
the Carmichael Coal Mine (Mine) in Central Queensland. 

[2] On its Form F30 application, the CFMMEU asserted that in response to communication 
it had sent to MacKellar Mining seeking to bargain for an enterprise agreement to cover the 
employees, its Operations Mining Manager, Mr Brad Zillman stated that “owing to the newly 
extended contractual arrangements with Bravus Mining and Resources, and no provision of a 
signed five-year contract [for the production phase at the Carmichael Coal Mine Project], 
MacKellar are not in a position to progress with the CFMMEU the commencement of 
bargaining for a new enterprise agreement”. 

[3] Directions were issued requiring that:

 The CFMMEU file an unredacted petition said to have been signed by the Employees 
in support of bargaining; and

 MacKellar file a list of employees described in the application to be covered by the 
proposed agreement.

[4] Both the petition and the list were required to be provided to the Commission only. Both 
parties filed the material required by the Directions. The list of employees provided by 
MacKellar Mining included 189 names.  After examining the signatures on the petition (which 
also contained the names of employees in handwriting beside their signatures) and the list of 
names provided by McKellar Mining, I formed the provisional view that 135 employees had 
signed the petition provided by the CFMMEU. On 20 August 2021, I caused correspondence 

[2022] FWC 690

DECISION


AUSTRALIA FairWork Commission




 



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to be sent to the parties advising them of my provisional view that based on the petition and the 
list, a majority of the employees of McKellar Mining wished to bargain. I requested that 
MacKellar Mining advise whether, in light of my provisional view, the application was opposed 
on any of the other grounds in s. 237(2) of the Act. 

[5] MacKellar Mining advised through its legal representative that it did not oppose the 
application on any other grounds, however it contended that the Commission should not reach 
the requisite satisfaction that a majority of employees want to bargain, solely by reference to 
the petition. MacKellar Mining proposed that a secret ballot of employees be conducted as an 
alternative method for ascertaining whether employees wished to bargain, which it submitted 
the Commission could implement pursuant to s 237(3). 

[6] In a letter dated 12 August 2021, addressed to the CFMMEU’s Senior Legal Officer Mr 
Chris Newman, and copied to my Chambers, MacKellar Mining advised through its legal 
representative that it did not accept that the petition provided by the CFMMEU is evidence 
which the Commission should accept as a reliable basis for reaching any conclusions regarding 
the preference of the workforce, or a majority of the workforce. It was suggested that the 
petition may have been obtained in a way which involved deceptive conduct and inappropriate 
pressure being placed on employees to sign the petition. MacKellar Mining proposed that if the 
application is pressed, the petition be set aside, and the matter proceed on the basis of a secret 
ballot conducted by the Australian Electoral Commission (AEC). 

[7] My Chambers was also copied into correspondence from the CFMMEU dated 18 
August 2021 in response to the letter from MacKellar Mining’s representatives on 12 August 
2021. The CFMMEU denied allegations that it had used deceptive conduct and/or inappropriate 
pressure on employees in order to obtain signatures on the petition. The CFMMEU did not 
accept MacKellar Mining’s proposal for the AEC to conduct a secret ballot. 

[8] Further Directions were issued requiring outlines of submissions and statements of 
evidence from witnesses to be relied on at the hearing to be filed.  A Hearing was conducted on 
14 and 28 September 2021.  The CFMMEU was represented by Mr R Anderson, Senior Legal 
Officer.  MacKellar Mining was represented by Mr D Williams, of Minter Ellison.  Permission 
was granted for the Respondent to be represented by a lawyer pursuant to s. 596 of the FW Act, 
on the basis that I was satisfied that representation would allow the matter to be dealt with more 
efficiently having regard to its complexity.

[9]  Evidence was given for the CFMMEU by Mr Shane John Brunker, District Vice 
President.1  Evidence for MacKellar Mining was given by: Mr Duncan Guy MacKellar, 
Managing Director2; Ms Brianna Chanel Jozsef, Production Operator3; Mr Leonard Michael 
Williams, Production Operator4; and Ms Monica Delyce Ritter, HR Superintendent Carmichael 
Mine5.  

[10] On 10 January 2022, I informed the parties that I was satisfied that the conditions in s. 
237(2) of the Act were met and that consistent with s. 237(1) I was required to issue a majority 
support determination as sought by the CFMMEU and issued the determination.  I also 
indicated that reasons for issuing the determination would be issued in due course.  These are 
my reasons.








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Legislation 

[11] An application for a majority support determination is made pursuant to s.236 of the 
Act, which provides as follows:

“236 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.

(2) The application must specify:

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

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

[12] Section 237 of the Act provides as follows:

“237 When the FWC must make a majority support determination

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

(2) The FWC must be satisfied that:

(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) 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), 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 








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employees who will be covered was fairly chosen, take into account whether the group is geographically, 
operationally or organisationally distinct.

Operation of determination

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

[13] The Commission must make a majority support determination if an application for the 
determination has been made and if the Commission is satisfied of those matters set out in 
s.237(2) of the Act. It is not in dispute that an application has been made.  It is also common 
ground that MacKellar has not agreed to bargain or initiated bargaining and the Company 
accepts that the group of employees who will be covered by the proposed agreement is fairly 
chosen.  The parties are in dispute about whether the Commission can be satisfied of the matters 
in s.237(2)(a), (c) and (d). 

Evidence 

MacKellar Mining

[14] MacKellar Mining is engaged by Adani Mining Pty Ltd to provide mining services on 
the Bravus Project at the Carmichael Coal Mine in Central Queensland.  Mr MacKellar states 
that the company is a “proud family business” founded by Mr MacKellar’s father in 1966 and 
has provided services to mines in Central Queensland for almost 50 years. 

[15] As previously stated, the Company’s case in opposition to the making of the Majority 
Support Determination is that the petition is not a reliable indication of employee preference on 
the basis that there is evidence that some of the signatures were obtained in a way which 
involved deceptive conduct and the application of inappropriate pressure to sign the petition in 
circumstances where the implications of doing so were not properly explained to the relevant 
employees.  The evidence given by witnesses for MacKellar Mining can be summarised as 
follows.

[16] Mr Duncan MacKellar is the Managing Director of MacKellar Mining. Mr MacKellar 
explained that many of the company’s employees have a long history with MacKellar Mining, 
with some having worked with the Company for over 30 years, including at the Mine. Mr 
MacKellar regularly visits the Mine site and communicates directly with the workforce. He has 
never heard any suggestion that employees are unhappy with their terms and conditions of 
employment, or that they would prefer to bargain for an enterprise agreement. Mr MacKellar 
accepted that many employees may not necessarily tell him directly if they were dissatisfied, 
however his belief is that if there was any groundswell of dissatisfaction at least some of the 
employees would let him know.  

[17] Under cross-examination Mr MacKellar said that he had not been informed that the 
Commission had conducted an analysis of the names of employees of MacKellar Mining on a 
list provided by the Company and signatures on the petition tendered by the CFMMEU and had 
corresponded with the Company to indicate that it had formed a provisional view that 70% of 
the Company’s employees wished to bargain for an enterprise agreement.  While accepting that 
this may be the case, Mr MacKellar also stated that if there had been coercion by the CFMMEU 
he was not sure that the petition is a true indication of how the workforce feels.   Mr MacKellar 








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also indicated his general antipathy to a “third party” such as the CFMMEU being involved in 
the relationship between the Company and its employees.

[18] Ms Jozsef is 21 years of age and had been employed by MacKellar as a production 
worker for one month when she made her statement on 28 July 2021.  Ms Jozsef said that on 
17 July 2021 she was taking a crib break in the Production Crib Room at the Carmichael Mine 
and that a male person she now knows to be Mr Brunker, was present in the crib room.  As Ms 
Jozsef entered the crib room another employee handed her a piece of paper with signatures on 
it.  Ms Jozsef asked what the paper was and did not receive a response.  According to Ms Jozsef, 
several other employees said: “sign it, we’ve all signed it”.  Ms Jozsef signed the piece of paper 
without reading it.  Ms Jozsef said that she did this because she thought that it was something 
to do with work and she was new to the Company.

[19]     Ms Jozsef recalled that once most people in the room had signed the piece of paper 
Mr Brunker started speaking about wages and flights. According to Ms Jozsef, Mr Brunker said 
that the piece of paper was a petition and it was about wages and flights. He mentioned the 
award and wages and said that employees could be getting more money. Ms Jozsef said that 
she did not really understand what he was talking about and did not understand the relevance 
of the petition that everyone had just signed. 

[20] In relation to flights Mr Brunker said words to the effect of “there’s a new contract 
coming and there's a really good possibility that your flights will not be paid for and you'll have 
to pay for your own flights”.  Ms Jozsef said that she did not believe what Mr Brunker was 
saying about the Company making employees pay for their own flights, but it seemed to her 
like a few people did. Ms Jozsef recalled that quite a few people became angry and were saying 
things like they had only agreed to come to the Mine because it was convenient and they would 
not work the Mine if they had to pay for their own flights. 

[21] Ms Jozsef could not recall if Mr Brunker said anything about an enterprise agreement 
or bargaining for an enterprise agreement. Ms Jozsef felt like she and other employees, had 
been pressured into signing the petition without Mr Brunker clearly explaining what the petition 
was for before they signed it. Later that night, Ms Jozsef called her mother, Ms Chanel Jozsef, 
and told her what had happened.  Mr MacKellar explained in his evidence that Ms Chanel Jozsef 
previously worked for the Company as did Ms Jozsef’s grandfather.  

[22] Under cross-examination Ms Jozsef accepted that she had an opportunity to read the 
petition if she wanted to, to ask questions about it and was not threatened in relation to signing 
the petition6.  Ms Jozsef still works with the employees who were in the crib room that day and 
has no issues with doing so although she observed they are pro-union.  Ms Jozsef agreed that 
the employees who are pro-union are not doing anything wrong and are simply expressing their 
strong views that everyone should be in the union and that they had not done more than that on 
17 July 2021.  Ms Joszef also agreed that Mr Brunker was not speaking when she walked into 
the crib room and that she signed the petition before Mr Brunker spoke.  Further, Ms Joszef 
agreed that she saw other employees signing the petition before Mr Brunker spoke and that 
consistent with her witness statement, most people in the room signed the petition before Mr 
Brunker spoke and that this meant that the persons who signed the petition did not do so because 
of what Mr Brunker said.  








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[23] Ms Jozsef was also questioned about what happened after the meeting and said that she 
contacted her mother and told her that she had signed a petition “against” MacKellar Mining 
and felt that she had turned against the Company as she was happy with her contract.  In 
response to the proposition that she could have simply asked Mr Brunker to cross her name off 
the petition if she was concerned about signing it, Ms Jozsef said that it was her first week, she 
had a lot of things going through her head and once she had finished work that day, things 
settled in her head and she thought that she should not have signed the petition.  Having now 
read the petition, Ms Jozsef is not confused about what it said and agreed that had she read the 
petition at the time, she would have understood what it was about.7  Ms Jozsef agreed that Mr 
Brunker spoke about wages and flights but also spoke about other things and could not 
remember whether Mr Brunker spoke about bargaining for an enterprise agreement.   

[24] Ms Jozsef said that Mr Brunker spoke about the possibility of flights being taken away 
but maintained that this should have been spoken about at all unless it was true.  Ms Jozsef also 
said that she was informed at the time of starting employment that flights to site were provided 
and that Bravus was paying for the flights.  She understood that the provision of flights is part 
of a policy that MacKellar Mining has and could not understand why they would be removed 
as it did not make sense for this to occur.

[25] In relation to the telephone call to her mother on the evening of 17 July 2021, Ms Jozsef 
said that she called for a general catchup and told her mother about signing the petition during 
that discussion.  Ms Brianna Jozsef said that she was upset as she felt she had “stabbed the 
MacKellars in the back” and her mother said that she would talk to Duncan [MacKellar] and 
Andre and tell them how Ms Jozsef felt.   Ms Jozsef also told her mother that she felt pressured 
to be part of the union as she is aware that some members of her crew are not union members 
and has heard things said about them by people who are part of the union.  

[26] Ms Jozsef said that Ms Ritter contacted her on her days off to conduct a welfare check.  
Ms Jozsef also said that she did not speak to Mr MacKellar until he contacted her and asked her 
to make a statement to be used in the hearing relating to the CFMMEU’s application.  Ms Jozsef 
reiterated that she did not speak to Mr MacKellar other than in connection with making a 
statement and that he initiated the telephone call. 8   Further, Ms Jozseph said that her mother 
had sent her Mr MacKellar’s phone number and told her that Mr MacKellar would contact her 
to discuss whether she was comfortable providing a statement for these proceedings.  Finally, 
Ms Jozsef agreed that she did not tell her mother or Ms Ritter that she had been forced or 
pressured to sign the petition and confirmed that Mr Brunker said that there is a possibility that 
employees of MacKellar would lose their flights rather than this would definitely happen. 

[27] Mr Leonard Williams, a production operator employed by MacKellar, said in his 
evidence that on 17 July 2021, he went to the Production crib room on site to take his break 
during his shift.  Under cross-examination, Mr Williams conceded that the date he referred to 
in his statement may not be correct, and that he could go back through a calendar and work out 
the date.9

[28] When Mr Williams the entered the crib room he recalled seeing about eight other 
employees in the room. Mr Brunker was in the crib hut talking to workers, accompanied by 
another male person from the CFMMEU, however Mr Williams did not know his name. When 
questioned during cross examination Mr Williams referred to the second person with Mr 








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Brunker as a “shorter fellow, stocky, bit curlyish sort of hair”.10 Mr Williams maintained under 
cross-examination that this person was not another employee.   

[29] Mr Williams stated that Mr Brunker had a piece of paper which he was walking around 
the room with, asking people to sign. Mr Williams saw some employees signing the piece of 
paper. Mr Williams sat down at a table in the crib room and was approached by Mr Bunker, 
who placed the paper down in front of him and asked him to sign it. According to Mr Williams, 
Mr Brunker did not explain to him what he was being asked to sign. When Mr Williams said 
that he would not sign the piece of paper, Mr Brunker said words to the effect of: “Don’t you 
want an EBA and more money? You want more money don’t you?”. In response, Mr Williams 
said that he was in his own negotiations with MacKellar Mining.  

