In overturning an earlier decision, a Fair Work Commission Full Bench has found the Mining and Energy Union (MEU) is entitled to represent and initiate bargaining for a group of “operator awareness” employees.

On 18 February, Deputy President Boyce dismissed the union’s application for a majority support determination on behalf of 11 Operator Awareness Monitoring Centre (OAMC) officers employed by Glencore Coal.

The officers work from a purpose-built facility at the former West Wallsend Colliery site near Newcastle, NSW, surveying safety and operational data via an Operator Awareness System (OAS) – an in-vehicle monitoring and fatigue detection unit – across various Glencore mining sites in Australia and internationally.

The MEU claimed it was entitled to represent the OAMC officers because it represented “persons working in or in connection with the coal industry”.

In contrast, DP Boyce found the union’s eligibility rules meant an employee was excluded from membership if they were eligible for the alternative United Collieries Staff Association (USCA) of New South Wales.

This was an “express exception” to the MEU’s broad coverage in the coal mining industry.

Despite the UCSA no longer existing, DP Boyce interpreted the exception should continue to apply to members of the Collieries Staff Association of APESMA (Association of Professional Engineers, Scientists, and Managers, Australia) – the principle union now representing supervisory, professional, administrative, clerical and technical employees in the coal mining industry. [APESMA has become known as Professionals Australia].

No enterprise agreement in place

However on appeal from the MEU, the Full Bench (VP Gibian, DP Saunders and DP Grayson) disagreed.

There was no enterprise agreement that covered or applied to OAMC officers:

“A group of employees wishes to engage in bargaining with their employer for the purposes of making an enterprise agreement to improve their terms and conditions of employment.

“The employees have been denied a majority support determination which would achieve that outcome as a result of an erroneous construction being adopted of the MEU’s rules.

“It is reasonable … to make the determination”.

The Full Bench widely interpreted the MEU’s eligibility rules, noting “the principal aspect of (the rules) is that the MEU is entitled to have as members any employees engaged in or in connection with the coal and shale industries.

“The rules contain a number of exclusions. None of the exclusions … are suggested to be relevant to the MEU’s entitlement to represent the industrial interests of the OAMC officers.

“A long line of decisions have made clear that the application of historical equivalents of the union’s (general eligibility rule) turns on whether the employer of relevant employees operates in or in connection with the coal and shale industries.

“There have been many hard fought and difficult cases which have considered whether the operations of particular employers can properly be characterised as being in or in connection with the coal and shale industries. This is not one of them.

“Glencore is a large coal mining company. There is, and could be, no dispute that it operates ‘in’ the coal and shale industries. The OAMC officers are employed by Glencore and are eligible for membership.”

DP Boyce’s decision was quashed, and a majority support determination made.

Implications for employers

This decision reinforces the importance of alignment between union eligibility rules and the actual duties of employees.

It also may affect how unions approach representation in non-traditional or remote roles within their industries.

AREEA understands the MEU has filed a good faith bargaining application with the FWC, seeking to become involved in bargaining already on foot between BHP and the AWU, ETU and Australian Manufacturing Workers Union (AMWU).

The MEU is reportedly arguing it has constitutional coverage of BHP truck drivers, relying upon an ambitious interpretation of its historical coverage of “engine driver”.

AREEA members should note employers can challenge union applications for bargaining if the union’s eligibility rules do not clearly cover the specific duties of employees.

Employers have a legal basis to resist bargaining where the union’s coverage is ambiguous or outdated. And to limit legal risk, they should ensure job descriptions and classifications are well-documented and reflect the duties performed.

This documentation can be critical in disputes over union eligibility and bargaining rights.

Companies may consider structuring certain roles or teams in ways that are distinct from traditional union-covered roles, especially in tech-driven or remote environments.

This could allow for more flexible employment arrangements and reduce exposure to collective bargaining.

Key takeaways for members:

• If in doubt, review union eligibility rules.
• Prepare for potential challenges to union applications.
• Develop proactive strategies for managing union engagement.

For more information or guidance, [email protected].