Australia High Court: In a significant ruling on the scope of the coal industry’s portable long service leave scheme, Gageler CJ*, Jagot*, Gordon**, Steward*** and Gleeson***, JJ., by a 3:2 majority, held that eligibility may depend on the nature and location of an employee’s work rather than the business carried on by the employer. The Court ruled that employees performing shotfiring work at black coal mines were not excluded from the statutory scheme merely because their employer was not otherwise engaged in the black coal mining industry, clarifying the operation of the employer limb and location limb in the definition of “eligible employee” under the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the Administration Act).
Background
The appellant, Coal Mining Industry (Long Service Leave Funding) Corporation, is a statutory corporation established under the Administration Act. One principal object of the said Act is to provide long service leave entitlements to “eligible employees” by reference to their qualifying service for one or more employers and to establish and maintain the Coal Mining Industry (Long Service Leave) Fund, from which employers are reimbursed for long service leave payments made to eligible employees.
The respondent, Orica Australia Pty Ltd (Orica), employed shotfirers who worked at open-cut black coal mines in New South Wales and Queensland. Shotfiring involved placing high-powered explosives in holes in the ground which, when detonated, exposed a black coal seam and enabled extraction of black coal. A dispute arose between the Corporation and Orica as to whether Orica’s shotfirers were “eligible employees” under the Administration Act. The resolution of the dispute depended upon the proper construction of the definitions of “eligible employee” and “black coal mining industry” in Section 4(1) of the Administration Act.
Before the primary judge, it was not disputed that Orica’s shotfirers performed their duties at black coal mines and that their duties were directly connected with the day-to-day operation of a black coal mine. The primary judge held that Orica’s shotfirers were “eligible employees”. On appeal, the Full Court of the Federal Court held that Orica’s shotfirers were not “eligible employees”, except during the period in which Orica operated the Minova business. The Corporation appealed to the High Court.
Analysis, Law and Decision
Majority Opinion (Gageler CJ and Jagot J, with Gordon J agreeing)
The majority held that since the enactment of the Administration Act, the definition of “eligible employee” had contained two distinct and bifurcated limbs: an employer limb and a location limb. The employer limb required that an employee be employed in the black coal mining industry by an employer engaged in the black coal mining industry, whereas the location limb required that an employee be employed in the black coal mining industry and perform duties at or about a place where black coal is mined that are directly connected with the day-to-day operation of a black coal mine.
The Court considered it significant that the words “by an employer engaged in the black coal mining industry” appeared only in the employer limb and were absent from the location limb. According to the Court, the phrase “employed in the black coal mining industry” referred to the nature of the activities carried out by the employee and not the substantial industrial or business character of the employer’s activities. The substantial character of the employer’s business was relevant only to the employer limb.
Examining the history of the Administration Act, the portable long service leave scheme and the award-modernisation process, the Court held that the location limb had always operated independently of the status of the employer and that employees must be able to move between employers and between the two limbs without interrupting the accrual of qualifying service. Further, the Court held that clause 4.3(g), excluding “the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry”, was directed only to the employer limb. Applying the clause to the location limb would collapse the distinction between the two limbs and undermine a fundamental feature of the Administration Act.
Accordingly, the Court concluded that Orica’s shotfirers, whose duties were carried out at or about a place where black coal was mined and were directly connected with the day-to-day operation of a black coal mine, were “eligible employees” under the location limb.
Justice Gordon (Concurring opinion)
Gordon J., agreed with the orders proposed by the majority and likewise concluded that clause 4.3(g) did not apply to the location limb. Her Honour placed particular emphasis on the deliberate uncoupling of an employee’s activities from the industry of the employer. Gordon J., observed that both the Administration Act and the award-modernisation process deliberately adopted a structure under which an employee could qualify under the location limb regardless of whether the employer was engaged in the black coal mining industry. According to Gordon J., the corollary of that structure was that an employee may be “employed in the black coal mining industry” even though the employer was not “engaged in” that industry.
Gordon J., further held that clause 4.3(g) was concerned with whether an employer was engaged in the black coal mining industry and therefore operated only in relation to the employer limb. Applying the exclusion to the location limb would make the employer’s status relevant to a provision that was intentionally designed to operate independently of that status.
Justice Steward (Dissenting Opinion)
Steward J., considered that the text and history of the relevant legislation and the Award compelled the conclusion that Orica’s shotfirers were not employed in the black coal mining industry after 28 February 2022. Steward J., placed considerable reliance on the history of Construction, Forestry, Mining and Energy Union v. Dyno Nobel Asia Pacific Ltd, (Dyno Nobel) in which the Australian Industrial Relations Commission held that Dyno Nobel’s business had its substantial character in the explosives industry rather than the coal industry. Steward J., considered that clause 4.3(g) was inserted into the Award specifically to address that issue and to preserve that outcome.
According to Steward J., clause 4.3(g) plainly referred to the supply of shotfiring services by enterprises in the explosives industry, such as Dyno Nobel (supra). Therefore, the clause excluded such activities from the black coal mining industry. On that construction, Orica shotfirers were excluded from the operation of the long service leave scheme unless Orica was otherwise engaged in the black coal mining industry through the Minova business.
Justice Gleeson (Dissenting Opinion)
Gleeson, J., considered that the definition of “black coal mining industry” adopted in the Administration Act incorporated both the included activities in clause 4.2 and the exclusions in clause 4.3 of the Award. Gleeson J., rejected the view that clause 4.3(g) operated solely in relation to employers. Once clause 4.3(g) was read into the definition of “black coal mining industry”, a person employed in the supply of shotfiring services by an employer not otherwise engaged in the black coal mining industry was not employed in the black coal mining industry for the purposes of the location limb.
Gleeson J., considered that the award-modernisation history demonstrated an intention to preserve the position established by Dyno Nobel (supra) and to exclude providers of specialist shotfiring services from the black coal mining industry, while treating Orica and Dyno Nobel (supra) consistently.
Decision
By a 3:2 majority, the High Court allowed the appeal and dismissed the cross-appeal. The Court held that clause 4.3(g) applied only to the employer limb and that Orica’s shotfiring employees were “eligible employees” under the location limb of the Administration Act.
[Coal Mining Industry (Long Service Leave Funding) Corporation v. Orica Australia Pty Ltd, [2026] HCA 30, decided on 9-9-2026]
*Judgment authored by- Chief Justice Gageler and Justice Jagot
** Concurring Judgment by- Justice Gordon
*** Dissenting Opinion by- Justice Steward and Justice Gleeson
Advocates who appeared in this case:
NC Hutley SC with JR Clarke SC and TJ Kane for the appellant (instructed by Corrs Chambers Westgarth).
JD McKenna KC with DK Fuller for the respondent (instructed by MinterEllison).
CJ Tran with AM Sage for the Mining and Energy Union, intervening.
JE Murdoch KC with TA Spence for Dyno Nobel Asia Pacific Pty Limited, intervening.