[30] Mr Williams did not read or sign the piece of paper, but he did hear Mr Brunker refer to 
it as a petition and tell employees that they should sign it so that the CFMMEU could get 
employees an EBA and more money. Under cross-examination, Mr Williams accepted that after 
he refused to sign, Mr Brunker did not try and pressure or threaten him about signing the 
petition.11 Mr Williams also accepted that despite not looking at it, he understood what the piece 
of paper was and knew that it was about enterprise bargaining.12 

[31] Mr Williams said that Mr Brunker made the following statements multiple times to 
employees in the crib room:

(a) “They are going to take your flights off you and make you pay for your own flights because they’re 
not in your contract”

(b) “You’ll lose your flights and they will make you pay to go to work”

(c) “The same thing happened to the good people at Clermont. They’ll probably just offer you $100 
towards your flights”

(d) “They shouldn’t have taken the 15% night shift allowance off you. They had no right”

(e) “I’ve challenged Sunshine Coast and they won’t talk”

(f) “I’ve been trying to talk to Sunshine Coast and they don’t want anything to do with me”

(g) “I’ve asked for documents and they’re not giving them to me”

[32] Mr Williams clarified that by “they” and “Sunshine Coast” he understood Mr Brunker 
to be referring to the Company. Mr Brunker also referred to Ms Monica Ritter, HR 
Superintendent at MacKellar Mining, suggesting that the CFMMEU was trying to get more 
money for employees but that the Company was refusing to engage with the Union. According 
to Mr Williams, Mr Brunker also suggested that Ms Ritter and the company had already decided 
to remove employees’ flight entitlements but had not informed employees. 

[33] Mr Williams said that he challenged Mr Brunker on some of the statements he had made, 
including in relation to the “good people at Clermont”. Mr Williams did not know who Mr 
Brunker was referring to in this statement but recalled saying words to the effect of: “that’s not 
right. They won’t be doing that because there’s no commercial flights [to the Mine]”. In 
response Mr Brunker said words to the effect of “they had to all fly into Emerald and had to 
make their own way to Clermont”.








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[34] Mr Williams also challenged Mr Brunker on his statement about MacKellar Mining 
taking the night shift allowance from employees. Mr Williams said words to the effect of: 
“that’s ridiculous because we’ve still got it. They annualised it over our hourly rate and our 
hourly rate went up so we’re in front by what they’ve done. Now we get the loading even if 
we’re on holidays. You’re going to be flat out getting more than that unless you go to a BMA 
site”.

[35] Mr Williams stated that he did not believe anything that Mr Brunker was saying, 
however he believes that the other employees who were listening to him may have been misled 
by the false statements Mr Brunker was making about MacKellar Mining, its intentions and the 
removal of employee entitlements. Mr Williams believes that most of the employees who were 
in the crib room at the time he was signed the petition. 

[36] Under cross-examination, Mr Williams maintained that there was a second official from 
the CFMMEU present in the crib room with Mr Brunker on 17 July 2021.  In response to the 
proposition that Ms Jozsef said that there was one CFMMEU official present in the crib room 
on 17 July 2021, Mr Williams said that he does not know Ms Joszef and she is not on his crew, 
and that Ms Jozsef could not have been present on the same day that Mr Williams was in the 
crib room. Mr Williams said that he recalled that he was there because he had an altercation 
with Mr Brunker but would need to consult a calendar to confirm whether he was at work on 
17 July.  In response to the proposition that his statement was inaccurate, Mr Williams said that 
his statement was correct but that the date may be incorrect. Mr Williams also said that he made 
a complaint about Mr Brunker’s attendance it the crib and told his supervisor that what Mr 
Brunker said was “propaganda” and “proven to be rubbish” and was subsequently asked to 
make a statement for these proceedings.  

[37] Mr Williams confirmed that there were approximately eight other employees in the crib 
room when he entered and that Mr Brunker walked over and put a clipboard with a piece of 
paper on it in front of him and asked him to sign it.  Mr Williams said that he asked what the 
document was and Mr Brunker told him that it was a petition to get a new EBA.  Mr Williams 
also said that he is not in the habit of signing documents that he has not read and although he 
did not look at the petition he knew what it was.  Mr Williams agreed that he decided not to 
sign the petition and was not coerced or bullied in relation to that decision and that he did not 
know whether other employees who signed the petition read it or not.  Mr Williams also agreed 
that Mr Brunker spoke after the petition had been signed by a number of employees in the room.  

[38] Mr Williams maintained that Mr Brunker walked over to him but agreed with Mr 
Brunker’s evidence that he asked Mr Brunker: “what’s this shit about?” and that he told Mr 
Brunker that he negotiates his own contract.  Mr Williams disagreed with the proposition that 
Mr Brunker merely raised a possibility that flights would be taken away and maintained that 
this is not how he heard it.  Mr Williams also said that Mr Brunker talked about flights being 
taken away from employees because they were not in their contracts and that this had happened 
to “the good people at Clermont”.  Mr Williams also disagreed with Mr Brunker’s evidence 
that he was aggressive but said that he listened first and then “fired questions”.  Mr Williams 
agreed that Mr Brunker did not guarantee that there would be a pay rise if he signed the petition.  
Mr Williams also agreed that he did not know whether other employees were misled by what 
Mr Brunker said as he did not know what they were thinking.  








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[39] Mr Williams agreed that on another occasion when Mr Brunker attended at the site on 
4 September 2021, he walked into the crib room and said: “Fucking great surprise.  It’s the 
Union” because he was told by workmates, who knew that he had challenged Mr Brunker last 
time he had attended the site, that there was a surprise for him in the crib room.  Mr Williams 
also agreed that on that occasion he also challenged Mr Brunker when he asked for Mr Brunker 
to state whether something was true or false and Mr Brunker said: “I believe so”.  This caused 
Mr Williams to say: “Well that’s not an answer.  Stop drivelling shit.”  Mr Williams denied that 
he was giving evidence in these proceedings because he does not like the Union.  In re-
examination Mr Williams said that his recollection of the events is clear in his mind “because 
I’ve got a good memory for bullshit” although he may have been mistaken about the date on 
which the events occurred.  

[40] Mr MacKellar understands that the CFMMEU conducted a right of entry visit at the 
Production crib room and Maintenance crib room at the Mine site on 17 July 2021.  Mr 
MacKellar stated that on or around 25 August 2021 he received a call from Ms Chanel Jozsef, 
whose 20-year-old daughter, Ms Brianna Jozsef (Ms Jozsef), is employed by the Company as 
a Production Operator at the Mine. Mr MacKellar recalled that Ms Chanel Jozsef advised him 
that her daughter was very upset after the right of entry visit as she felt that she had been forced 
to sign a document, and did not know what the document was.  Following his discussion with 
Ms Chanel Jozsef, Mr MacKellar advised Mr Chris McCartney, Head of People and Culture 
and asked Mr McCartney to ensure that he arranged for someone to follow up with Ms Jozsef 
to conduct a welfare check. 

[41] Regarding flight entitlements, Mr MacKellar stated that there are no commercial airlines 
that fly to the Mine site. Accordingly, the Company has arranged charter flights for employees 
who work at the Mine to travel to site. The flights depart from either Townsville or 
Rockhampton. Mr MacKellar confirmed that MacKellar Mining pays for these charter flights 
on behalf of employees. This is an entitlement that is provided to all employees who work at 
the Mine, and it is a term of employees' employment contracts that they be transported from the 
embarkation point to the Mine. Mr MacKellar was adamant that the Company has no intention 
of removing the charter flights, nor to require employees to pay for their own tickets on the 
charter flights. According to Mr MacKellar it has never been suggested to do so nor was it even 
in contemplation.  

[42] Under cross examination, Mr MacKellar maintained that Ms Chanel Jozsef contacted 
him on or around 25 August 2021, notwithstanding that the right of entry visit her daughter 
complained about occurred on 17 July 2021.  Mr MacKellar said that he had travelled to the 
United States for work purposes for the period from mid-July to mid-August 2021.  According 
to Mr MacKellar, Ms Jozsef was a new employee to the site, and was told to just sign the 
document and was “a little bit intimidated, as a 20-year old young girl may be” and was 
“horrified” after she heard the topic that Mr Brunker was discussing in the crib room.  Mr 
MacKellar said that this information caused him concern and he would be a lot more 
comfortable with a secret ballot to see what the real number of employees who wish to bargain 
is.13  Mr MacKellar also said that his understanding is that the AEC would become involved in 
such a ballot.  Mr MacKellar also said that Ms Jozsef is a third generation employee and that 
her mother (Ms Chanel Jozsef) and grandfather had worked for the Company.  








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[43] Mr MacKellar further stated that he spoke to Ms Jozsef directly after his phone call with 
her mother14 although later conceded that he wasn’t sure if he called Ms Jozsef or if Ms Jozsef 
called him and that it may have been the next day.15 Mr MacKellar accepted that he did not give 
evidence about this phone call with Ms Jozsef in his written statement and said that he did not 
know that this was required. 

[44] Mr MacKellar also said under cross-examination that he had not revised his direction to 
Mr McCartney after having spoken directly to Ms Jozsef as he likes his team to continue to 
follow up in relation to an incident like that.  Mr MacKellar confirmed that he did not send any 
emails to Mr McCartney concerning the subject matter of Ms Jozsef’s complaint.   Further, Mr 
MacKellar said that he did not become involved in the matter until August 2021 as he was 
overseas at the relevant time. 16 

[45] Mr MacKellar was questioned about correspondence between the CFMMEU and the 
Company in relation to bargaining, tendered by Mr Brunker, indicating that MacKellar Mining 
advised on 29 July 2021 that it did not wish to bargain with the CFMMEU owing to newly 
extended contractual arrangements with Bravus Mining and not having a five year contract.  Mr 
MacKellar said that this was not the sole reason for the Company not wishing to bargain with 
the CFMMEU.  Mr MacKellar also said that if the majority of employees want to deal with an 
“intermediary” this is the course he will follow despite the fact that in 60 years of business, the 
Company had enjoyed working directly with employees and resolving issues. Mr MacKellar 
accepted that the Company did not raise any issue with the conduct of Mr Brunker or in relation 
to complaints by Ms Jozsef and Mr Williams in the correspondence of 29 July, notwithstanding 
that the complaints related to Mr Brunker’s conduct on 17 July 2021 and were made on or 
around 21 July.  

[46] Mr MacKellar said that he is not aware of whether the concerns that Mr Brunker and 
the CFMMEU were misleading employees about flights arose before or after 17 July and agreed 
that he had not gone out to the workforce to seek to correct the alleged misinformation or 
misleading conduct.  Mr MacKellar also agreed that his primary concern for the purpose of 
hearing in relation to the Company’s opposition to the making of a majority support 
determination, was in relation to the right of entry exercised by Mr Brunker on 17 July 2021.  
In response to a question as to whether his position would change if a majority of employees 
had already signed the petition before 17 July 2021, Mr MacKellar said that: “Again the 
Company will follow the wishes of the majority of employees.  Whatever date that may be all I 
am asking for is just to ascertain through a secret ballot that those are the numbers and that 
there hasn’t, you know, been fearmongering with misinformation.”17  

[47] Mr MacKellar was also shown the content of the petition signed by employees and 
agreed that it was all very clear.  However, Mr MacKellar maintained that he did not accept that 
the majority of employees wanted to bargain and that this may have changed because the 
Company now had a long-term contract giving employees a greater sense of security and he 
had personally addressed employees and this may have alleviated their fears.  Mr MacKellar 
also said that there are now more employees and the percentage may not be accurate.  In 
response to a question from the Commission, Mr MacKellar agreed that if Ms Jozsef was 
pressured to sign the petition this was done by a co-worker and there was no evidence that a 
CFMMEU official had pressured Ms Jozsef.18








[2022] FWC 690

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[48] Ms Ritter stated that on or around 21 July 2021, Mr McCartney, Head of People and 
Culture at MacKellar Mining contacted her via telephone and advised that Ms Jozsef was very 
upset after the right of entry visit and had been forced to sign a document and did not know 
what the document was. Mr McCartney requested that Ms Ritter contact Ms Jozsef to conduct 
a welfare check.   

[49] As instructed by Mr McCartney, Ms Ritter called Ms Jozsef on 21 July 2021 to conduct 
a welfare check. Ms Ritter advised Ms Jozsef that Senior Management of the Company had 
notified her of concerns regarding the right of entry on 17 July 2021. Ms Jozef told Ms Ritter 
that Mr Brunker had told employees in the crib room that the Company would be making 
employees pay for their own charter flights; that she felt pressured to sign a document presented 
by the CFMMEU while she was in the crib room; she did not know or understand the document 
she had signed; she subsequently told her mother about the incident and her mother, who had a 
longstanding professional relationship with MacKellar, contacted Mr MacKellar to let him 
know that Ms Jozsef was upset by the incident. 

[50] Ms Ritter also addressed statements allegedly made by Mr Brunker during the right of 
entry on 17 July 2021 as outlined in the evidence of Mr Williams above and responded as 
follows:

(a) She has not refused to deal with Mr Brunker or the CFMMEU;

(b) She had a number of conversations with Mr Brunker during the course of her 
employment with MacKellar Mining, working at the Mine. These conversations 
have mainly related to disciplinary matters in which Mr Brunker was engaged as the 
employee representative;

(c) On 13 July 2021, she attended a meeting with Mr Brunker and Mr Brad Zillman, to 
discuss the CFMMEU’s expectations regarding any proposed enterprise agreements 
should the Company decide to enter into bargaining; and 

(d) She has never told Mr Brunker or any CFMMEU representative that the Company 
was intending to remove the travel benefit for employees who work at the Mine. 

[51] Under cross-examination, Ms Ritter agreed that she was not in the crib rooms on any of 
the occasions when Mr Brunker exercised his right of entry and had not direct knowledge of 
what occurred in the crib rooms.  Ms Ritter maintained that Mr McCartney contacted her on 21 
July and that the purpose of his phone call was to advise that Ms Jozsef’s mother had contacted 
Mr MacKellar and advised that Ms Jozsef was very upset about being forced to sign a document 
during right of entry and that Mr McCartney requested that she contact Ms Jozsef and conduct 
a welfare check.  Ms Ritter also maintained that Ms Jozsef stated that Mr Brunker told 
employees that MacKellar Mining would withdraw flights to site and make employees pay for 
flights.  Ms Ritter said that it was her interpretation of the discussion that Ms Jozsef said she 
felt pressured to sign a document which she did not understand.  

[52] Ms Ritter agreed that Mr Brunker had asked for information about pay calculations and 
said it was not provided because Mr Brunker did not respond to her requests that he provide the 
names of employees on whose behalf he was seeking the information.  Ms Ritter maintained 








[2022] FWC 690

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that this was to protect the privacy of employees who are on individual contracts in relation to 
their pay rates.  Ms Ritter also said that she advised Mr Brunker that if individual employees 
had grievances they could put these in writing to the Company and they would be addressed.  
Ms Ritter agreed that all employees at various levels are paid the same amount and that it would 
not be possible to identify individual employees simply from their pay rates.  Ms Ritter did not 
accept the proposition that she did not want to deal with the Union and maintained that Mr 
Brunker had not answered her reasonable requests for information.  Ms Ritter confirmed that 
no investigation was conducted by MacKellar Mining in relation to the conduct of employees 
in the crib room on 17 July 2021 as a result of the concerns raised by Ms Jozsef.  Ms Ritter also 
confirmed that she had not contacted Mr Brunker in relation to concerns raised by Ms Jozsef.

[53] In response to the proposition that no attempts were made by the Company to correct 
statements made by Mr Brunker which it alleged were misleading, Ms Ritter said that this was 
addressed by Mr MacKellar who attended two pre-start meetings at site and sent out formal 
communications to employees advising that they would not be paying for flights.  Ms Ritter 
accepted that Mr MacKellar’s communication with employees occurred at a period that was 
significantly later than the time at which Mr Brunker made the comments.  Ms Ritter also said 
that she had communicated with Mr Brunker on or about 31 July stating that the Company is 
providing transport for employees to site from embarkation points in Rockhampton and 
Townsville.  Ms Ritter accepted that Mr Brunker had requested a copy of MacKellar Mining’s 
travel policy and that she had not provided this as she did not believe it was necessary given 
her clear messaging to Mr Brunker about the Company’s position with respect to travel, 
communicated in emails.  

[54] Ms Ritter accepted that she attended a meeting with Mr Brunker at which Mr Zillman 
was also present, on or about 13 July.  Ms Ritter disagreed with the proposition that either she 
or Mr Zillman told Mr Brunker that MacKellar Mining was still negotiating with Bravus in 
relation to flights or that negotiations with Bravus were discussed at all.  Ms Ritter did accept 
that Mr Brunker requested that the enterprise agreement sought by the CFMMEU include a 
subclause in relation to the provision of flights for employees to and from the site.  Ms Ritter 
did not accept that the Company could change its policy about flights at any time, and 
maintained that the Company has, and always intends to, provide flights to employees to the 
Carmichael Coal Mine Project. Later Ms Ritter agreed that the Company could change the 
policy but reiterated that Mr MacKellar had already provided a written guarantee to employees 
that charter flights would not be withdrawn and employees would not be paying for their flights.  

[55] In re-examination, Ms Ritter was shown an email from Mr Brunker dated 12 June in 
which he stated that he is a representative of employees pursuant to a dispute settlement 
procedure and that in the absence of the matter not being resolved, an application would be 
made to the Fair Work Commission.  Ms Ritter said that no such application had been made.   

CFMMEU

[56] Mr Brunker stated that he has sought to engage with MacKellar about a range of issues 
that have been raised with him by employees at the Mine, particularly travel arrangements, 
remuneration and pay issues and in relation to bargaining. Mr Brunker’s view that it is important 
to try and get an enterprise agreement in place as soon as reasonably possible as this is better 








[2022] FWC 690

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for workers and that workers being organised in a union has benefits including better terms and 
conditions and better safety and health outcomes.

[57] Between February 2021 and September 2021 Mr Brunker attended the Mine on 
approximately 13 occasions to hold discussions with employees. At no stage does he recall 
receiving any complaints from management about his conduct at the Mine. During those visits, 
Mr Brunker spoke to a large number of workers at the Mine and engaging with them about 
various issues including pay and conditions at the Mine, individual contracts and potential 
bargaining. 

[58] Mr Brunker stated that workers of the Mine raised issues such as not being given an 
explanation of the calculations used to make up their payments, not receiving overtime 
payments (instead being paid the ordinary rate for those hours), not receiving a production 
bonus despite reaching coal, changes in their contracts relating to travel arrangements, 
payments for annual and personal leave, conditions at the Mine and the fact that there was no 
enterprise agreement in place. 

[59] Mr Brunker stated that on least two occasions he has requested that MacKellar Mining 
agree to commence bargaining. On 9 December 2020 he wrote to MacKellar Mining seeking 
to initiate bargaining for an enterprise agreement. On 15 December 2020, Mr MacKellar 
responded advising that the Company did not see any reason to commence bargaining because 
the conditions offered to employees are above the relevant Award.  Mr Brunker stated that given 
the Company’s refusal to bargain, members were becoming increasingly frustrated with the 
lack of conditions and low pay rates at the Mine. Mr Brunker determined that a petition should 
be organised to see if a majority of the relevant workers wanted to bargain for an enterprise 
agreement, and if so, the petition could be used in a majority support application.  The petition 
circulated by the CFMMEU contained the following statement at the top of each page of 
signatures:

“Bargaining Petition for Production and Engineering Employees – MacKellar Mining Pty Ltd at 
Carmichael Coal Mine

We, the undersigned, are employed by MacKellar Mining Pty Ltd (“MacKellar”) as production (including 
operators) and engineering employees at the Carmichael Coal Mine (“Mine”). By signing this petition we 
confirm that we wish that the terms and conditions of employment for all production and engineering 
employees, employed by MacKellar at the Mine, to be covered by an enterprise agreement. We request 
that MacKellar issue a notice of employee representational rights to all production and engineering 
employees and commence bargaining with our representatives as soon as possible with the goal of 
including terms and conditions for a stand-alone enterprise agreement. 

We acknowledge that if MacKellar does not agree to our request, this petition may be used as evidence 
by the CFMMEU (Mining and Energy Division) in support of a Majority Support Determination 
application under s.236 of the Fair Work Act (Cth) 2009”.

[60] On 19 July 2021 Mr Brunker sent a letter to Mr Brad Zillman, MacKellar’s Operations 
Manager, requesting that MacKellar initiate bargaining. The letter noted that the CFMMEU had 
circulated a petition and that the CFMMEU thought a majority had supported the petition. On 
21 July 2021 Mr Brunker received a response from Ms Ritter advising that Mr MacKellar was 
in the United States until 30 July 2021 and indicated that a response would be provided upon 
his return as he was the primary decision maker. 








[2022] FWC 690

14

[61] Mr Brunker received a further email from Ms Ritter on 29 July 2021 attaching a letter 
from Mr MacKellar which stated that MacKellar were still in the process of securing a five-
year commercial contract with Bravus Mining and Resources, owner of the Mine, and that they 
would not be commencing bargaining for a new enterprise agreement until they had certainty 
over that contract. The letter contained no other reason as to why MacKellar would not 
commence bargaining at that time. Further, Mr Brunker stated that the letter made no mention 
of any suggested inappropriate conduct on his part, not did it mention any concerns relating to 
the petition. 

[62] Mr Brunker’s view is that each page of the petition contains a very clear explanation of 
what the purpose of the petition is, and what those who sign the petition are agreeing with. The 
wording used in the petition is similar to wording Mr Brunker has used previously at other sites, 
but also includes an acknowledgement that the petition may be used by the CFMMEU in an 
application for a majority support determination. The petition called on MacKellar Mining to 
commence bargaining, which was something the Company has refused to do despite the clear 
majority of their employees seeking to bargain.

[63] Mr Brunker explained that the petition was signed during the course of four right of 
entry visits by himself and others, on four separate days including: 

(a) 27 June 2021 when Mr Brunker attended both the Production Crib Hut and the 
Workshop Crib Hut;

(b) 4 July 2021 when Mr Brunker attended the Production Crib Hut with Mr Stephen 
Smyth, CFMMEU District Presiden and Mr Brodie Brunker, CFMMEU District 
Board of Management Committee Member, attended the Workshop Crib Hut.

(c) 11 July 2021, when Mr Brunker attended the Production Crib Hut together with Mr 
Smyth and Mr Michael Howells, CFMMEU District Board of Management 
Committee Member, attended the Workshop Crib Hut.

(d) 17 July 2021 when Mr Brunker attended the Production Crib Hut and Mr Howell 
attended the Workshop Crib Hut.

[64] Mr Brunker confirmed that the petition documents were in the presence of one of the 
above CFMMEU representatives at all times. Prior to attending site, Mr Brunker discussed with  
each of the other relevant persons the need to ensure a chain of custody over the petition. He 
also discussed with the other representatives what might be discussed with workers, including 
the need to explain that the petition was for the purposes of trying to ensure that bargaining 
would occur.  On each visit, where another CFMMEU representative was present, Mr Brunker 
provided them with copies of the petition on clip boards which they took with them to the 
relevant area where they were talking to workers. They would then return those to Mr Brunker 
after the visit. 

[65] Mr Brunker recalled that during the right of entry visits, he often went from table to 
table collecting any signed petitions, answering any questions, and otherwise just talking with 
the workers. On some occasions he was asked by workers whether or not they could sign the 
petition as they were labour hire employees. As a result, a number of the workers did not sign 








[2022] FWC 690

15

the petition, and two who did then crossed out their names. Mr Brunker explained the purpose 
of the petition and in some cases read out the preamble.

[66] Mr Brunker stated that during each of the right of entry visits employees would come 
and go, and in most cases they would not be present during the entirety of his time in the crib 
hut. The crib breaks are staggered so employees have their cribs at different times within a 
window of time.  Mr Brunker further stated that pursuant to the unredacted petition provided to 
the Commission, 37 employees signed the petition on 17 July 2021. In total, over the four 
relevant days, 135 of 189 eligible employees signed the petition. Mr Brunker said that he was 
pretty sure after his visit on 11 July 2021, and before he attended the mine on 17 July 2021, that 
a majority of relevant employees had signed the petition, but he wanted to try and make sure 
that all the crews that he could get were included and had an opportunity to sign the petition in 
the event that MacKellar Mining continued to refuse to bargain. Mr Brunker maintained that 
there were no further signatures on the petition after 17 July 2021. 

[67] Mr Brunker recalled that he arrived together with Mr Michael Howells at the Mine on 
17 July 2021. Both were met at the front gate by an escort and were driven in a light vehicle to 
the workshop crib hut, where Mr Howells exited the vehicle and performed his right of entry in 
that crib hut. Mr Brunker stayed in the vehicle and was taken to the HV Go Line crib hut 
(Production Crib Hut). According to Mr Brunker, Mr Howells did not go into the Production 
Crib Hut. 

[68] As with the other occasions when the petition was collected, Mr Brunker provided blank 
copies for Mr Howells to circulate for signing. Mr Brunker collected the completed petition 
sheets from Mr Howells at the end of the ROE.  Mr Brunker stated that while he was in the 
Production Crib Hut, he spoke about a number of issues to workers that were present. As with 
the other occasions on which he circulated the petition, he:

(a) explained the petition, and that it was to try and get MacKellar to commence 
bargaining. 

(b) encouraged those present to read the petition, and to sign it. 

(c) did not stand over, threaten, or intimidate anyone into signing the petition. 

(d) encouraged those present to pass the petition around for those who wanted to sign 
it. 

(e) spoke about a range of issues that had been raised with me by MacKellar employees, 
including travel arrangements and remuneration. 

(f) explained that the petition was about bargaining for an enterprise agreement that 
would have terms and conditions. He explained this on a number of occasions during 
each visit, including at the beginning. This included my reading out the preamble 
that is also at the top of the petition on each page. 

(g) was asked questions by those present who had concerns that MacKellar Mining 
might be provided a copy or told they had signed the petition. Many of those asking 








[2022] FWC 690

16

the questions specifically asked about the reference to the petition being used as 
evidence in the preamble. When asked those questions he explained that the 
CFMMEU would seek to ensure that the names of those who signed would only be 
provided to the Commission and not MacKellar Mining. 

(h) explained that at other sites, where flights were not locked into enterprise 
agreements, that those arrangements could change. He specifically referenced 
Clermont and Grosvenor Mines where he believed that had happened recently. 

(i) spoke to some calculations he had prepared in relation to the pay rates, comparing 
them to the Award and BHP’s in-house labour hire provider Operation Services.

(j) passed around some copies of a comparison between an earlier version of an 
individual contract at the Mine, and a more recent one, so far as they deal with the 
travel arrangements. Mr Brunker spoke about the different wording in the contract 
and also relayed the content of his email exchanges with Ms Ritter about the issue.

[69] After speaking with the workers, Mr Brunker stated that he left the crib hut. His 
recollection is that the escort was waiting outside the production crib hut at that time. He was 
then driven to the workshop crib hut, where Mr Howells was collected, before they were both 
driven to the front gate. 

[70] Mr Brunker’s understanding is that there were approximately 28 employees on the 
relevant shift. There were also some civil contractors and some labour hire workers. The 
workers would come and go as they took their crib breaks. Mr Brunker understands that crib 
breaks are 30 minutes long, although some would stay for less time, for example those who 
smoke. Others would stay longer, for example, if waiting for equipment to operate, but that was 
an exception. 

[71] Mr Brunker stated that he was very clear about the purpose of the petition and did not 
say anything that was inconsistent with the preamble on the petition. At no time did he simply 
say that the petition was to get more money or secure flights. Mr Brunker accepted that he did 
talk about those subjects but maintained that he did not do so in a way that was confusing or 
misled anyone about the purpose of the petition.

[72] Mr Brunker recalled that on approximately 1 September 2021 he was contacted by an 
employee at the Mine advising that the CEO of MacKellar Mining had announced a five-year 
contract. Mr Brunker understood that a statement was distributed by MacKellar Mining which 
reassured staff that employees would not have to pay for flights.  On 4 September 2021 Mr 
Brunker attended the Mine to undertake another right of entry. Specifically, Mr Brunker 
attended the Production crib hut. Mr Brunker explained that at a late stage of his right of entry 
window he was trying to make sure that he would be able to speak to the last of the relevant 
crew who hadn’t yet had their crib breaks.  According to Mr Brunker. Mr Williams entered the 
room. Mr Brunker recalled to the best of his knowledge that Mr Williams said in a loud voice: 
“oh great, the fucking union is here again”. 

[73] Mr Brunker’s view is that Mr Williams was clearly hostile towards himself and the 
CFMMEU.  In an attempt not to engage or provoke Mr Williams, Mr Brunker deliberately 








[2022] FWC 690

17

walked in front of him so that his back was towards Mr Williams and he was facing other 
workers. According to Mr Brunker, Mr Williams yelled out in a loud voice: “I don’t want to 
read this shit on my crib break”. Mr Brunker took him to be referring to some pamphlets that 
he had passed around for Unity Bank and Union Shopper. Mr Brunker then turned to Mr 
Williams and said words to the effect of “you don’t have to read it” and “I didn’t ask you to 
read it”. Mr Brunker said that he leant over and moved the pamphlets along the table so that 
they were not near Mr Williams. 

[74] Mr Brunker stated that while he was talking to the other workers, Mr Williams 
interrupted on a number of occasions, challenging Mr Brunker about flights, which he was not 
talking about at the time. Mr Brunker recalled answering Mr Williams saying that he did not 
think the contracts were clear on flights. Mr Brunker’s evidence is that Mr Williams then 
changed the subject to pay rates and suggestions made by Mr Brunker including that he did not 
think pay rates were up to the Award rates given increases in Award rates in July. Mr Williams 
said words to the effect of: “if you show they are paying below the Award then they will 
backpay”. Mr Brunker replied with words to the effect of: “thanks Mick, I’ll take you with me 
when we talk to HR”. Mr Williams then grunted and left the room. 

[75] According to Mr Brunker at no time during the right of entry visit did any employee 
approach him or otherwise suggest that he had misled them, that they wanted their name taken 
off the petition, or anything to that effect. No other person present said anything to indicate that 
they agreed with Mr Williams, nor suggested that they did not understand the petition that had 
previously been circulated or to suggest that they had changed their minds. 

[76] Based on his interactions with Mr Williams, Mr Brunker’s belief is that Mr Williams is 
clearly not a fan of the CFMMEU, does not agree with issues that he discussed and does not 
hold the same view as many of the workers who had raised issues with him about the Mine and 
the Company. Mr Brunker appreciates that that Mr Williams is entitled to his own opinions, 
however based on his interaction with other workers, Mr Brunker does not believe that Mr 
Williams’ views are consistent with the views of the vast majority of workforce. 

[77] Mr Bunker’s experience from engaging with workers at the Mine, and the feedback 
received from other CFMMEU representatives that attended the Mine, was that an 
overwhelming majority of workers spoken to wanted to bargain for an enterprise agreement 
and wanted MacKellar Mining to enter into discussions.

[78] Mr Brunker referred to Mr MacKellar’s statement that he regularly visits the Mine and 
has not heard any suggestion about employee’s being dissatisfied with their terms and 
conditions. Mr Brunker stated that this was a “completely incorrect view” of the workforce at 
the Mine. Having attended the Mine and exercised right of entry on a significant number of 
occasions, Mr Brunker has been approached by employees with concerns, including that the 
remuneration was insufficient, flights to and from the Mine, and that they had no certainty 
relating to their future employment. Mr Brunker’s view was that employees were eager to have 
an enterprise agreement and that was reflected by their signing of the petition. Mr Brunker also 
said that there were no statements made to him by employees suggesting satisfaction with their 
terms and conditions. Instead, a number of workers raised the issue of bargaining and wanting 
to negotiate. Questions were also directed at why MacKellar Mining was dragging its feet in 
relation to bargaining for an agreement.








[2022] FWC 690

18

[79] Regarding Mr MacKellar’s evidence about flights, Mr Brunker stated that while the 
Company may charter the flights, that does not mean they could not attempt to have employees 
pay for them. Indeed, Mr Brunker understood that similar things have happened elsewhere on 
other sites where workers were required to pay for part or all of their travel on charter flights.  
Mr Brunker also stated that he does not believe that the newer employment contracts include 
an explicit term providing that employee will not have to pay for flights, or that MacKellar will 
pay for them. While the Schedule to the new contract provides an “embarkation point” of 
Rockhampton or Townsville, the contract has clearly changed from the previous version in a 
manner which excludes the following term that was in the contract previously:

“Transport to and from site will be provided from a designated pickup location at either Rockhampton or 
Townsville and in accordance with our policy.

Travel to and from the above pickup locations will be at your own expense.”

[80] Mr Brunker referred to Ms Ritter’s evidence that he had sent her an email, copied to Mr 
Zillman, on 31 May 2021 advising that he had received a number of phone calls from employees 
about pay rates in their new contracts. In that email he requested information on the relevant 
calculations and a response to other questions about the contracts.

[81] Also on 31 May 2021 Mr Brunker sent a further email to Ms Ritter noting that there was 
no reference to flights being paid for under the heading “other benefits” in the new contracts. 
In the response, Ms Ritter referred to clause 9 of the employment contracts. Mr Brunker noted 
that Ms Ritter’s response indicated that all the relevant contracts were the same. Mr Brunker 
responded to Ms Ritter again by email on 31 May 2021 noting that he had read clause 9 but that 
it did not say that the flights were a benefit, and it did not clearly spell out that the flights would 
be paid for by MacKellar. On the same day Ms Ritter provided a further response referring to 
clause 12 and clause 9.2 and to MacKellar’s travel policy. Ms Ritter stated that the wording 
was not new, and it was the same in the old contracts.  Mr Brunker exchanged further emails 
with Ms Ritter, including a request for the relevant travel policy, which he contends that Ms 
Ritter refused to provide. Mr Brunker also sent an email to Ms Ritter with the following request:

“…can you provide the section that states Travel is at the cost of MacKellar and explain what guarantee 
do the employees have that MacKellar won’t unilaterally change the Policy?”

[82] Additionally, Mr Brunker discussed the matter of travel arrangements with Ms Ritter at 
a meeting he attended via video link with on 13 July 2021. Mr Zillman was also present. Mr 
Brunker stated that the main purpose of the meeting was to discuss what the potentially 
agreeable terms and conditions for an enterprise agreement might look like. MacKellar Mining 
initiated that meeting and the meeting involved discussion of the views of the CFMMEU and 
the Company as to the content of any enterprise agreement. It was not simply a matter of 
discussing the CFMMEU’s expectations and Mr Brunker made clear that such discussions were 
absolutely subject to any claims that might come from the workers at the Mine.

[83] Mr Brunker recalled that Ms Ritter made a statement about flights being something that 
they were in negotiations about with Bravus. The statement was made in the context of 
discussions about what the CFMMEU would likely be seeking to be included in any enterprise 
agreement. Mr Brunker expressed his view that flights should be included.








[2022] FWC 690

19

 
[84] Mr Brunker disputed Ms Ritter’s evidence that he denied meeting or having discussions 
with her. Further, Mr Brunker maintained that consistent with discussions he held with various 
employees, MacKellar Mining refused to provide him with information relating to the 
calculation of wages and entitlements. Mr Brunker agreed that Ms Ritter did not say that 
MacKellar was planning to remove the travel benefit, and said that he did not say this to 
employees. Mr Brunker said that he simply raised the possibility that they might, and also 
having such an entitlement in an enterprise agreement would be more secure. 

[85] Regarding Mr Williams’ evidence, Mr Brunker recalled seeing Mr Williams in the 
Production Crib Room on 17 July 2021 but not the precise time, likely after a number of other 
workers were already in the room.  Mr Brunker also disputed various aspects of Mr Williams’ 
evidence and in particular said that it was Mr Williams who engaged with him and said words 
to the effect of, “what’s this shit about”. Mr Brunker explained to Mr Williams that it was a 
petition and how it would be used to try and negotiate an agreement. Mr Williams replied to 
the effect of “I negotiate my own contract”.  Mr Brunker recalled that at one point Mr Williams 
appeared to read the petition and that the exchange with Mr Williams was “pretty short”. 

[86] Mr Brunker stated that after observing Mr Williams’ mannerisms, he appeared to be 
aggressive from the beginning of their brief exchange. In accordance with Mr Brunker’s 
training in organising he knew that there is little point in engaging with someone like Mr 
Williams if they are not receptive initially and that it better just to end the exchange and not 
escalate the tension. Mr Brunker did not continue the conversation with Mr Williams and 
recalled that other employees sitting around him were shaking their heads with one employee 
saying words to the effect of: “don’t worry about that dickhead”.

[87] Mr Brunker denied that he said anything to suggest the CFMMEU would get employees 
more money as any sort of certainty. According to Mr Brunker, the prospect of better terms and 
conditions was the subject of discussion, but he never put it in terms of a certain outcome. Mr 
Brunker noted that in his experience he has learnt not to overcommit or give false hope as doing 
so is counterproductive to organising attempts. Mr Brunker also denied telling employees that 
they should sign the petition so the CFMMEU could get them their own EBA and more money, 
as alleged by Mr Williams. When discussing enterprise agreements with workers, Mr Brunker 
said that he is always clear that it is not him or the CFMMEU that ultimately decides what will 
be in an agreement, and that they will need to be involved. Mr Brunker provided the example 
of a line that he often uses being: “it is not fat guts Bunker’s EA, it is yours and you must be 
involved”. Regarding the statements that Mr Williams alleges that Mr Brunker made to 
employees in the crib room, Mr Brunker stated as follows:

(a) He did not say the words “[MacKellar] are going to take your flights and make you 
pay for your own flights because they’re not in your contract”

(b) He did not say the words “You’ll lose your flights and they will make you pay to go 
to work”. Mr Brunker admits he said that there was no guarantee of the flights in the 
future, saying words to the effect of “it is possible they will make you pay for flights 
if it is not in your contract”. Mr Brunker also explained the emails between himself 
and Ms Ritter and the comment she made about MacKellar’s negotiations with 
Bravus








[2022] FWC 690

20

(c) He does not accept saying the exact words described by Mr Williams regarding “the 
good people at Clermont” however agreed that he said words to a similar effect. 
CFMMEU members at Clermont had recently contacted him and reported that they 
had to pay part of the flight costs which they didn’t previously have to.

(d) He did not say the words “they shouldn’t have taken the 15% night shift allowance 
off you. They had no right”. Instead, the words he used to best of his recollection 
were to the effect of: “the 15% rolled into the agreement is a slight benefit”. He also 
read out figures that had been prepared in comparison to the Award rates and said 
words to the effect that “that will also benefit your super”. 

(e) He did not say the words “I’ve challenged Sunshine Coast and they won’t talk”. He 
maintained that he never said that MacKellar would not talk to him. He did recall 
explaining at various times during the discussions while exercising his right of entry, 
that flights should be guaranteed in an enterprise agreement. 

(f) He did not say the words “I’ve been trying to talk to Sunshine Coast and they don’t 
want anything to do with me”. He noted MacKellar had spoken to him, including the 
video conference with Mr Ritter and Mr Zillman. 

(g) He did explain to employees that MacKellar had refused to provide information on 
pay calculations, because that was true. Mr Brunker explained he was specifically 
referring to pay calculations. 

[88] Mr Brunker accepted that he did mention Ms Ritter during his discussions. Mr Brunker 
explained that the CFMMEU was trying to get information on pay calculations however those 
requests were being refused. He maintained that he did not say that Ms Ritter and MacKellar 
Mining had decided to remove flight entitlements. However, he did talk about the difference 
between the words in the two versions of the individual contracts and the possibility that 
MacKellar Mining might decide not to pay for flights, including examples of other places where 
similar things had happened. Mr Brunker believed it was clear to employees that MacKellar 
Mining had not decided to remove flights already. He did not suggest that the Company had 
made such a decision and did not say words indicating that. Mr Brunker did talk about the 
possibility that that might occur and the benefit of an enterprise agreement term which would 
ensure flights were locked in. 

[89] Mr Brunker denied saying the words, “the good people of Clermont” as alleged by Mr 
Williams. He did explain that at Clermont some workers were only being paid an allowance 
towards flights and that they were being bused out to Clermont from Emerald.  Further, Mr 
Brunker denied saying words to the effect that MacKellar had taken the nightshift allowance 
off the workers. Mr Brunker did speak about the allowance being rolled into the rate, explained 
that the rate was close to the Award and possibly below it given increases to the Award, that 
the rates of pay were close to operation services, and that rates of pay might be improved if an 
enterprise agreement was bargained.

[90] In response to Mr Williams’ evidence that other employees may have been misled by 
Mr Brunker’s statements, Mr Brunker stated that he observed no support from other workers to 








[2022] FWC 690

21

any statements made by Mr Williams. Mr Brunker recalled that Mr Williams was only in the 
crib room for approximately 10 to 15 minutes.  Mr Brunker agreed with Mr Williams that most 
of the employees in the crib room signed the petition. Mr Brunker’s experience was that they 
were eager to sign it, some asked further questions such as “what does it mean by used as 
evidence?” and “will management see our names?” after reading the preamble. Mr Brunker’s 
view was that there were no signs that anyone did not understand what they were signing. 

[91] Regarding the evidence of Ms Jozsef, Mr Brunker stated that he could not specifically 
recall meeting Ms Jozsef and it was unlikely he had met her during previous right of entry visits 
given her short period of service at the Mine. Mr Brunker agreed with Ms Jozsef that on 17 July 
2021, there were approximately 25 workers in the crib room, at least during his presence and 
that it was quite possible that he was not talking when she arrived in the room. 

[92] Mr Brunker maintained that at no time did he observe any worker forcing anyone else 
to sign the petition or acting in a manner he thought was inappropriate. Mr Brunker and some 
workers passed the petition around and encouraged people to sign it. Mr Brunker does not 
accept that there was any behaviour that was inappropriate or that anyone was put in a position 
where they had to sign it under duress. Nobody was threatened or anything of that nature. Mr 
Brunker denies saying the words, “sign it, we’ve all signed it”.  Mr Brunker referred to Ms 
Jozsef’s statement that once most people in the room had signed the piece of paper, Mr Brunker 
started speaking. Mr Brunker stated that he spoke at various times during the visit and did not 
wait until the end to speak. 

[93] Mr Brunker stated that at various times during the four relevant right of entry visits, 
employees asked him questions about the petition. His general experience was that most did 
not and that they appeared to read and sign the petition and had no issue understanding it. Many 
were very keen to sign it. Some others read it and declined to sign the petition. There were a 
number across the crews who initially declined to sign the petition saying that they were worried 
about retribution and being identified to MacKellar Mining after having read the reference to it 
being used as evidence in the preamble. Many of those people ended up signing the petition 
when he explained that the CFMMEU’s intention was to try and keep the names from being 
provided other than to the Commission. 

[94] Further, Mr Brunker stated that the method he generally used to pass the petition around 
was that he had two clip boards and passed each to people in the crib room. He then left it for 
them to pass the clip boards around. From time to time, he would collect the clip boards and 
offer them to others in the room. Mr Brunker said that he most definitely did not just talk about 
flights and wages, and he expressly talked about the petition and it being for the purpose of 
trying to get MacKellar Mining to bargain. Mr Brunker also often noted that MacKellar Mining 
had so far refused to bargain for an enterprise agreement. 

[95] Mr Brunker denied that he said that the petition was about wages and flights but 
accepted that he did speak about those issues. Further, Mr Brunker stated that at all times he 
welcomed any questions that workers had. Mr Brunker explained that a big part of his job is 
talking to workers, listening to them, and trying to answer any questions they have. He answered 
questions from workers at various times and engaged with them. Mr Brunker does not believe 
that at any time he acted in a way that discouraged them from doing that, or in a way that 
unfairly pressured them to sign the petition.








[2022] FWC 690

22

[96] Mr Brunker does not agree that he said the words alleged by Ms Jozsef regarding a new 
contract and a good possibility that flights will not be paid for. Mr Brunker noted that many 
employees that he had spoken to had recently been issued contracts. Mr Brunker stated that he 
did talk about the changes in wording between the older and more recent contracts. Mr Brunker 
also spoke about the comments made by Ms Ritter to the effect that MacKellar Mining was still 
in discussions with Bravus, including about travel arrangements. Mr Brunker noted that that 
this would only have occurred on the visit on 17 July, as the meeting he had with Ms Ritter and 
Mr Zillman was on 13 July, by which time, the petition had already been signed by a majority, 
although Mr Brunker was unsure of this at the time,

[97] Mr Brunker agreed with Ms Jozsef that some of the workers were angry about various 
issues, including the recent contracts, flights, and pay rates. Some expressed the view that they 
were unhappy with the wording changes about travel when he went through the clauses in the 
old and new contracts with them. Mr Brunker referred to Ms Jozsef’s statement that she could 
not recall if he said anything about an enterprise agreement or bargaining and confirmed that 
he did not fact do so, including reading the petition out loud. Mr Brunker spoke about the 
potential benefits of an enterprise agreement in relation to both pay rates and flights. Mr 
Brunker said that he had no reason to doubt that Ms Jozsef was in the crib room, but he was 
unsure how long, or precisely when, she would have been there. Mr Brunker accepted that he 
did not read the words in the petition to each employee separately. He believed that the words 
the petition were clear, that those signing it were perfectly able to make a decision whether they 
wanted to sign it or not, and that anyone that might have wanted to ask questions had the 
opportunity to do that.

[98] Mr Brunker said that he is sorry that Ms Jozsef feels she was pressured into signing the 
petition. However, Mr Brunker did not observe anything that suggested any undue pressure was 
applied to anyone to sign it.  Mr Brunker believes that the workers present were perfectly able 
to make a decision on whether or not to sign the petition and that the words in the petition were 
very clear and that all of those who signed the petition, or were considering whether to do so, 
had the opportunity to read it. 

[99] Mr Brunker has spoken to a number of employees since 17 July, including during a 
recent right of entry visit. Aside from his interaction with Mr Williams, no other employees 
have suggested to Mr Brunker that they wanted to remove their names from the petition, that 
they did not understand its purpose, or anything of that nature. In fact, a number of employees 
have asked him about when enterprise agreement bargaining might take place, and about the 
application to the Commission. Mr Brunker said that he has had to explain to a number of the 
workers that MacKellar Mining is still refusing to bargain despite a significant majority signing 
the petition. Nobody he has spoken to said or did anything to suggest that they were surprised 
or did not understand what the petition was being used for. 

[100] Mr Brunker was unaware as to the apparent concerns or complaint by Ms Jozsef, until 
he read her statement in these proceedings. At no time was he contacted by representatives of 
MacKellar expressing concern about his conduct during the right of entry visits, or statements 
he was making.  Mr Brunker believes that the clear majority of relevant employees want to 
bargain for an enterprise agreement and that this is evidenced by the petition.  Mr Bunker also  
believes that the petition sets out very clearly the basis on which relevant employees signed the 








[2022] FWC 690

23

petition. Mr Brunker’s view was that the process of obtaining signatures on the petition was 
conducted appropriately and without it being presented in a way that was misleading or in a 
way that put any form of unfair pressure on the workers to sign the petition. Mr Brunker had  
primary responsibility for collecting the signatures on the petition and believes that the 
Commission can be satisfied that a majority of the relevant employees want to bargain for an 
enterprise agreement. 

[101] Under cross-examination, Mr Brunker agreed that the Carmichael Project is a large new 
project with a large number of coal mine workers eligible to join the CFMMEU.  Mr Brunker 
also agreed that the Project is a big step-up for MacKellar Mining and that the he and the Union 
have not had a strong connection with the Company to date.  Further, Mr Brunker agreed that 
part of his role is to look after Carmichael and his objective is to persuade employees of the 
Company to join the Union.  Mr Brunker has given priority to visiting the Project and has been 
accompanied from time to time by Mr Smyth and other Union officials.   Mr Brunker agreed 
that the trip and from the site is three hours each way and that is a large investment of his time 
and that the Union’s objective is to organise the workforce and get an enterprise agreement in 
place.  Mr Brunker added that a lot of members of the Union have contacted him and requested 
that he organise at the site.

[102] Mr Brunker agreed that he had stated that MacKellar Mining refused to provide him 
with information and that he advised employees of this.  In response to the proposition that the 
Company had not refused to provide information but had simply sought details of the employees 
he was representing, Mr Brunker said that he did not provide that information out of fear of 
retribution against the employees.  Mr Brunker agreed that he had “quite possibly” told 
employees that if they provided information the Company would fire them and in response to 
the proposition that this was “a disgraceful lie” Mr Brunker said that labour hire or contract 
employees know that if they put their hands up they risk being “shot”.   Mr Brunker maintained 
that this was his experience with labour hire and contractor employees but accepted that he had 
not previously dealt with MacKellar Mining.  Mr Brunker accepted that his statement that the 
Company had refused to provide him with information was untrue and that what the Company 
had asked was that he establish his authority to receive information.  

[103] Mr Brunker also accepted that he had raised issues such as wages, bonuses, overtime 
and changes to employees’ contracts which had not been raised by employees and that he had 
raised these issues in the context of them being matters that could be fixed in an enterprise 
agreement. Mr Brunker agreed that he had brought other senior officials of the CFMMEU to 
the site to assist with the petition, including Mr Smythe, but maintained that this was not a show 
of strength but simply because he had asked for volunteers to assist at the site.  Mr Brunker 
rejected the proposition that employees he spoke to were long term employees of MacKellar 
Mining and not experienced with petitions and enterprise bargaining, maintaining that most of 
the employees came from other labour hire or contract mining companies and were familiar 
with these processes.

[104] Mr Brunker accepted that employees would see him as being experienced in industrial 
relations and would give a lot of weight to what he said.  Mr Brunker agreed that it might not 
have been easy for some employees to refuse to sign the petition but maintained that there were 
employees who refused and some who went home and discussed it with partners.  Mr Brunker 
did not simply put the petition on the table and let people sign it if they wanted to because of 








[2022] FWC 690

24

issues associated with chain of custody and ensuring that only employees of MacKellar Mining 
signed it. While the petition may have been at the end of a crib room table, Union officials were 
in the room at the time. Employees also handed the petition around between themselves to 
circulate it around a table, but employees were not given autonomy to carry the petition around 
and get other people to sign it.  Mr Brunker accepted that Ms Jozsef’s name should not be on 
the petition and that she signed the petition without knowing what it was.  Mr Brunker said that 
he struggled with that evidence but accepted that this was Ms Jozsef’s statement.  Mr Brunker 
also said that he did not understand how someone could sign something that they did not 
understand.

[105] In response to a question about why he was telling employees that there was a risk that 
they would lose their flights, Mr Brunker said that he never said that they would lose flights, 
but he had two mine sites where flights were not in enterprise agreements or in contracts and 
when there was a downturn the Company told employees that they would be paid a subsidy and 
the employees would have to pay for their own flights.  In response to the proposition that the 
employees he was referring to did not have their entitlement to flights in their contracts and that 
MacKellar Mining employees were in a different position, Mr Brunker said that their new 
contracts did not provide for flights.  Mr Brunker also said that he was using this as an example 
of why it is important to have entitlements in enterprise agreements to secure them.  Mr Brunker 
denied that he said that there was a new contract coming and that there was a really good 
possibility that employees would lose their flights.  Mr Brunker accepted that he intended those 
employees of MacKellar Mining he spoke to would believe there was a risk that they would 
lose their flight benefits. In response to the proposition that it would be impossible for 
employees to access the site if charter flights were removed, Mr Brunker said that there was a 
possibility that employees could be required to drive in and out from Charters Towers or 
Emerald and maintained that subcontractors already make their own way to site from these and 
other regional centres.

[106] Mr Brunker accepted that for employees to be told that their travel arrangements were 
at risk would be very confronting but denied that this was his intention.  Mr Brunker also said 
that concern about losing payment for Christmas Day and Boxing Day and being paid award 
rates, was more confronting.  Mr Brunker agreed that he was telling employees these things 
because he wanted them to sign a petition and agree to enterprise bargaining and to give 
employees an example of what needed to be fixed in their enterprise agreement to lock in their 
terms and conditions of employment.  

[107] Mr Brunker maintained that provisions about flights had been left out of new 
employment contracts given to employees.  When shown the old and new contracts during 
cross-examination, Mr Brunker accepted that the new contract contains the same provisions 
about flights as are found in the old contract and that he had shown employees a schedule 
containing only part of the provision in the new contract.  In this regard, clause 9 of the new 
contract provides as follows:

“9. Embarkation Point and Transport

9.1 Your designated Embarkation Point is listed at Item 12 of the Schedule.

9.2 Transport to and from site will be provided from your designated Embarkation point in accordance 
with our policy.








[2022] FWC 690

25

9.3 Travel to and from the designated Embarkation Point pickup locations will be at your own expense.”
 
[108] Item 12 of the Schedule to the new contract designates embarkation points as Townsville 
and Rockhampton.19  Mr Brunker also accepted that when clause 19 of the contract is read with 
item 12 of the Schedule, the only difference is that embarkation points have been put into 
contract schedules specific to particular employees.  Other than that, Mr Brunker accepted that 
there is no change and that his view to the contrary was incorrect.  Mr Brunker rejected the 
proposition that he had deliberately misled employees even though he accepted that he had told 
them that the new contract was less favourable than the old contract in terms of flights.  Mr 
Brunker also denied that he was conducting a scare campaign about flights and maintained that 
he was using the Christmas Day/Boxing Day payment, award wages and air flights as examples 
of what needs to be fixed in negotiations for an enterprise agreement.

[109] Mr Brunker disagreed with the proposition that when the hourly Award rates are 
compared to the rates that MacKellar Mining employees are paid for a 7 day/7 night 12 hour 
shift even time roster, MacKellar Mining employees are paid well above the Award.  Mr 
Brunker maintained that he had undertaken an analysis to support his view but had not attached 
that analysis to his witness statement.  Mr Brunker also said that he was seeking salary spread 
sheets from the Company to assist him with his analysis but these had not been provided.  In 
response to the proposition that if he had really thought that employees such as truck drivers 
were being underpaid, he would have immediately done something about it, Mr Brunker said 
that he did not want to put an employee into the position of having to be identified.  Mr Brunker 
maintained that this would have been required to make an underpayment claim or to lodge a 
dispute with the Commission under the dispute resolution procedure in the Award.  Mr Brunker 
also referred to the fact that MacKellar Mining had made it clear that they wanted an individual 
to come forward before they would deal with his questions in relation to wages.  

[110] Mr Brunker was shown a Facebook post he made on 13 September 2021 in which he 
alleged that MacKellar Mining could not “keep people because they are paying below Award 
rate for truckies and there is no EA in place yet.  Fair Work Hearing on Tuesday regarding the 
EA.”20  Mr Brunker disputed that this is a scare campaign and maintained that he could work 
back on the basis of the employees’ hourly rate to determine whether they were being underpaid 
without knowing what their full salaries are.  Mr Brunker agreed that he had attended a meeting 
initiated by MacKellar Mining at which there had been a discussion about what the terms of an 
enterprise agreement might look like and that the Company had been courteous and responsive 
in its interactions with him.  Mr Brunker also agreed that it would not be fair or correct to 
suggest that the Company is not talking to him and maintained that he had never said that this 
was the case.

[111] In relation to Mr Williams’ evidence, Mr Brunker agreed that he told employees that if 
enterprise bargaining commenced, they would likely be better off.  Mr Brunker disagreed with 
Mr Williams’ evidence in respect of other matters and said that Mr Williams approached him, 
and with the assertion that he had not explained what he was asking Mr Williams to sign.  Mr 
Brunker agreed that he asked Mr Williams whether he wanted more money but denied that he 
stated that the Company was going to take flights off employees.  Mr Brunker accepted that he 
told employees there was a possibility that they were going to lose flights but maintained that 
employees were angry about a range of matters including the Company dragging the chain on 
enterprise bargaining and the Christmas Day/Boxing Day payment.  








[2022] FWC 690

26

[112] In response to the proposition that industrial action would come into play if enterprise 
bargaining commenced and MacKellar Mining did not agree with the Union’s proposals, Mr 
Brunker said that he has not used industrial action in enterprise bargaining for years and prefers 
to resolve things by having a conversation.  Mr Brunker also said that the Union would go back 
to workers and put another proposal and keep talking.  

[113] Mr Brunker agreed that it is generally better to have a positive relationship with an 
employer rather than a hostile one.  In response to the proposition that MacKellar Mining now 
believes, rightly or wrongly, that he has lied to its employees, Mr Brunker said he is unaware 
of this and is happy to go have a discussion with Mr MacKellar and go through salary 
spreadsheets and that if he is incorrect with his assessment about wages, to put out a joint letter 
to that effect.  In response to the proposition that he had told employees that travel was at risk 
when the Company’s Human Resources Superintendent made it clear that it was not, Mr 
Brunker maintained that he was told at a meeting on 13 July that travel had been taken out of 
the old contract and would be renegotiated with Bravus.   Mr Brunker said that he stated at that 
meeting that travel is one issue that the CFMMEU would seek to include in an enterprise 
agreement and in response he was informed that this issue was being renegotiated in the new 
contract with Bravus and the Company should know something in a few weeks.  Mr Brunker 
accepted that the Company would be dismayed and bewildered that he was telling its employees 
that they would lose a flight benefit when this was not the case.

[114] Mr Brunker did not accept that if MacKellar Mining was required to have a negotiation 
with the CFMMEU that it would be better to put things on a sounder basis by having a secret 
ballot of employees to ask what employees really think.  Mr Brunker maintained that the 
employees had signed a petition and voted in that way.  In response to the proposition that he 
could not object to a secret ballot if it would assist MacKellar Mining to be confident that 
employees want to bargain, Mr Brunker said that employees are already disenchanted about the 
delays in bargaining and a secret ballot would delay matters further.  Mr Brunker also disagreed 
with the proposition that unless a secret ballot was held the Company would always be 
concerned with the way that bargaining commenced.  In re-examination, Mr Brunker said he 
had not seen the new contract that he was shown in cross-examination.  in response to questions 
from me, Mr Brunker agreed that he had seen contracts with both higher and lower rates than 
the contract he was shown in cross-examination.  

Submissions 

MacKellar Mining

[115] MacKellar Mining does not dispute the fact that:

(a) A majority support determination application has been made;

(b) MacKellar Mining has not yet agreed to bargain, or initiated bargaining, for the 
proposed agreement; and

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








[2022] FWC 690

27

[116] MacKellar Mining submitted that the petition is not a reliable indication of employee 
preference.  While accepting that the petition is in appropriate terms and that the requisite 
number of employees have signed it, MacKellar’s position is that there is evidence that at least 
some of those signatures (it is impossible to ascertain how many) were obtained in a way which 
involved deceptive conduct and the application of inappropriate pressure to sign the petition in 
circumstances where the implications of doing so were not properly explained to the 
Employees. 

[117] MacKeller Mining submitted that the Act allows a majority to cause bargaining to 
commence even if a minority are firmly against it, however the Commission should be careful 
to ensure that indeed a majority is in favour. Otherwise, the rights of employees who do not 
want to bargain (which in this case may yet be a majority) may be unfairly affected. 

[118] MacKellar Mining contended that enterprise bargaining, whether successful or not, may 
have consequences for employees and therefore the task of ascertaining whether a majority 
genuinely wishes to bargain should be approached with vigour. Firstly, as a consequence of the 
good faith bargaining obligations, the employer may be restricted in how it can communicate 
and engage with its employees, including in relation to critical matters such as remuneration.21 
This has the capacity to disadvantage employees who prefer to progress those discussions 
individually. 

[119] Secondly, bargaining can lead to protected industrial action. It is true that the 
authorisation of industrial action also requires a majority of employees, however MacKellar 
Mining explained that industrial action can have a profound impact on employees who do not 
wish to participate. For example they can be locked out. The majority which makes that 
determination might be comprised of a different employee cohort than those considering the 
issue of whether bargaining should commence in the first place. 

[120] Thirdly, MacKellar Mining submitted that an enterprise agreement may be proposed in 
terms quite unsuitable to employees, however their wishes can be overwhelmed by a majority 
vote (of the then cohort) in favour of the proposal. They may then be bound by terms and 
conditions they do not want, including obligations which are enforceable by civil penalties 
under the FW Act. 

[121] The CFMMEU as the relevant bargaining representative, bears the onus of proving “how 
this particular petition came into existence and why it can be relied on in deciding whether a 
majority want to bargain.”22 According to MacKellar Mining, the views of bargaining 
representative are irrelevant, and while it can be accepted that a union has a legitimate role in 
advising its members in relation to the benefits of enterprise bargaining, and (as a potential 
bargaining representative) a role in aggregating the collective wishes of the workforce as a 
whole, it must do so in a way which results in reliable information about the genuine, and 
properly informed wishes of the employees. 

[122] MacKellar Mining submitted that the use of petitions is not specifically sanctioned by 
the Act Act, however the Commission has accepted evidence in the form of a petition when 
there is no reason to suspect that it is other than a genuine reflection of the views of a majority 
of the relevant employees. Petitions can be other than a genuine reflection of views of those 
who sign, depending on how the signatures were gained, whether employees understood what 








[2022] FWC 690

28

they were being asked to sign and whether there are other reasons to doubt that a signature 
represents the genuine wishes of all of those who signed it. According to MacKellar a key 
question is whether the employees understood that the purpose of the petition is to commence 
bargaining and whether the petition has been obtained in a way which involved deceptive 
conduct.23

[123] In this regard, reference was made to the decision of O’Callaghan SDP in Automotive, 
Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A 
Cadillac Printing24 where it was concluded that it was conceivable that there may be 
circumstances where a petition could not be relied upon if, for example, there was evidence the 
petition had been “falsely derived” or where signatures were achieved “by duress”.

[124] MacKellar Mining further referred to the decision of Commissioner Lee in Australian 
Manufacturing Workers’ Union (AMWU) v Edlyn Foods Pty Ltd25 where circumstances where 
it would not be proper to accept a petition were discussed, including where there was “duress 
or coercion of employees”, or if the proposition put to employees was in some way confusing 
or not clear.  MacKellar Mining also referred to the decision in The Australian Workers’ Union 
v The Austral Brick Co Pty Ltd T/A Austral Bricks26, which held that the “lack of a full 
understanding of the context for the petition” was a relevant consideration. 

[125] In the present case MacKellar Mining submitted that there is evidence suggesting the 
very real possibility that the petition is not a reliable indication of the views of at least some of 
those who signed it. MacKellar Mining relied on the evidence of Mr Williams, who stated that 
Mr Brunker told employees:
 

(a) to sign the petition so that the CFMMEU could get them their own EBA and more 
money;

(b) that MacKellar Mining had decided to remove employees' flight entitlements but 
had not yet told employees;

(c) that MacKellar had no right to take the 15% night shift allowance off employees; 
and 

(d) that he tried to get more money for employees but MacKellar refused to deal with 
the CFMMEU and that MacKellar refused to send documents to him

[126] MacKellar Mining submitted that Mr Brunker’s statements, at least relating to (b) and 
(d) were false. The statements about “more money” and reference (with no context) to the shift 
allowance were, charitably, an incomplete and distorted explanation of the implications of 
commencing enterprise bargaining.  MacKellar Mining also submitted that while Mr Williams 
personally did not believe what Mr Brunker told the employees (and did not sign the petition), 
he has provided evidence that other employees were listening to him and may have been misled 
by Mr Brunker’s false statements. Mr Williams’ view was that most of the employees who were 
in the crib room at the time had signed the petition. 

[127] MacKellar Mining also referred to the evidence of Ms Jozsef that:








[2022] FWC 690

29

(a) she felt pressured to sign a document, and that she did not know what the document 
was;

(b) the document was not explained to employees by Mr Brunker until after all 
employees in the crib room had signed it; and 

(c) Mr Brunker told employees in the crib room that MacKellar Mining would be 
making employees pay for their own charter flights.

[128] While Ms Jozsef personally did not believe that the Company is going to remove 
employees’ flight entitlements, she provides evidence that there were at least some employees 
who may have been misled by Mr Brunker’s false statement, because a few employees were 
angry and made comments to the effect that they would not work at the Mine if they had to pay 
for their own flights. 

[129] MacKellar Mining submitted that it is not true that it intends to or has decided to remove 
the flight entitlements from any employees who work at the Mine. No intention to remove 
employees’ flight entitlements has ever been communicated to Mr Brunker or any CFMMEU 
representative. It is also untrue that MacKellar had refused to deal with Mr Brunker or the 
CFMMEU. 

[130] In oral submissions, in response to concerns raised by the CFMMEU that (apart from 
the two witnesses called by MacKellar Mining) there is no evidence that anybody had their will 
overborne or that their decision to sign the petition was impacted by misleading information, it 
was asserted that this is in fact the problem with the petition. MacKeller Mining cannot cross-
examine the petition. The suggestion that MacKeller Mining should have gone amongst its 
workforce and found more examples of people who were prepared to explain why they signed 
the petition is “ghoulish”, particularly given MacKellar Mining did not know who signed the 
petition. 

[131] In light of these circumstances, MacKellar Mining submitted that the Commission 
cannot be satisfied that employees who signed the petition knew what they were signing or 
genuinely signed the petition free from any coercion or duress or misleading and false 
information. MacKellar Mining submitted that it is not reasonable in all the circumstances to 
make the majority support determination. The Company’s position is that to do so would reward 
inappropriate, deceptive and misleading conduct on behalf of the bargaining representative 
which, as can be understood, does prefer to commence bargaining and sees collateral advantage 
to itself (as a member based organisation relying on membership fees) in doing so. 

[132] MacKellar Mining also submitted that if the Commission were to make the majority 
support determination it would send a message to the Company, being new to the process of 
regulated industrial relations under the Act, and employees, that tactics of this kind will be 
condoned and recognised by the Commission. It would also send a message to MacKellar 
Mining that union officials can come into the employees’ lunch room, make a welter of false 
assertions, to campaign for employees to sign a petition which the Union wants to achieve as 
its own preferred industrial outcome, but many of the employees and the employer may not 
want.  








[2022] FWC 690

30

[133] Mackellar Mining submitted that the CFMMEU was plainly and unashamedly 
determined to achieve a particular result, and in this case, stepped over the boundaries of what 
is appropriate. Further, it was submitted that Mr MacKellar may have been able to wander 
amongst employees with all of the authority of his position and tell employees that their 
conditions and entitlements were fine and ask employees to sign a petition that they do not want 
to bargain. The Commission would not accept such a petition if there was the slightest 
suggestion that the employer used its position to apply any kind of pressure, indirect or by 
inference to the process. The CFMMEU has the same conflict of interest, as it has a corporate 
interest in the declaration being granted, which is different and disparate from the interests of 
employees

[134] MacKellar Mining submitted that given the petition is not a reliable indication of 
employee preference, the petition should be set aside.  If the application is pressed, or another 
one is made, it is too late to rely on informal and non-transparent methods of ascertaining the 
views of the employees. MacKellar Mining submitted that instead, it is appropriate for an 
alternate means of establishing the views of the employees to be implemented,27 for example, 
a secret ballot conducted by the AEC. 

[135] The Commission may work out whether a majority of employees want to bargain using 
any method the Commission considers to be appropriate. “Appropriate” is a word of generality 
and broad meaning. If industrial participants have a properly justified concern that the 
methodology proposed by the union is unreliable or tainted, as is the case in the present matter, 
then for it to be accepted by the Commission, properly regarded as the neutral umpire, despite 
these concerns, would tend to be corrosive to the cooperative relationships which the is 
designed to promote.

[136] If the petition was accepted as the appropriate methodology in these particular factual 
circumstances, it would lead to resentment and suspicion, in circumstances where the adoption 
of a different methodology might avoid that risk entirely.  MacKellar Mining advised that it 
would cooperate in the development of an information statement, to be approved by the 
Commission, fairly and comprehensively explaining the consequences of the commencement 
of bargaining, which the employees could read and consider free from any inappropriate 
pressure or influence from either party to the application. 

CFMMEU
 
[137] The CFMMEU submitted that the Commission should be satisfied of the matters 
specified at s.237(2) of the Act because:

(a) It is clear that a majority of employees who are employed by MacKellar Mining, as 
specified by ss 237(2)(a), want to bargain as evidenced by the statement of Mr Shane 
Brunker and a very clear and unambiguous petition that was signed by 135 of 189 
relevant employees (over 70%);

(b) The Commission can be satisfied of the matters at ss 237(2)(b) and (c); and 

(c) Having regard to ss 237(2)(d), it is reasonable in all the circumstances to make the 
determination.








[2022] FWC 690

31

[138] The CFMMEU also submitted that the objections raised by MacKellar Mining have no 
merit and that the Commission should make a majority support determination as sought by the 
CFMMEU.  Regarding s.237(2)(a) of the Act, the CFMMEU referred to the petition that it 
compiled of relevant employees that has been provided to the Commission. The CFMMEU 
submitted that there can be no dispute that 135 of 189 relevant employees signed the petition. 
The petition, and each page of the petition signed by the relevant employees, contains a clear, 
unambiguous, and appropriate statement of its purpose.  

[139] The CFMMEU submitted that not only is the petition in clear and unambiguous terms, 
it has a bold heading on each page which clearly identifies its purpose. The CFMMEU’s 
position is that in the present case there is no need for a ballot and that the Commission can be 
satisfied that the determination sought should be made and that a majority of the relevant 
employees want to bargain. The CFMMEU contended that the evidence supporting their 
position is in fact overwhelming. 

[140] The petition is an entirely appropriate basis on which the FWC can be satisfied as to the 
will of the majority of the relevant employees.28 Over 70% of relevant employees signed the 
petition, which clearly records the purpose of the petition and confirms the will of those 
employees. It also contains words that those signing acknowledge how the petition would be 
used.  The CFMMEU noted that MacKellar Mining has refused to accept the will of the relevant 
employees despite their very clear message that they want to bargain for an enterprise 
agreement. 

[141] The CFMMEU submitted that a majority of the relevant employees at the Mine had 
signed the petition prior to 17 July 2021. On that basis, and having regard to the evidence of 
Mr Brunker regarding his previous right of entry visits and those conducted by other CFMMEU 
representatives, the Commission can be satisfied that a majority of the employees want to 
bargain (regardless of whether it might otherwise accept the submissions and evidence of the 
respondent).

[142] The CFMMEU relied on Mr Brunker’s evidence, in addition to the petition itself, as 
establishing a proper basis on which the Commission can be satisfied that a majority of the 
relevant employees want to bargain. Notably:

(a) The petition itself is drafted in a manner that is unquestionably clear.

(b) Mr Brunker, and where applicable other representatives of the CFMMEU, explained 
the purpose of the petition to employees.

(c) Mr Brunker and the CFMMEU maintained appropriate custody of the petition.

(d) There is significant evidence of employees being informed of the purpose of the 
petition, notwithstanding the already clear and unambiguous words contained in the 
petition.

[143] The CFMMEU’s view is that the objections raised by MacKellar Mining are without 
merit and do not disclose a reasonable or proper basis on which the Commission should not be 








[2022] FWC 690

32

satisfied that a majority support determination should be made. The CFMMEU submitted that 
the authorities relied upon by MacKellar Mining merely contain obiter statements as to the 
possible basis on which the Commission might not be satisfied. Even the statements of the 
Company’s witnesses do not establish any credible basis on which the will of those who signed 
the petition could be seriously questioned.

[144] The CFMMEU acknowledged that there might be circumstances in which the 
Commission would not be satisfied having regard to other communications made to employees, 
however this is clearly not such a case. There is no reliable evidence suggesting any real form 
of duress or misleading conduct that could reasonably be said to cast real doubt upon the will 
of the employees who signed the petition.  Despite the various submissions made by MacKellar 
Mining, the totality of the evidence supporting the objection is as follows:

(a) One employee, out of 135 employees that signed the petition, did so without reading 
it.

(b) One employee who says he did not read the petition, chose not to sign it.

(c) Despite having the opportunity to do so, MacKellar Mining raised no concerns with 
Mr Brunker about its purported concerns as to the right of entry conducted on 17 
July 2021

(d) The evidence of witnesses for the Company that is said to support the complaints 
and/or objections of MacKellar as to the reliability of the petition relate only to the 
right of entry visit conducted on 17 July 2021, and only in the production crib room. 

[145] The CFMMEU highlighted the fact that Mr Brunker denies the vast majority of the 
statements alleged to be attributable to him. However, even if all the assertions made by 
MacKellar’s witness were correct, which they are not, they disclose no basis on which the 
petition can be said to be an unreliable reflection as to the will of the majority of the relevant 
employees.

[146] The words on the petition are so clear and unambiguous that, even having regard to the 
speculative heresay evidence as to the will of employees not called by MacKellar Mining to 
give evidence, the Commission can be satisfied that a majority of the relevant employees want 
to bargain. According to the CFMMEU, MacKellar Mining is attempting to delay and avoid 
the commencement of bargaining contrary to the clear will of the relevant employees. In effect, 
the Company’s submission is that its employees are incapable of reading and understanding the 
petition. 

[147] The CFMMEU contended that the evidence of witnesses for MacKellar Mining should 
be treated with extreme caution. Firstly, the CFMMEU submitted that it is apparent that 
MacKellar Mining has, following attempts by the CFMMEU to have the Company agree to 
commence bargaining, given reasons as to why it would not commence bargaining, that were, 
at best, incomplete.  Notably, MacKellar Mining did not raise any concerns regarding the ROE 
that occurred on 17 July 2021 when it provided a response to the CFMMEU on 29 July 2021. 








[2022] FWC 690

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[148] The CFMMEU submitted that the statements filed by MacKellar Mining contain no 
suggestion or evidence as to real alleged impropriety, misleading conduct, deceit, undue 
pressure or similar, other than on 17 July 2021. Whilst noting that any such allegations are, in 
the CFMMEU’s submission, totally misconceived and factually incorrect, it is the case that a 
majority of the relevant employees had signed the petition prior to 17 July 2021. This is 
confirmed by the evidence of Mr Brunker that 37 workers signed the petition on 17 July 2021.

[149] As noted previously, the petition includes the names and signatures of 135 or 189 
relevant employees as determined by the Commission having regard to the petition provided 
by the CFMMEU and the list of employees provided by MacKellar. A majority of the total 
relevant employees would be 95. When 37 is subtracted from 135, 98 workers had signed the 
petition prior to 17 July 2021. That is a majority of the relevant employees (notwithstanding 
the applicant asserts that there is no proper basis to the allegations relating to 17 July 2021). 

[150] Regarding s.237(2)(d) of the Act, the CFMMEU submitted that it is reasonable in all 
the circumstances to make the determination. Mr Bunker’s statement is very clear as to the 
manner in which the petition was collected. There was no inappropriate, deceptive, or 
misleading conduct by the CFMMEU or Mr Brunker. The CFMMEU contended that even the 
statements filed by MacKellar Mining do not support the contentions made by the Company as 
to purported deception or inappropriate conduct. At best, they disclose disagreement or the 
holding of different opinions.

[151] The CFMMEU also submitted that there is nothing improper or misleading about Mr 
Brunker expressing the views he holds as to matters impacting the employment of the relevant 
employees, nor in talking about such issues at the same time as seeking signatures to a petition. 
Mr Brunker did not make statements that were untrue, and even if that were the case, the 
respondent’s position presupposes that workers are incapable of making their own decisions on 
the truth or otherwise of statement made.  The petition is clear and unambiguous. There is no 
evidence that any employee that signed the petition, aside from Ms Jozsef, did not understand 
its purpose.

[152] Finally, regarding the method that the Commission considers appropriate to work out 
whether a majority of employees want to bargain, the CFMMEU submitted that it is 
unnecessary for the AEC to be used to work out whether a majority of the relevant employees 
want to bargain. Not only is it wholly unnecessary given the petition and relevant evidence, it 
would also cause significant undue delay and would simply serve to indulge the efforts of 
MacKellar to avoid and delay bargaining. Whilst it has been entitled to refuse to bargain to date, 
the AEC should not be used to further the interests of MacKellar in avoiding bargaining given 
the clear evidence of majority support available to the Commission. 

Consideration 

Issues in dispute

[153] Section 237(1) of the Act provides that the Commission must make a determination if 
an application is made and it is satisfied of the matters set out in s. 237(2). In the present case, 
the CFMMEU has made an application for a majority support determination.  It is common 
ground that s. 237(2)(b) and (c) are satisfied.  MacKellar Mining has not agreed to bargain and 








[2022] FWC 690

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does not dispute that the group of employees that are the subject of the determination sought by 
the CFMMEU would be fairly chosen if the determination was made.

[154] The issues in dispute are whether a majority of the employees who are employed by the 
employer at a time determined by the Commission and who will be covered by the agreement, 
want to bargain, and whether it is reasonable in all the circumstances, to make the 
determination.  Signatures on the petition relied on by the CFMMEU to establish that a majority 
of employees want to bargain, were collected in July 2021.  The application was made on 3 
August 2021 and heard on 14 and 28 September 2021.  The decision was made on 10 January 
2022.  I was satisfied that at the date the matter was heard that a majority of employees wanted 
to bargain.  

[155] There was no evidence as to a significant increase or reduction in the numbers of 
employees who are employed by MacKellar Mining at the Carmichael Mine either before or 
after the petition was finalised or at or after the hearing.  No objection was raised by MacKellar 
Mining on this ground and the evidence was that the increase in the numbers of employees to 
undertake what is the Company’s largest contract to date, had already occurred when the 
petition was circulated, and the hearing was conducted.  

Approach to determining majority support

[156] I consider that the method of using a petition to work out whether a majority of 
employees want to bargain is an appropriate method in the present case.  As Deputy President 
Colman observed in National Union of Workers v Lovisa Pty Limited29, the broad discretion 
afforded to the Commission to use any method it considers appropriate, contemplates a wide 
variety of possibilities and clearly a vote is not required, as other provision in the Act mandate 
a vote and s. 237 does not.  The Deputy President in that case also observed that:

“Petitions seem to me to be one obvious way to demonstrate employee support for the purposes of s. 237.  
A petition can be collated quickly, simply and informally. It can provide a sound evidentiary basis for the 
Commission to assess whether there is majority support for bargaining.  It is in principle a method of 
assessment of majority support that accords with the object of Part 2 – 4 to provide a ‘simple, flexible 
and fair framework that enables collective bargaining in good faith’ (s. 171(a)), and the requirement in s. 
577 that the Commission perform its functions and exercise its powers in a manner that is quick and 
informal, avoiding unnecessary technicalities (s. 577(a) and (b).”30

[157] In the present case, the relevant employees are located at a mine site which is a six-hour 
round trip by road from Emerald.  The employees work an even time roster comprised of cycles 
of day and night shifts where they are at work for 7 days and have 7 days off.  To communicate 
with employees CFMMEU officials travel to the mine site by road and exercise right of entry.  
For purposes associated with ascertaining the support of employees for an enterprise agreement, 
CFMMEU officials may only hold discussions with employees during non-working time such 
as crib and meal breaks.  In those circumstances, a petition is an entirely reasonable method of 
establishing whether the majority of employees support bargaining.    

[158] Consistent with my usual practice where a union relies on a petition to establish majority 
support, I issued Directions requiring that the CFMMEU provide to the Commission an 
unredacted copy of the petition said to have been signed by employees.  I also requested that 
MacKellar Mining provide a list of names of all employees in the group described by the 
CFMMEU in the application. The CFMMEU provided a petition containing 135 signatures, 








[2022] FWC 690

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alongside handwritten names and addresses of the signatories and the date upon which the 
petition was signed by each signatory. The Company provided a list of 189 employees.  

[159] An analysis was conducted of this information and I was satisfied that all 135 names on 
the petition appear on the list provided by the Company.  My Associate corresponded with the 
parties informing them of the results of this analysis and my provisional view that a majority of 
the relevant employees wanted to bargain.  A redacted version of the petition was provided to 
the legal representative for MacKellar Mining.  I considered this to be an appropriate method 
to work out whether a majority of employees want to bargain in the circumstances of this case 
including the context in which the employees work, the nature of their work and the number of 
employees involved.  

[160] The statement that explains the petition and appears on each of the pages of signatories, 
is self-explanatory.  I do not accept that there is any possibility that a person who read the 
explanation at the top of each page of the petition, would not have understood the purpose of 
the petition and what they were signing.  The employees in question are coal mine workers.  As 
such they work in a high-risk environment with strict legislative requirements relating to 
workplace health and safety.  Routinely, coal mine workers complete risk assessments before 
they commence work and undertake training on standard operating procedures.  There is no 
evidence of language or literacy issues among the workforce at the Carmichael Mine to indicate 
that they would have had any issue understanding the petition.    

[161] There is also no evidence of any issues with custody or control of the petition during the 
process by which the signatures of employees were obtained.  I am satisfied that Mr Brunker’s 
evidence establishes that he, or officials of the CFMMEU who attended the Carmichael site 
with Mr Brunker, maintained custody of the petition at all times and that it is not necessary to 
inquire further into the process by which the signatures were obtained.  

[162] MacKellar Mining did not object to the use of a petition per se but rather, submitted that 
the Commission could not be satisfied that the petition genuinely reflects the views of the 
employees.  Essentially the case advanced by MacKellar Mining is that Mr Brunker misled 
employees so that their signatures were effectively obtained by deceptive conduct on the part 
of Mr Brunker.  While not seeking to obtain an unredacted copy of the petition, MacKellar 
Mining also asserted that the Company could not cross-examine a petition.

[163] There are few circumstances I can conceive of where it would be appropriate to provide 
an unredacted petition signed by employees, indicating their support for the commencement of 
enterprise bargaining with their employer, to their employer.  I share the view of Deputy 
President Colman expressed in Lovisa that it would be natural for employee-petitioners to be 
apprehensive about their identities being revealed to their employer, given they are taking a 
position that is aligned with a union in an effort to have their employer agree to something it 
evidently does not want to do, namely bargain.31 Employees are entitled to freedom of 
association – to join or not to join unions.  Employees are not obligated to inform employers 
whether they are or are not union members, or whether they support a union in its endeavours 
to obtain an enterprise agreement with their employer. It is entirely reasonable and 
understandable that employees who are union members or who support a union seeking to 
negotiate an enterprise agreement, may wish to maintain confidentiality.








[2022] FWC 690

36

[164] Most issues associated with the identity of persons who have signed a petition, and 
whether they are within the group specified in an application for a majority support 
determination, can be dealt with by the Commission examining lists of employees and 
unredacted versions of a petition to resolve discrepancies, and if necessary, seeking further 
information from the parties.  In some contested cases where the majority is small, it may be 
appropriate to provide a legal representative with an opportunity to review an unredacted 
petition, subject to appropriate undertakings being provided.  However, this is not such a case, 
and in any event, the Respondent or its legal representatives did not seek to view the unredacted 
petition. 

[165] I do not accept that it is appropriate to provide an employer with an unredacted copy of 
a petition simply for the employer to ascertain which employees have signed the petition so that 
those employees can be called by the employer to give evidence about their motives for signing 
or to establish a case that the employer seeks to advance about lack of understanding on the part 
of employees when they signed the petition, or misleading conduct on the part of a union, 
seeking to rely on the petition.

[166] If an employer wishes to advance a case that employees were misled or deceived by 
officials of a union in relation to a petition seeking to establish majority support for enterprise 
bargaining, then evidence to support such assertions should be provided from witnesses called 
by the employer.  Such allegations are serious and should not be made lightly and in the absence 
of cogent supporting evidence called by the party making the allegations.   

[167] I do not accept the submission advanced on behalf of MacKellar Mining in the present 
case, that it should not be expected to go amongst its workforce to find examples of people to 
support its case.  In my view, it is perfectly reasonable for an employer who receives complaints 
about the conduct of a union seeking to obtain majority support, to inform employees that such 
complaints have been received from their colleagues and to put in place a mechanism for other 
employees to report any concerns.  

[168] In the present case there was a suggestion to the effect that the Commission should have 
regard for the fact MacKellar Mining is a longstanding family business that is new to projects 
of the size it is undertaking at the Carmichael Mine and has not previously engaged in enterprise 
bargaining or with unions.  It was also put to Mr Brunker that if a secret ballot was conducted, 
the Company may be more inclined to accept that employees want to bargain. 

[169] Further, it was submitted that if industrial participants have a properly justified concern 
that the methodology proposed by a union is unreliable or tainted, as is the case in the present 
matter, then for it to be accepted by the Commission, properly regarded as the neutral umpire, 
despite these concerns, would tend to be corrosive to the cooperative relationships which the 
Act is designed to promote.  There was also a submission that if the petition tendered by the 
CFMMEU in the present case was accepted as the appropriate methodology for determining 
majority support, it would lead to resentment and suspicion and a view on the part of the 
Company that the Commission condones deceptive conduct and that the Commission should 
adopt a different methodology that might avoid that risk entirely.  In this regard, MacKellar 
Mining sought that the Commission approve an information statement to explain the 
consequences of the commencement of bargaining fairly and comprehensively, which the 








[2022] FWC 690

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employees could read and consider, free from any inappropriate pressure or influence from 
either party to the application. 

[170] I do not accept those submissions.  It is for the applicant for a majority support 
determination to establish that the basis upon which the Commission can be satisfied of the 
matters in s. 237(2) of the Act, by placing evidence before the Commission.  I accept that an 
employer has a right to raise concerns about misleading or deceptive conduct on the part of 
union officials or representatives, and to assert that the Commission should not be satisfied that 
the majority of employees want to bargain or that it is not reasonable in all the circumstances 
for the Commission to make a majority support determination.  However, it is the Commission 
that must be satisfied in relation to the matters in s. 237(2) rather than the employer objecting 
to the determination being made.  The Commission does not have to satisfy the employer party, 
but rather satisfy itself, that the determination should be made.  

[171] The mere fact that the employer has concerns, is not of itself, a sufficient basis for the 
Commission to embark on its own process of canvassing the views of employees, simply to 
assuage those concerns.  As a Full Bench of the Commission observed in Inpex Australia Pty 
Ltd v The Australian Workers’ Union32:

“We agree that a mere application under s 236 of the FW Act, or a bald assertion in an application that 
majority support exists with no proffered justification, may not be sufficient to provide the Commission 
with a jurisdictional basis to make orders to ascertain whether majority support for bargaining exists. 
There is force in the proposition that an application under s 236 is for a determination that majority support 
exists, not a speculative investigation into whether it exists. The provision appears to us to operate upon 
a premise that the bargaining representative applying for a determination has a reasonable hypothesis that 
there is majority support for bargaining. The materials before the Commission should bear out a 
reasonable foundation for such a hypothesis.”

 
[172] In that case the Full Bench also doubted the power of the Commission to order that the 
AEC conduct a ballot in connection with a majority support determination and found that a 
member of the Commission could not decide that the Commission would incur costs associated 
with a ballot being conducted by the AEC.  Often the timing of the making of a determination 
is critical, and while I do not suggest that this is the motivation in the present case, arguments 
such as those advanced by MacKellar Mining have the potential to delay the making of a 
determination.

[173] In my view, where there is a petition or other evidence which prima facie establishes 
that a majority of employees wish to bargain, and there is no basis for the Commission to believe 
that the requirements of s. 236 and s. 237(2)(b) and (c) are not met, the Commission would not 
intervene by putting in place a further process for ascertaining majority support in the absence 
of cogent evidence that is tested and found by the Commission to provide a reasonable basis 
for concluding that the majority of employees may not want to bargain, notwithstanding the 
petition, and that it is not reasonable on the basis of the evidence then before the Commission 
to make the determination.

[174] In the present case, Mr MacKellar stated in his evidence to the Commission that he was 
unaware that 135 employees (134 excluding Ms Jozsef) out of a total of 189 had indicated 
support for bargaining by signing a petition. This is by no means a narrow majority and I can 
only wonder at what additional evidence of support could have been obtained by the CFMMEU 








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in the circumstances of this case.  I turn now to consider the evidence of the alleged deceptive 
and misleading conduct on the part of the CFMMEU, and, Mr Brunker.

The evidence in relation to Mr Brunker’s conduct

[175] The only direct evidence about Mr Brunker’s conduct while exercising right of entry, 
was that of Mr Williams and Ms Jozsef.  I observe at the outset that I did not find Mr Williams 
to be a compelling witness.  This is not because of Mr Williams’ obvious antipathy to unions 
but rather because of his generally flippant demeanour in relation to giving evidence.  For 
example, when Mr Williams was asked whether he would take an oath or an affirmation, he 
responded by stating that he is Christian at the moment but is thinking of becoming a Muslim.  
It was also clear that Mr Williams did not have an accurate recollection of the date on which 
Mr Brunker made the alleged comments.  Further, on Mr William’s own evidence he had an 
altercation with Mr Brunker and fired questions at him raising the possibility that Mr William’s 
recollection is not entirely accurate, even if as he put it, Mr Williams “has a good memory for 
bullshit.”

[176] Even if Mr Williams’ evidence is accepted, there is nothing misleading about a union 
official who is endeavouring to persuade employees to support enterprise bargaining, informing 
those employees that the objective of enterprise bargaining is a wage increase and improved 
terms and conditions of employment.  On balance, I do not accept that Mr Brunker stated that 
MacKellar Mining had decided to “take flights off” employees or that they would lose their 
flights.  Ms Jozsef, who was a more convincing witness than Mr Williams, stated that Mr 
Brunker said that there was a really good possibility that employees would have to pay for their 
own flights and accepted that Mr Brunker was not definitive about this.  

[177] I find it probable that Mr Brunker stated that the Company may remove the flights it is 
providing to employees.  I also accept that Mr Brunker made this comment in the context of 
informing employees that benefits such as flights are more secure if they are provided for in an 
enterprise agreement than if they are provided for in Company policy and/or contracts of 
employment.  Further, I accept that Mr Brunker’s view that the Company had changed the 
contracts with respect to the provision of transport to site was erroneous.  In short, Mr Brunker 
gilded the lily or exaggerated in respect of what he told employees about flights.

[178] However, I also note that there is some accuracy in Mr Brunker’s assessment of 
effectiveness of the contractual entitlements of employees with respect to flights.  It is correct 
that an employer’s policies can be amended at any time.  The current contracts of employment 
do not specifically refer to transport to site being provided by plane.  Rather, they state that 
transport will be provided in accordance with Company policy.  

[179] I accept that neither Mr MacKellar nor MacKellar Mining, has any intention of 
removing flights from employees or changing Company policy in this regard, but this does not 
make Mr Brunker’s assessment inaccurate.  The Company could change its policy.  Further, if 
an entitlement is contained in an enterprise agreement, it cannot be varied without the 
agreement of a valid majority of employees and an application for variation being approved by 
the Commission.  I also note that if the Company was concerned about incorrect information 
being provided to employees, it could have corrected Mr Brunker’s misapprehension about the 








[2022] FWC 690

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contract and/or provided him with a copy of its policy.  Mr Brunker readily accepted under 
cross-examination that his interpretation of the contracts was erroneous.
 
[180] In relation to other matters complained of with respect to Mr Brunker’s communication 
with employees, MacKellar Mining pays aggregate or loaded rates, and reasonable minds can 
differ about how to unpack those rates to compare them to the rates employees would be earning 
under the Award.  MacKellar Mining is entitled to refuse to provide information about its rates 
to the CFMMEU and the CFMMEU is entitled to raise a dispute if such refusal is contrary to 
the Company’s obligations under the Act.

[181] However, I do not accept that information could not have been provided to Mr Brunker 
while maintaining the privacy of employees in relation to their wages.  Ms Ritter agreed that 
all operators at the same level are paid the same rate, and there was no reason on grounds of 
privacy to refuse the request to provide the Union with information about how the aggregated 
rates are calculated.  There is nothing inappropriate about Mr Brunker taking issue with those 
rates and asserting that they are inadequate to absorb all allowances and other payments that 
employees would be entitled to under the Award or that they are not sufficiently above the 
Award to meet industry standards or that the rates the Company is paying could be improved 
by enterprise bargaining.  The Company could have provided a breakdown of the rates it is 
paying to Mr Brunker while maintaining the confidentiality of employees.  While it is entitled 
not to do so, it cannot complain when Mr Brunker informs employees that he has requested 
information and it has been refused.  Mr Brunker is not obligated to inform employees as to 
why MacKellar Mining is refusing to provide him with information in order to accurately advise 
them about the benefits of enterprise bargaining.  

[182] I do not accept that Mr Williams or Ms Jozsef can given evidence about what other 
employees thought of the statements made by Mr Brunker.  I am sure that Mr Williams is not 
the only employee of MacKellar Mining capable of independent thought in relation to whether 
to sign a petition indicating support for enterprise bargaining.  There is no evidence that Mr 
Williams was pressured to sign the petition. If Ms Jozsef was pressured, it was not by the 
CFMMEU but rather by her work colleagues. That Ms Jozsef felt pressured is regrettable but it 
does not render the petition invalid and a majority support bargaining even if Ms Jozsef’s 
signature is not counted.  

[183] Finally, there are unresolved conflicts between the evidence of Ms Jozsef and Mr 
MacKellar about when they discussed Ms Jozsef’s concerns about the conduct of Mr Brunker 
at the site.  If I accept Mr MacKellar’s evidence, the discussion with Ms Jozsef did not occur 
until 25 August 2021 despite the incident which gave rise to Ms Jozsef’s concerns with Mr 
Brunker’s conduct having occurred on 17 July 2021.  In this regard, I note that the CFMMEU’s 
application for a majority support determination was made on 3 August 2021 and that the 
Company’s material in opposition was filed on 27 August 2021.  I also note Ms Jozsef’s 
evidence that Mr MacKellar telephoned her seeking that she provide a witness statement in the 
present proceedings.  

[184] While this does not detract from the veracity of Ms Jozsef’s evidence, it is indicative 
that while Mr MacKellar provided support to Ms Jozsef by asking staff to contact her and that 
the purpose of his contact was to obtain a witness statement from Ms Jozsef for the purposes of 
opposing the CFMMEU application for a majority support determination.








[2022] FWC 690

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[185] In conclusion, while Mr Brunker’s communication with employees of MacKellar left 
something to be desired in terms of accuracy, it was not misleading and deceptive to the extent 
that I could find that the majority of employees of MacKellar Mining do not wish to bargain 
and that it is not reasonable in the circumstances to make a majority support determination.

[186] For these reasons I issued a majority support determination on 10 January 2022. 

DEPUTY PRESIDENT

Appearances:

Mr R Anderson for the CFMMEU.

Mr D Williams of MinterEllison for the Respondent.

Hearing details:

14 & 28 September.

2021.

Brisbane.

Printed by authority of the Commonwealth Government Printer

PR739779

1 Exhibt A1 – Statement of Shane John Brunker.  
2 Exhibit R3 – Witness Statement of Duncan Guy MacKellar.
3 Exhibit R4 – Witness Statement of Brianna Chanel Jozsef.
4 Exhibit R5 – Witness Statement of Leonard Michael Williams.
5 Exhibit R6 – Witness Statement of Monica Delyce Ritter.
6 Transcript PN762 – 763, 785.
7 Transcript PN 811.
8 Transcript of Proceedings – PN844 – PN851


FAIR AL OF THE FAIR WORK .C MMISSION THE




 



[2022] FWC 690

41

9 Transcript of Proceedings – PN1023
10 Transcript of Proceedings – PN1000
11 Transcript of Proceedings – PN1093
12 Transcript of Proceedings – PN1075
13 Transcript of Proceedings – PN571
14 Transcript of Proceedings – PN586
15 Transcript of Proceedings – PN599
16 Transcript of Proceedings – PN632
17 Transcript of Proceedings – PN692.
18 Transcript of proceedings PN 706 – 707.
19 Exhibit R1.
20 Exhibit R2.
21 Finance Sector Union of Australia [2010] FWA 2690, at [66] – [69].
22 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing 

Workers’ Union (AMWU) v Veolia Water Operations Pty Ltd [2015] FWC 2561. 
23 National Union of Workers v Metcash Food & Grocery Pty Ltd [2015] FWC 1582; The Australian Workers’ Union v The 

Austral Brick Co Pty Ltd T/A Austral Bricks [2010] FWA 5819 at [31] – [32]; NUW v Cotton on Group Services P/L 
[2014] FWC 6601 at [36]

24 [2009] FWA 1123
25 [2011] FWA 7928 at [7]
26 [2010] FWA 5819 at [31]
27 Transport Workers’ Union of Australia v MWAV Pty Ltd T/A Man With A Van [2018] FWC 6525 at [37]
28 CFMEU v Xstrata Ulan (2012) 221 IR 59
29 [2019] FWC 2885.
30 Ibid at [33].
31 Ibid at [36]. 
32 [2020] FWCFB 5321.

Cases cited by this decision: