FEDERAL COURT OF AUSTRALIA
Hitachi Construction Machinery (Australia) Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2024] FCAFC 166
ORDERS
HITACHI CONSTRUCTION MACHINERY (AUSTRALIA) PTY LTD (ACN 000 080 179) Appellant | ||
AND: | COAL MINING INDUSTRY (LONG SERVICE LEAVE FUNDING) CORPORATION Respondent | |
DATE OF ORDER: | 16 December 2024 |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 Coal Mining Industry (Long Service Leave Funding) Corporation (Coal LSL) is a statutory authority responsible for administering a long service leave Scheme for workers in the black coal mining industry.
2 The Scheme is comprised of three enactments: the Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 (Cth), the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth). Section 4(1) of the Administration Act defines “eligible employee” to include, relevantly:
(a) an employee who is employed in the black coal mining industry by an employer engaged in the black coal mining industry, whose duties are directly connected with the day to day operation of a black coal mine; or
(b) an employee who is employed in the black coal mining industry, whose duties are carried out at or about a place where black coal is mined and are directly connected with the day to day operation of a black coal mine; or
…
3 On Coal LSL’s application, the primary judge made orders requiring Hitachi Construction Machinery (Australia) Pty Ltd to pay levies and additional levies under the Scheme: Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd (Penalty) [2023] FCA 1187 (PJ). The orders were based on earlier findings that Hitachi had an obligation to make contributions under the Scheme in respect of three former employees and one current employee (together the Hitachi Employees) each of whom were found to come within para (b) of the eligible employee definition: Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd [2023] FCA 68 (LJ). The primary judge concluded that para (a) of the definition was not enlivened because Hitachi was not “engaged in the black coal mining industry”: LJ, [241]. The primary judge rejected Hitachi’s defence that Coal LSL’s action was partially barred by a limitation of time under s 14(1)(d) of the Limitation Act 1969 (NSW) (State Limitation Act): LJ, [261]. The primary judge said that if she had been required to do so, she would have made alternative findings about the application of s 10 and s 18 of the State Limitation Act which would have precluded its application in any event.
ISSUES AND OUTCOME
4 Hitachi appeals from the orders on five grounds contained in a Further Amended Notice of Appeal filed 23 May 2024 (FANOA).
5 Grounds 1 to 3 allege multiple errors affecting the conclusion that the Hitachi Employees fell within para (b) of the eligible employee definition.
6 By an amended notice of contention, Coal LSL seeks to uphold the judgment on several alternate bases. It contends that if the primary judge erred in finding that the Hitachi Employees fell within para (b) of the definition, the judgment should be upheld on the basis that they fell within that paragraph for different reasons on the facts. Alternatively, Coal LSL contends that the primary judge ought to have found that the Hitachi Employees fell within para (a) of the definition in any event.
7 Those grounds of appeal and contentions give rise to what may be referred to as the Eligible Employee Issue.
8 Grounds 3 and 4 allege errors in the conclusion that the State Limitation Act had no application to Coal LSL’s claims. Coal LSL contends that if the primary judge erred in concluding that the State law had no application for the reasons that she gave, the conclusion was nonetheless correct for alternate reasons. The grounds and contentions concerning the application of the State Limitation Act will be referred to as the Limitation Issue.
9 For the reasons that follow, the grounds of appeal relating to the Eligible Employee Issue should be rejected. We would conclude in any event that the Hitachi Employees did fall within para (b) of the definition.
10 Hitachi’s submission that the primary judge erred in reasoning to the conclusion that the State Limitation Act did not apply should be accepted to a limited extent. However, we consider that the ultimate conclusion was nonetheless correct for the reasons contended for by Coal LSL.
11 It follows that the appeal should be dismissed.
LEGISLATION
The Scheme
12 The Scheme is a regime for the accrual, funding and collection of long service leave entitlements for certain employees working in the black coal industry. A purpose of the Scheme is to provide for long service leave entitlements that may not otherwise accrue because of the transitory nature of work in the industry. Under the Scheme, entitlements to take long service leave are “portable” in the sense that they accrue by reference to an employee’s period of work in the industry, rather than a period of work served with a specific employer.
13 Prior to the enactment of the legislation now comprising the Scheme, there existed a portable scheme for long service leave available to employees covered by certain industry awards. In that period, the award entitlements were funded by an excise on coal production. From 1993 the entitlements were funded by a levy. Coal LSL was established to administer the Scheme, which provided for the reimbursement of employers who made payments to eligible employees when the Award based entitlement to long service leave was exercised. Those amendments were intended to address deficiencies in funding culminating in a $250.2 million unfunded liability for untaken long service leave as at 30 June 1990: Explanatory Memorandum, Coal Mining Industry (Long Service Leave Funding) Bill 1992 (Cth).
14 From 1 January 2010, industry awards were superseded by modern awards which, under the Fair Work Act 2009 (Cth), were not permitted to include long service leave requirements. Existing award based entitlements were nonetheless preserved under s 113 of the Fair Work Act and s 44(3) of the Administration Act (then differently named). From that time, the portable long service leave entitlements (and associated employer obligations) were directly enacted by amendments to the Scheme made by the Coal Mining Industry (Long Service Leave Funding) Amendment Act 2009 (Cth) (2009 Amending Act). The 2009 Amending Act introduced definitions for the terms “black coal mining industry”, “employee”, “employer”, and amended the definition of “eligible employee”, which now forms the subject matter of this appeal.
15 Paragraphs (a), (b) and (c) of the amended “eligible employee” definition each contain the phrase “black coal mining industry”. It is defined in s 4(1) of the Administration Act as follows:
black coal mining industry has the same meaning as in the Black Coal Mining Industry Award 2010 as in force on 1 January 2010.
16 The Black Coal Mining Industry Award 2010 contains the following definition:
4.2 … the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. Subject to the foregoing, the black coal mining industry includes:
(a) the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;
(b) the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease;
(c) the transportation of black coal on a coal mining lease; and
(d) other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.
4.3 The black coal mining industry does not include:
(a) the mining of brown coal in conjunction with the operation of a power station;
(b) the work of employees employed in head offices or corporate administration offices (but excluding work in town offices associated with the day-to-day operation of a local mine or mines) of employers engaged in the black coal mining industry;
(c) the operation of a coal export terminal;
(d) construction work on or adjacent to a coal mine site;
(e) catering and other domestic services;
(f) haulage of coal off a coal mining lease (unless such haulage is to wash plant or char plant in the vicinity of the mine); or
(g) the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry.
[NOTE substituted by PR531393 ppc 01Jan10]
NOTE: The coverage clause is intended to reflect the status quo which existed under key pre-modern awards in relation to the kinds of employers and employees to whom those awards applied and the extent to which the awards applied to such employers and employees.
An example of the types of issues and some of the case law to be considered when addressing coverage matters can be found in Australian Collieries Staff Association and Queensland Coal Owners Association – No. 20 of 1980, 22 February 1982 {Print CR2297} and in the Court decisions cited in this decision.
NOTE: See, for example, decision of the Coal Industry Tribunal in Australian Collieries Staff Association and Queensland Coal Owners Association – No 20 of 1980, 22 February 1982 [Print CR 2997].
17 The Explanatory Memorandum to the 2009 Amending Act stated that a purpose of the amendments was to ensure that the Scheme applied universally in the black coal mining industry from 1 January 2010, including by aligning the definition of the industry to the industry definition in the Award.
18 The Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011 (Cth) (2011 Amending Act) conferred additional powers on Coal LSL to ensure compliance with the Scheme, including by way of civil penalty provisions. Its functions include the receipt of returns and levy payments made under the Collection Act and an “additional levy” under s 7 of the Collection Act, and to sue for and recover amounts of levy and additional levy that have not been paid: Collection Act, s 11. In addition, Coal LSL must maintain the Coal Mining Industry (Long Service Leave) Fund under s 40 of the Administration Act.
Entitlement to long service leave
19 Under Pt 5A of the Administration Act, a person’s entitlement to take long service leave is based on an aggregate of “qualifying service” as an “eligible employee”. Under s 39A(1), if an eligible employee completes a period of qualifying service that is at least eight years (or periods adding up to at least eight years), the employee is entitled to long service leave under Pt 5A in respect of that (or those) qualifying period(s) of service. Qualifying service does not include periods prescribed in s 39A(2), including periods of unauthorised absence, certain periods of unpaid leave and:
(c) if the employee ceases to be an eligible employee for a continuous period (a break period) of 8 years or more – any period before the break period during which the employee was an eligible employee…
20 Section 39A(2)(c) does not apply where the eligible employee has already accrued an entitlement to take long service leave before the break period commences: Administration Act, s 39A(4).
21 The amount of long service leave to which an eligible employee is entitled for a week of qualifying service is worked out using a formula in s 39AA(2) of the Administration Act: see s 39AA(1). That formula is as follows:
(2) The formula is:
13 x Working hours
416
where:
working hours means:
(a) if the employee is a full-time employee at all times during the week—35 hours; or
(b) if the employee is a part-time employee at any time during the week—the lesser of the following amounts (or either of them if they are equal):
(i) the total number of ordinary hours of work of the employee as a part-time employee for the week;
(ii) 35 hours; or
(c) if the employee is a casual employee at any time during the week and paragraph (b) does not apply—the lesser of the following amounts (or either of them if they are equal):
(i) the number of hours for the week worked out under whichever of subsections (3) and (4) is applicable;
(ii) 35 hours.
22 An eligible employee may apply to his or her employer in writing to take a period of long service leave that does not exceed the employee’s “LSL credits” (being the number of hours to which the employee is entitled under s 39AA for each week of qualifying service, less the number of hours of long service leave (if any) previously granted to the employee): Administration Act, s 39AB.
23 If an eligible employee takes a period of long service leave, the employer must pay the employee an amount at least equal to the base rate of pay that would have been payable during the period had the employee not taken leave: Administration Act, s 39AC. An employer is also required to make payments under ss 39CA, 39CB and 39CC in certain events such as the employee’s ill health, retirement, redundancy or death.
Imposition and collection of levies and additional levies
24 A levy is imposed on eligible wages paid to eligible employees, relevantly for the primary judge, at the rate of 2% of the eligible wages paid: Levy Act, ss 4 and 5; reg 6 of the Coal Mining Industry (Long Service Leave) Payroll Levy Regulations 2018 (Cth). The Collection Act contains provisions for the collection of those levies. By s 4 of the Collection Act, a levy in respect of eligible wages paid to eligible employees “for their employment during a month” is payable at the end of the period within which a return is required to be made in respect of that month. Returns must be made within 28 days after the month in which the eligible wages are paid: Collection Act, s 5. Failure to make a return attracts a civil penalty and is also an offence: Collection Act, s 5(1) and (3). Under s 10 of the Collection Act, if a person employs an eligible employee at any time during a financial year, the person must, within a prescribed time, give Coal LSL a report prepared by an auditor stating (among other things) the auditor’s opinion that the person has paid all amounts of levy or additional levy. Failure to provide such a report also attracts a civil penalty and is an offence: Collection Act, s 10(1) and (2).
25 Section 7 of the Collection Act has the heading “Additional levy”. It provides:
Additional levy
(1) If any levy remains unpaid on any day after the time when it became payable, or would apart from section 6 have become payable, additional levy is payable by way of penalty by the person liable to pay the levy, at the percentage applicable under subsection (2) in respect of that day, on the amount unpaid, computed from that time or, if under section 6 the Corporation has granted an extension of time for payment of the levy or has permitted payment of the levy to be made by instalments, from such date as the Corporation determines, not being a date before the date on which the levy was originally payable.
(2) The percentage applicable in respect of a day is 2 percentage points above the maximum indicator interest rate for that day, where:
maximum indicator interest rate, in relation to a day, means the higher or the highest, as the case may be, of the range of rates of interest per annum current on that day quoted by the Reserve Bank, on the basis of reports by each bank regarded by the Reserve Bank as a major trading bank operating in Australia, in respect of overdrafts of $100,000 or more.
(3) If judgment is given by, or entered in, a court for payment of:
(a) an amount of levy; or
(b) an amount that includes an amount of levy;
then:
(c) the levy is not taken, for the purposes of subsection (1), to have ceased to be payable merely because of the giving or entering of the judgment; and
(d) if the judgment debt carries interest, the additional levy that would, apart from this paragraph, be payable under this section in relation to the levy is, by force of this paragraph, reduced by:
(i) in a case to which paragraph (a) applies—the amount of the interest; or
(ii) in a case to which paragraph (b) applies—the amount worked out in accordance with the formula:
amount of interest x amount of the levy
amount of the judgment debt.
(4) In this section:
bank includes, but is not limited to, a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959.
26 A levy under s 4 of the Levy Act or an additional levy under s 7 of the Collection Act is a debt due to the Commonwealth that may be sued for and recovered by Coal LSL “in any court of competent jurisdiction”: Collection Act, s 9.
Reimbursement for payments
27 An employer who grants leave and makes a payment for that leave is entitled to be reimbursed from the Fund: Administration Act, s 44. The reimbursement is calculated and paid in accordance with the Employer Reimbursement Rules made under the Administration Act.
Relationship with other laws
28 Part 5A of the Administration Act applies in relation to eligible employees and their employers to the exclusion of Div 9 of Pt 2-2 of the Fair Work Act (relating to National Employment Standards): Administration Act, s 39E. It also applies in relation to eligible employees and their employers to the exclusion of a State or Territory law that deals with long service leave: Administration Act, s 39EA. Part 5A establishes minimum standards and is not intended to override entitlements or rights in respect of long service leave under an industrial instrument that covers that employee: Administration Act, s 39EB.
Court orders
29 Section 39DB of the Administration Act confers powers on this Court and on the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) to make orders in relation to a person who has contravened or proposes to contravene a civil penalty provision of Pt 5A, including orders awarding compensation for loss suffered because of the contravention or proposed contravention, orders granting injunctions to remedy the effects of a contravention or prevent a contravention from occurring, and any other order the Court considers necessary.
30 Orders under s 39DB may be made on application under s 39DA by an employee, employee organisation or an industrial association.
31 Each civil penalty provision of the Administration Act is enforceable under Pt 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act): Administration Act, s 49A. Coal LSL is an authorised applicant for the purpose of that regime, and this Court and the FCFCoA are relevant courts for that purpose: Administration, s 49A(2) and (3).
THE ELIGIBLE EMPLOYEE ISSUE
32 Coal LSL sought orders for the payment of levies owing under s 4 of the Collection Act and additional levies owing under s 7 of the Collection Act in respect of the Hitachi Employees. Those orders required a determination of the whether the Hitachi Employees were eligible employees within the meaning of s 4(1) of the Administration Act. That determination required the primary judge to construe the terms of s 4(1) and apply the duties and circumstances of the Hitachi Employees to that construction.
33 The primary judge reached the following conclusions on the Eligible Employee Issue. First, the determination of whether the Hitachi Employees were eligible employees within s 4(1) of the Administration Act was not confined solely to a consideration of the employees’ contracted terms. Second, the Hitachi Employees were employed in the black coal mining industry within the meaning of s 4(1)(b) of the Administration Act (limb (b)). Third, the duties of the Hitachi Employees were carried out at or about a place where black coal is mined within the meaning of limb (b). Fourth, the duties of the Hitachi Employees were directly connected with the day to day operation of a black coal mine within the meaning of limb (b). Fifth, had it been necessary to determine it, Hitachi was not an employer engaged in the black coal mining industry within the meaning of s 4(1)(a) of the Administration Act (limb (a)).
34 Accordingly, the primary judge found that the Hitachi Employees were eligible employees within the meaning of s 4(1)(b) of the Administration Act.
35 We address the salient parts of the primary judge’s reasons for those conclusions under the consideration of each ground of appeal.
36 Hitachi raises three grounds of appeal on the eligible employee issue. First, it submits the primary judged erred in concluding that each of the Hitachi Employees was employed in the black coal mining industry within the meaning of limb (b) (the employment limb and ground 1). Second, it says the primary judge erred in concluding that the duties of each of the Hitachi Employees were directly connected with the day-to-day operation of a black coal mine within the meaning of limb (b) (the operational limb and ground 2). Third, it says the primary judge erred in concluding that the duties of each of the Hitachi Employees were carried out at or about a place where black coal is mined within the meaning of limb (b) (the location limb and ground 3). Inherent in each of those grounds was the submission that the primary judge was wrong to conclude that the determination of whether the Hitachi Employees were eligible employees within s 4(1) of the Administration Act was not confined to a consideration of the employees’ contracted terms.
37 Coal LSL supports the primary judge’s conclusions but also contends that the orders of the primary judge (on the Eligible Employee Issue) should be affirmed on grounds other than those relied upon by the primary judge. First, it says that the primary judge should have found that the Hitachi Employees were eligible employees within the meaning of limb (a), by reason that Hitachi was an employer engaged in the black coal mining industry. Second, it says if the determination of whether the Hitachi Employees were eligible employees within s 4(1) of the Administration Act is not confined to a consideration of the employees’ contracted terms, then the primary judge should still have determined that the Hitachi Employees were eligible employees within the meaning of s 4(1) of the Administration Act.
38 For the reasons set out below, we reject each of the grounds of appeal. In those circumstances it is not necessary to determine Coal LSL’s alternative contentions.
39 Before addressing the grounds of appeal, we address two matters relevant to each of the grounds of appeal. First, the duties and circumstances of the Hitachi Employees by which the primary judge reached the conclusions above and those duties and circumstances relevant to, or accepted by, the grounds of appeal. Second, the issue as to whether the inquiries on each ground of appeal are confined to the contractual terms of the Hitachi Employees.
THE DUTIES AND CIRCUMSTANCES OF THE HITACHI EMPLOYEES
40 The primary judge comprehensively set out her findings on the duties and circumstances of the Hitachi Employees at LJ [59] - [159]. Save for one part of appeal ground 1, there was very little controversy about those duties and circumstances on the appeal. We set out here the most salient of those matters as they affect the grounds of appeal.
41 The Hitachi Employees are Mr Benjamin Garland, Mr Brenton Gee, Mr Bradley Stair and Mr Graeme Cooper. Mr Stair is still employed by Hitachi but the others are not. The employees maintained and worked on, in the ways set out below, Hitachi Machinery. Whilst the primary judge did not make an express finding, it seems clear that that machinery was Hitachi dump trucks and Hitachi excavators. The primary judge concluded that machinery was ordinarily used to remove overburden and not black coal; where overburden comprises the material above the coal seam which needs to be removed from an open cut mine in order to gain access to the coal: LJ, [98]. Her Honour also found that the overburden was moved (using Hitachi machinery) to a dump located elsewhere on the mine site, which was usually an area that had already been excavated and mined and was being backfilled: LJ, [98].
Common contractual terms
42 The employees’ contracts were “largely identical”, except for Mr Stair’s contract: LJ, [75]. The “Position” of each employee was described in their contract as:
(a) Mr Garland, as “Roster Mechanical Fitter”;
(b) Mr Gee, as “Field Service Roster Fitter 1”;
(c) Mr Stair, as “High Voltage Electrician”; and
(d) Mr Cooper, as “Roster Mechanical Fitter”.
43 Each of the employees, had “27-29 Thomas Mitchell Dr, Muswellbrook NSW 2333” or “27-35 Thomas Mitchell Drive, Muswellbrook NSW 2333” as their place of work. This was described by each employee as the “branch workshop”, not the black coal mine sites where they worked: LJ, [79].
44 A generic “Position Description” was annexed to each of the employee’s contract in identical format. The employee’s name and position number, their position title, their department and the person to whom they reported were individualised in each contract: LJ, [81].
45 The Position Description provided the “Overall Position Purpose” to be “[t]o provide quality diagnostic and general maintenance service for our customers’ equipment in a professional, timely manner…[and] [t]o work with all personnel, in a proactive, constructive and team based approach”: LJ, [83].
Common experience of the employees
46 Both parties treated the employees as a homogenous group, and the following was common amongst the Hitachi Employees (LJ, [87] – [88]):
(a) save for when they were each initially employed (for a month or so) none of the employees worked at the “Location” identified in their contracts, namely the branch workshop;
(b) all the employees worked at either one or a range of black coal mine sites as directed by Coal LSL from time to time, working out of the site workshop or wherever on the mine site the equipment was located; and
(c) their work involved, depending on their skills and qualification, maintenance and repairs (primarily) of Hitachi equipment on the black coal mine sites.
Duties of employees
47 The employees were involved in three main forms of work performed at the mine sites; servicing, breakdown and shutdown: LJ, [90] – [95].
48 Servicing work involved cleaning and then checking all functions of the machine, including the machine’s steering, struts and suspension. Oil, oil filters, hydraulic steering filters were changed and the machine was inspected to determine whether there were any cracks or oil leaks, which, if identified, were repaired.
49 Breakdown work was maintenance work where Hitachi equipment had broken down. Breakdown work was performed on an as-needed basis and was often carried out in the mining pit if it was not possible to move the machine from the pit.
50 Shutdown work occurred after 20,000 hours of use of equipment. The Hitachi dump trucks were placed into a shutdown period and components were replaced. The dump trucks were transported to the Hitachi workshop at Muswellbrook for this to occur and this process could take two to three weeks to complete.
The mine sites’ workshops and integration with coal operators
51 The parties did not dispute that the Hitachi Employees principally worked at the main workshop located within the black coal mining site: LJ, [114].
52 All of the Hitachi Employees performed some work at the Liddell mine site. At the Liddell mine maintenance workshop, Hitachi employees were assigned one or two bays to service and repair the Hitachi machinery. Forklifts, overhead cranes, ladders, stands, jacks and lifting rigs were provided by Liddell Coal Operations Pty Ltd (LCO) and that same equipment was used by LCO employees: LJ, [115]. There was a Liddell tool store that was used by both Hitachi and LCO employees: LJ, [116]. The Hitachi employees had tools that were used specifically for the servicing and repair of the Hitachi machinery. Hitachi employees were able to access consumables that LCO supplied such as rags, lubricants, electrical tape, oil, air and water used for servicing and maintenance. However, Hitachi was responsible for providing consumables relating to their employee’s execution of their work such as gloves, safety glasses and other personal protective equipment. Hitachi was also responsible for purchasing any specialised or machine-specific tools required for the Hitachi machines and those tools were owned by Hitachi: LJ, [116].
Rosters, supervision, training and supplementary labour
53 The Hitachi Employees worked various rosters depending on the nature of the work they were performing. Those rosters were created by Hitachi and corresponded with other crews on the mine sites. Whilst it was a matter for Hitachi to roster the Hitachi Employees, those rosters were done according to similar scheduling patterns to the mine employees. Accordingly, the Hitachi Employees worked similar rostering arrangements to those of other employees on the mine site: LJ, [126].
54 The Hitachi Employees were ultimately supervised by the Hitachi field services manager or other Hitachi supervisors. However, the employees did have to comply with directions from the mine supervisor and take instructions or seek clarification for particular tasks from the customer on site. There was a degree of collaborative supervision from both the Hitachi supervisor and mine supervisor but ultimately, Hitachi Employees were answerable to Hitachi: LJ, [149]. However, the overlapping supervision revealed a degree of integration between the Hitachi and mine site workforces: LJ, [152].
55 Each of the Hitachi Employees gave evidence that they were required to attend induction and other training at the mine. They also gave evidence that they were required to attend various meetings of the mine site operator (such as pre-start, toolbox, safety, weekly and monthly meetings) and they were required to comply with the safety standards and policies that the mine had in place: LJ, [156] - [157].
56 The Hitachi Employees assisted the mine’s permanent maintenance crew workforce where they required supplementary labour, or provided plant mechanic expertise from time to time. However, the primary judge accepted that the Hitachi Employees would spend the vast majority of their time fulfilling Hitachi’s machine maintenance obligations: LJ, [159].
57 It is against those findings that the primary judge applied her construction of s 4(1) of the Administration Act. It is against those findings that we assess the grounds of appeal.
ARE THE INQUIRIES ON EACH GROUND OF APPEAL CONFINED TO THE CONTRACTUAL TERMS?
58 Hitachi complains on each ground of appeal that in respect of the employment limb, location limb and operational limb, her Honour should have directed each of her inquiries only to the totality of the contractual rights and obligations between Hitachi and each of the Hitachi Employees. In support of that submission, Hitachi relied upon three decisions of the High Court: WorkPac v Rossato (2021) 271 CLR 456; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; and ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254.
59 The primary judge dealt with that issue discretely at LJ [180] – [195]. There her Honour answered the contention that “…the determination [of whether an employee is employed in the black coal mining industry] is confined solely to a consideration of the employees’ contracted terms”. Her Honour concluded that determination was not confined to the contracted terms. Her Honour applied that conclusion to each of the three limbs: see LJ, [182], [226] and [230].
60 It is appropriate to say something briefly about each of the three decisions of the High Court relied upon by Hitachi.
Rossato
61 WorkPac was a labour hire company that provided the services of its employees to firms engaged in mining black coal. Mr Rossato was employed by WorkPac and his services were provided to two black coal mines. WorkPac treated Mr Rossato as a casual employee. Mr Rossato claimed that he was not a casual employee but rather was an employee entitled to be paid annual leave, public holidays, and periods of personal leave and compassionate leave taken during his employment. He claimed those entitlements were due to him under the Fair Work Act and an Enterprise Agreement which governed his employment.
62 A Full Court of this Court held that Mr Rossato was not a casual employee and declared that he was entitled to the payments he claimed. The High Court allowed the appeal to it, declaring Mr Rossato to be a casual employee for the purposes of ss 86 (annual leave), 95 (personal/carer’s leave), and s 106 (compassionate leave). The Fair Work Act did not (at that time) define “casual employee” and defined “employee” by reference to the ordinary meaning of that term: See ss 12 - 15 of the Fair Work Act.
63 In coming to its conclusion the High Court examined what the majority described as “a question as to the character of an employment relationship” between WorkPac and Mr Rossato: see [101] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ. They examined the “contractual arrangements” and the “express terms of the relationship between WorkPac and Mr Rossato” to determine that the “character of [the]… employment relationship” was as a casual employee. They concluded “the contractual arrangements between WorkPac and Mr Rossato did not include a mutual commitment to an ongoing working relationship” and “in carrying out each assignment, Mr Rossato worked as a casual employee”: Rossato, [105] - [106] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ.
Personnel Contracting
64 Personnel Contracting was also a labour hire company. It traded under the name Construct. It engaged workers to supply their labour to builders. Mr McCourt was offered a role with Construct. He signed an agreement with Construct which described him as a “self-employed contractor”. After a number of periods of engagement by Construct, Mr McCourt commenced proceedings alleging that he had not been paid entitlements due to him as an employee of Construct under the Building and Construction General On-site Award 2010. The question in the proceedings was whether Mr McCourt was an employee of Construct for the purposes of the Fair Work Act and whether entitlements arose under that Act and the Award. Section 11 of the Fair Work Act provided that “employer” and “employee” had their ordinary meanings.
65 Again the High Court examined the “contractual arrangements” between the parties to determine the “employment relationship” between Construct and Mr McCourt. The plurality determined that Mr McCourt was an employee of Construct having regard to the right of control which Construct had over Mr McCourt under the terms of the contract (per Kiefel CJ, Keane and Edelman JJ), and having regard to what in fact occurred in the performance of the contract (per Gageler and Gleeson JJ): Personnel Contracting, [122].
Jamsek
66 Mr Jamsek and Mr Whitby were truck drivers. They were initially engaged as employees by companies that were predecessors of ZG Operations. They were then told that they would no longer be employed, and were required to become contractors, purchase their own trucks and contract to carry goods with the companies. They agreed and formed partnerships with their wives for that purpose. Those partnerships then made contracts with the companies for the provision of delivery services. When those contracts were terminated, Mr Jamsek and Mr Whitby commenced proceedings in this Court seeking declarations in respect of statutory entitlements they said were owed to them as employees under the Fair Work Act and superannuation and long service leave legislation.
67 Again the High Court was called on to determine the character of a relationship between two parties. Mr Jamsek and Mr Whitby contended that it was an employment relationship. The plurality determined that Mr Jamsek and Mr Whitby were not employees of the companies but were members of partnerships which carried on the business of providing delivery services to the companies. The plurality held that the character of the relationship between the parties was to be determined by reference to the rights and duties created by the written agreement which comprehensively regulated that relationship: Jamsek, [8] per Kiefel CJ, Keane and Edelman JJ.
The applicability of the High Court trilogy
68 Each of the three High Court decisions examined the relationship and contractual arrangements between two parties. Each of the decisions examined the character of the employment relationship, or whether there existed a particular employment relationship, between those two parties. It was only if that particular employment relationship was established that the claimed entitlements were owing.
69 Both Rossato (at [56]) and Personnel Contracting (at [40]) cited with approval Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 178 [1] where French CJ, Bell and Keane JJ said:
The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment.
In Rossato and Personnel Contracting, the High Court examined the character of the employment relationship substantially by reference to common law principles. Ultimately, each of the decisions determined the character of the employment relationship by reference to the contractual arrangements between the two parties.
70 In reaching her determination about the applicability of the three High Court decisions (at [181]) the primary judge described each of the High Court decisions as “considering anterior questions as to whether a person was an employee or an independent contractor or a ‘casual employee’”. Her Honour described that task as a consideration of “in essence the character of the employment relationship by reference to common law principles” and contrasted that exercise with the “determination of a constructional choice with respect to a statutory phrase arising out of a specific scheme that deployed a jurisprudential history in the determination of whether an employee was employed within the industry which included the manner of contractual performance.” At [182] her Honour concluded that “these cases do not stand for the proposition that an employee may only be employed in the black coal mining industry if their employment contract designates the same.” We agree with her Honour’s conclusion and see no error in it.
71 In its submissions on the appeal, Hitachi complained that by “sidelining the ‘trilogy’ of cases (LJ, [181]) on the basis that they concerned different characterisation questions, the primary judge overlooked their unifying thread”. It said further that “each of those cases analysed different characterisation questions through the common lens of contractual rights and obligations”, and that the “significance of those cases lies in that common lens, not in the particular characterisation question to which that form of analysis was applied, or the particular answer produced in each case”.
72 It is not enough to submit that the three cases had a common lens or a unifying thread. It is necessary to examine the purpose for which the lens was designed and deployed. That the three cases had a common lens does not assist if that lens was deployed in those cases in a vastly different exercise or task. In the High Court decisions the lens was used to determine the employment relationship between two parties. That is not the task in this case. The lens was not a lens to be applied to all situations. It was a lens designed for a particular situation. A situation that is not before the Court in this matter.
73 Where our task is, in the words of the primary judge, the “determination of a constructional choice with respect to a statutory phrase” we approach that exercise consistent with s 15AA of the Acts Interpretation Act 1901 (Cth); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25] – [26]; and SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. That is by reference to text, context and purpose.
74 That being said we accept, as the primary judge did, that the Hitachi Employees’ employment contracts will be relevant to determining whether they are employed in the black coal mining industry: LJ, [183].
NOTICE OF APPEAL GROUND 1 – ARE THE EMPLOYEES EMPLOYED IN THE BLACK COAL MINING INDUSTRY?
Primary judge’s reasons - construction and application of “employed in” (employment limb)
75 At LJ [164] the primary judge outlined the constructional choice she faced with respect to the words “employed in” as they appear in limb (b) of the definition of “eligible employee”. Her Honour described that choice as: (1) construing “the words ‘employed in’ as manifesting a Parliamentary intention that they be given their common and ordinary meaning (that is, ‘occupied in’ or ‘engaged in’) and not a term of art (that is, a reference to the employment relationship specifically)”; or (2) the “words ‘employed in’ may mean that the statutory question is limited to whether, based on an analysis of the terms of the employment contract, including as at the time of entry, the person was ‘employed in’ the ‘black coal mining industry’”.
76 Her Honour noted that on the first approach the contract of employment is relevant but not conclusive to the determination of whether the person is an “eligible employee”. Her Honour also noted that the first approach was the approach taken by White J in Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [219].
77 Before the primary judge, and on the appeal, Hitachi contended for the second construction. It says that the question of coverage is to be answered only by the totality of the rights and obligations established by the contractual terms and that in this case a proper examination of the contractual rights and duties means that the employees were not employed in the black coal mining industry. Coal LSL contends for the first construction.
78 Hitachi accepted on the appeal that the primary judge had “correctly identified the existence and parameters of the constructional choice as to the meaning of the words ‘employed in’”.
79 The primary judge answered the constructional choice before applying her Honour’s construction to the Hitachi Employees. Her Honour concluded that words “employed in” should be given their common and ordinary meaning, namely “occupied in” or “engaged in”. Her Honour did so for the following four reasons:
(a) First, her Honour determined that “employed in” may be construed as manifesting a Parliamentary intention that the phrase is given its common and ordinary meaning. The phrase “employed in” as used in various legislative contexts has been variously adopted by many authorities to be equivalent to “occupied in” or “engaged in”: LJ, [169].
(b) Second, being “employed in” the black coal mining industry does not require that the employee be employed “in black coal mining”. The primary judge accepted that the use of the term “industry” connotes a wider range of activities including the removal of overburden, the processing of black coal in particular situations and the provision of maintenance and equipment services: LJ, [174]. Her Honour relied upon Bis Industries at [217] – [218].
(c) Third, the question of whether a person is “employed in the black coal mining industry” is one of combined law and fact, which involves applying the meaning of the expression discernible from previous decisions, as well as consideration of the character of the employees’ employment having regard to all relevant circumstances: LJ, [176]. Her Honour relied upon Bis Industries at [219].
(d) Fourth, an employee does not need to be “covered” by the Award in order to fall within the definition of “eligible employee”. The coverage provisions under the Award require that the employee fall within certain classifications. Those provisions have not been incorporated into the definition of “eligible employee”: LJ, [178].
80 The primary judge then applied that construction to the duties and arrangements of the Hitachi Employees. Her Honour determined that the Hitachi Employees were employed in the black coal mining industry for the following eight reasons:
(1) The employees’ contracts contained terms that indicated they were employed in the black coal mining industry: LJ, [204];
(2) The employees carried out repair and maintenance work almost exclusively at black coal mining sites: LJ, [213];
(3) The employees occasionally serviced non-Hitachi machinery: LJ, [214];
(4) The employees were working on machinery that was used to move overburden. Transporting overburden has been found to be connected to the black coal mining industry: LJ, [215];
(5) The employees worked at workshops at the mine sites, with employees of the mine operator and used the mine operator’s equipment and consumables: LJ, [216];
(6) The employees worked with a degree of integration with the mine site workforce: LJ, [217];
(7) The employees participated in site inductions, shift pre-start meetings, toolbox talks and safety meetings run by the mine operator: LJ, [218]; and
(8) The employees occasionally worked rosters that corresponded to employees of the mine operator: LJ, [219].
Consideration of Hitachi’s alleged errors on Ground 1 (employment limb)
81 Hitachi in its written and oral submissions submitted that the primary judge erred in six ways in her conclusion that the Hitachi Employees were employed in the black coal mining industry.
82 Each of alleged errors one, two and three of ground 1 are connected to her Honour’s rejection of the applicability of the three decisions of the High Court and the contention that the relevant inquiries should be confined solely to a consideration of the employees’ contracted terms. Error one complains that the constructional choice as to the meaning of the words “employed in” should be construed as referring to “the employment relationship, pursuant to contract”. Error two complains that her Honour wrongly had regard to “post-contractual matters” when she should have limited herself to the “duties that the contract can require of the employee”. Error three complains that the “factual inquiry” engaged in by her Honour should have been limited by the “proper contractual lens”. For the reasons given above, we see no error in her Honour’s rejection of the applicability of the three decisions of the High Court and her Honour’s approach in determining whether an employee is an “eligible employee” by considering all of the surrounding circumstances: LJ, [181] – [182]. In those circumstances we reject those contentions in errors one, two and three of ground 1.
83 Error one of ground 1 also contends for a narrower construction of “employed in” based on text, context and purpose. As to text and context Hitachi raises two matters.
84 First, it says that limb (a) of the definition of “eligible employee’ distinguishes between an employee “employed in” and an employer “engaged in” the black coal mining industry. Therefore it says that had the legislature intended the broader meaning of “employed in” (equating to “engaged in”) it could, and would, have used the words “engaged in”. However, it is explicable that an employer might ordinarily be described as “engaged in” an industry whereas an employee might ordinarily be described as “employed in” an industry. In that way the use of “an employer engaged in” in limb (a) is less telling. We do not consider that textual consideration undermines the primary judge’s constructional considerations at LJ [168] – [178]. There her Honour examined: “employed in” as equivalent to “occupied in” or “engaged in” in various other legislative contexts; the scheme’s operation and purpose; and the breadth of the term “industry”. There was no meaningful attack on those conclusions.
85 Second, it says that a broader construction invites an assessment of where and what duties are actually performed and in that way substantially (or totally) overlaps with the location and operational limbs leaving them little work to do. Therefore it says that such a construction is unlikely. It is possible that Parliament may have contemplated some degree of overlap but, as the primary judge found, a separate and discrete analysis for each limb. In oral submissions Coal LSL accepted that the three limbs might be represented by concentric circles (or the babushka doll analogy), but said that ultimately the definition in limb (b) requires an analysis of all the circumstances. We accept that some overlap may arise between the limbs but that of itself is not a reason to exclude a construction of “employed in” that relies on the ordinary and conventional approach to those words.
86 As to purpose it says that such a scheme requires certainty of application and where a scheme has the potential to turn on daily or weekly changes in arrangements the Scheme would lack that certainty. However a construction restricted to the terms of a contract does not guarantee certainty. Especially where Hitachi accepts that such an approach is not as simple as a contractual designation that an employee is not an eligible employee. That contractual certainty will depend on the whether the matter is addressed in the contract, and if so the level of certainty with which that is done. It may also depend on whether the terms are written or oral. The possibility of uncertainty was rejected by White J in Bis Industries at [263] – [264] in relevantly similar circumstances. The primary judge rejected Hitachi’s arguments about potential uncertainty at LJ [190] – [193] and concluded that such uncertainty was overstated in the circumstances of the Hitachi Employees and on the evidence before her. We do not see any error in the approach and reasoning of the primary judge.
87 Error four of ground 1 complains that the primary judge was wrong to conclude that the Scheme’s application to casual employees and its requirement for monthly assessments necessarily assumes that employees might “dip in and out” of the Scheme based on particular duties on a given shift. The complaint was directed at the primary judge’s response to Hitachi’s submission that the Scheme demands certainty. Her Honour explained (at LJ [187]) that the assessment of eligibility will often be, and was before her Honour, a manageable assessment. Her Honour concluded that “the respondent [Hitachi] is able to identify those of its employees who it has rostered to perform maintenance and repair work on excavators and trucks at black coal mines.” Her Honour then went on (at LJ [190]), in response to Hitachi’s demand for certainty, to conclude that the Scheme assumes an employee might dip in and out of the Scheme. Her Honour supported that conclusion by reference to the eligibility of casual employees and the obligation for monthly assessments. It is true, as Hitachi contends, that there may be reasons unrelated to their duties that casual employees might dip out of the Scheme. It is also true, as Hitachi contends, that a monthly assessment requirement is unsurprising. However, we agree with the primary judge’s conclusions (at LJ [187] and [190] for the reasons given there) and do not consider those complaints materially undermine those conclusions.
88 Error five of ground 1 complains that the primary judge wrongly imported a further element that a contract reach a level of comprehensiveness before it could engage the principles in the three High Court decisions of Rossato, Personnel Contracting and Jamsek. This submission misrepresents her Honour’s conclusion at [190]. Her Honour was there responding to a submission that a focus on contractual rights is the best course to obtain a scheme with certainty. In response to that proposition her Honour stated that such a submission “… assumes contractual certainty which does not apply in this case and is unlikely to apply in most cases”: LJ, [190]. Her Honour identified that the level of certainty derived from the contract depends on the comprehensiveness of the contract. We do not understand her Honour’s statement to be the imposition of threshold requirement before an assessment of eligibility could be limited to the contract of employment. We reject error five of ground 1.
89 Error six of ground 1 assumes that the primary judge was correct to examine matters beyond the contractual rights and obligations and says even so the employees were not employed in the black coal mining industry. The submission does not directly take issue with the primary judge’s conclusions at LJ, [202] - [227]. Those paragraphs include her Honour’s eight reasons for finding the Hitachi Employees were employed in the black coal mining industry (as summarised at [80] above). Rather the submission raises additional matters which it says should have led to the opposite conclusion.
90 Hitachi states that the provision of labour services to clients within the black coal mining industry comprises only 2.6% of Hitachi’s annual revenue. Coal LSL submits, and we accept, that submission is not directly relevant to the enquiry about the status of the Hitachi Employees under limb (b). It does not address the circumstances of the Hitachi Employees.
91 Hitachi then submits that the employees’ contract terms point away from the employees being employed in the black coal mining industry. They say the contracts: do not prescribe conditions specific to work in the black coal mining industry; specify a Hitachi employee as their direct supervisor; designate the normal place of work as the Muswellbrook Branch; and include the maintenance of a range of Hitachi machines, not just those used in black coal mining.
92 As we conclude above, the enquiry in this case is not limited to the terms of the contract. In any event none of these terms prevent a conclusion that the employees work in the coal mining industry. Further, although there are no direct terms that relate to the black coal mining industry, the primary judge correctly identified a number of indicators within the contracts that suggest the employees were employed in the coal mining industry: LJ, [206]. For example, that the Muswellbrook branch serviced predominantly clients in the black coal mining industry, and that Hitachi Employees were members of the Field Services Team which was responsible for servicing Hitachi equipment at customer sites.
93 Lastly (under error 6 of ground 1), Hitachi submits that the rosters developed by Hitachi were different to the normal working hours proscribed under the Scheme. However, the rosters did correspond with other rosters at mine sites (LJ [126]) and were developed by Hitachi according to similar scheduling patterns of mine workers. In any event, this factor does not undermine the primary judge’s conclusions about the phrase “employed in the black coal mining industry”.
94 The matters raised by Hitachi in error six of ground 1 do not disclose error in her Honour’s conclusions at LJ [202] – [227] that the Hitachi Employees are employed in the black coal mining industry.
95 We reject ground 1.
96 We next consider ground 3 (the location limb) before ground 2 (the operational limb). We do so because the location limb follows the employment limb (ground 1 above) in the definition of “eligible employee” in s 4(1) of the Administration Act.
NOTICE OF APPEAL GROUND 3 – WERE THE EMPLOYEES’ CARRIED OUT AT OR ABOUT A PLACE WHERE BLACK COAL IS MINED?
Primary judge’s reasons (location limb)
97 The primary judge determined that the location limb was satisfied where the work carried out by the Hitachi Employees “formed part of their assigned duties”. Whilst the contracts required the Hitachi Employees to “work at other locations [beyond the Branch Workshop] in accordance with the needs of the business”, her Honour concluded that “it was uncontroversial that the work was carried out at or about a place where back coal is mined, given it was carried out at black coal mines (on the mine site, [mine] workshop or the mine pit).” Her Honour noted that Hitachi had accepted before her that “a substantial proportion of the employees’ day-to-day tasks were ‘in fact’ carried [out] in, at or about black coal mines”: LJ, [223]. Her Honour drew support for her conclusions from White J in Bis Industries at [239], [242] - [244].
98 The primary judge otherwise rejected Hitachi’s submissions that the location limb was to be determined solely by what is contained in the employees’ contracts. Rather, her Honour concluded that the answer to the location limb “is a question of fact to be determined by the circumstances, including but not limited to what is contained in [the contracts]”: LJ, [226]. Her Honour said, “It is plain that the limb requires a determination of where in fact the duties were carried out rather than to the place or places at which, the contract required, that those duties may be carried out”: LJ, [226]. Her Honour was satisfied that the location limb was established.
Consideration of Hitachi’s alleged errors on Ground 3 (location limb)
99 Hitachi complains that it was erroneous of the primary judge to reach her conclusion based on the consideration that a substantial proportion of the Hitachi Employees’ day to day tasks were in fact carried out at or about black coal mines, when the “proper inquiry” should have been “directed toward the full scope of duties the parties agreed could be performed.” For reasons already explained, we see no error in her Honour’s rejection of the applicability of the three decisions of the High Court (Rossato, Personnel Contracting and Jamsek) and her Honour’s approach in assessing that the substantial proportion of the employees’ tasks were in fact carried out at or about black coal mines.
100 Hitachi says further that the primary judge gave no (or inadequate) weight to the substantial identity of the roles of the Hitachi Employees, with other Hitachi Field Services team members, working at or around iron ore sites in Western Australia or on civil construction projects in Melbourne. That submission does not sit comfortably with the submission that the primary judge should have confined her examination to the contractual duties of the Hitachi Employees. Hitachi urged the primary judge to confine her inquiries to the terms of the contracts of the Hitachi Employees, yet also complained that her Honour did not adequately weigh the terms of the contracts for other irrelevant employees so as to construe those terms. In any event given that we agree that her Honour was not confined to the terms of the contracts, the Western Australian or Victorian contracts of other employees, not the subject of this proceeding, do not materially affect our agreement with her Honours conclusions.
101 For those reasons we reject ground 3.
NOTICE OF APPEAL GROUND 2 – ARE THE EMPLOYEES’ DUTIES DIRECTLY CONNECTED WITH THE DAY TO DAY OPERATION OF A BLACK COAL MINE?
Primary judge’s reasons (operational limb)
102 The primary judge addressed the constructional issues relating to the question of whether the Hitachi Employees’ duties were directly connected with the day to day operation of a black coal mine at LJ [179] – [195].
103 The primary judge accepted, and adopted, the approach of White J in Bis Industries. Namely, the determination of the operational limb requires a consideration of three matters: the concept of “duties”, “direct connection” and the “day to day operation of a black coal mine”. Duties comprise all the functions and proper actions required of the employees under their contracts of employment and under the applicable statutes and regulations: Bis Industries, [239], LJ, [179]. Direct connection encompasses activities not limited to the extraction of coal from the seam, and requires a particular form of relationship between the employees’ duties and the day to day operation where that connection should be direct or immediate: Bis Industries,[252], LJ, [179]. Day to Day indicates that the connection must be daily, regular or routine activities of the coal mine, but the activities do not need to be carried out on a day to day basis and include activities that do not involve the actual extraction or mining of black coal: Bis Industries at [251], [253], LJ, [179].
104 The primary judge then applied that construction (together with her conclusion that the inquiry was not confined solely to the employees’ contracted terms) to the facts at LJ [228] – [239]. Her Honour concluded that the duties of the Hitachi Employees were directly connected to the day to day operation of a black coal mine. Her Honour said that those employees work on a mine, side-by-side with mine employees, to maintain and repair equipment for the purpose of removing and transporting overburden (and at times, coal itself), as part of the day to day operations of the mine: LJ, [238].
Consideration of Hitachi’s alleged errors on Ground 2 (operational limb)
105 As in the other grounds of appeal, Hitachi complains that the primary judge’s examination of the operational limb was erroneous because her Honour examined “post-formation conduct” rather than focusing on the “contractual bargain.” Again for the reasons set out above, we see no error in her Honour’s assessment of this limb by a consideration of matters outside of the “contractual bargain.”
106 Alternatively, Hitachi contended that “even if one focuses upon the work actually performed rather than the work contractually agreed, the requisite direct connection is absent.” First, Hitachi complained that the primary judge was wrong to conclude that because the relevant machinery maintained by the Hitachi Employees was used to remove overburden (rather than black coal) from the mine, that maintenance function was directly connected because without the removal of overburden the black coal would not be exposed and capable of extraction. Hitachi says that form of ‘but for’ reasoning is wrong. Second, it says even accepting that the removal of overburden is directly connected to the day to day operation of the mine, the primary judge was wrong to rely upon Federated Engine Drivers & Firemen’s Association of Australasia v Roche Bros (Queensland) Pty Limited [1990] ACIndT 4388 at 11 and its circumstances are on all fours with The King v Central Reference Board; Ex Parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123.
107 It is appropriate to say something briefly about Thiess and the other decisions most pertinent to this ground, namely, Bis Industries, Roche Bros and Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2023] FCA 1515. Those cases informed the debate about the eligible employee issue, and particularly the operational limb.
The King v Central Reference Board; Ex Parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 129-139
108 Thiess Bros was engaged to remove over-burden and coal from a coal mine in New South Wales. It established a workshop at, and alongside, the coal mine. The Thiess Bros workshop carried out maintenance and running repairs of the machinery used in the coal mine. The major repairs after breakdown of machinery were sent to engineering firms outside of the mine. Thiess Bros arranged with Thiess Repairs for Thiess Repairs to do the major repair and overhaul of equipment used by Thiess Bros. Thiess Repairs established itself three-quarters of a mile from the mine. Thiess Repairs did not work exclusively for Thiess Bros, although over ninety percent of its work was provided by Thiess Bros.
109 The proceeding was concerned with Thiess Repairs and its employee, however, there was no dispute that Thiess Bros, and its employees, were engaged in the coal mining industry. Latham CJ said, “The men employed in that [Thiess Bros] workshop are part of the labour force actually employed at the open cut, and it appears to be clear that [Thiess Bros] … and its employees working on the open cut and in that workshop (which is entirely under the control of the company and which is used only for the purpose of running repairs to the machinery used in the mining operations) are all engaged in the coal-mining industry.” (emphasis added): Thiess, 131.
110 When an employee of Thiess Repairs was dismissed, and claimed that his dismissal was unwarranted, his claim was heard by the Central Reference Board. The Board, a tribunal for employees in the coal mining industry, ordered reinstatement. Thiess Repairs argued that the Board did not have jurisdiction to hear the claim because it was limited to disputes in the coal mining industry. Thiess Repairs said it was not engaged in the coal mining industry and that the employee was not employed in the coal mining industry.
111 The majority of Latham CJ, Rich and Starke JJ, in separate judgments, found that Thiess Repairs was not engaged in the coal mining industry and its employees were not employed in the coal mining industry. Latham CJ said that whether or not an employee was employed in the coal mining industry, “was a question of fact depending upon all the circumstances of the case”: Thiess, 130.
112 Latham CJ emphasised that Thiess Repairs was an enterprise that was “not engaged in coal mining, but is an engineering company carrying on general work”, and its “operations are separate from and different in kind from the operations carried on at the open cut.”: Thiess, 135.
113 The minority of Dixon and McTiernan JJ found that Thiess Repairs was engaged in the coal mining industry and that the employee was employed in the coal mining industry. Dixon J said he was not satisfied that the major repair and overhaul of the machinery was conducted “otherwise than as an integral part of the mining undertaking”: see Thiess at 141. His Honour noted that the case was “very much upon the border line”: Thiess, 139.
114 As set out above, Hitachi says this case is on all fours with Thiess Repairs. Coal LSL drew attention to Latham CJ’s comments on the employees of Thiess Bros who made repairs to machinery in a workshop alongside the mine and who he said were engaged in the coal mining industry.
Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374
115 Bis Industries provided services to the mining industry. Bis employed workers within its “Field Services Division” whose principal tasks were to service, maintain and repair the mining equipment owned by its clients. These employees were called “Field Service Representatives” (FSRs). A number of these FSRs were employed to work at black coal mines. The Construction, Forestry, Maritime, Mining and Energy Union contended that three FSRs who worked at black coal mines were covered by the Black Coal Mining Industry Award 2010. Bis submitted these FSRs were not “coal mining employees” and sought a declaration to that effect. The definition of “coal mining employees” was relevantly the same as “eligible employees” in this proceeding.
116 White J held that the three employees were “eligible employees” as defined by the Award. His Honour determined that the relevant test for whether the employees were employed in the black coal mining industry was a “question of combined law and fact”: Bis Industries, [219], [316]. White J concluded that given the nature of the work performed by the employees and their level of integration with the employees of the mine, the employees were “employed in the black coal mining industry”: Bis Industries, [215] - [237]. His Honour found that the employees carried out their work in an above ground workshop and from time to time underground, meaning that the employees carried out their duties “at or about a place at which black coal is mined”: Bis Industries, [246]. White J was satisfied that given the employees conducted mandatory daily inspections of equipment, repaired breakdowns in the mine and completed scheduled maintenance which ensured “the continued availability of the equipment”, the duties of the employees were “directly connected” to the “day to day operation of a black coal mine”: Bis Industries, [254] – [257].
117 The primary judge, in forming the view that the duties of the Hitachi Employees were directly connected with the day to day operation of a black coal mine, referred to and relied upon White J’s consideration of “duties”, “direct connection” and “day to day operation of a black coal mine”: see LJ, [179].
Federated Engine Drivers & Firemen’s Association of Australasia v Roche Bros (Queensland) Pty Limited [1990] ACIndT 4388 at 11
118 Roche Bros was decided by the Coal Industry Tribunal. The Federated Engine Drivers & Firemen’s Association of Australasia served a log of claims on 12 employers in the New South Wales and Queensland coal mining industry (including Roche Bros). Those employers said the Coal Industry Tribunal did not have jurisdiction to determine any “dispute” because the relevant relationships between them and their employees were not in the coal mining industry. Roche Bros had a contract with Newlands Coal Pty Limited to remove overburden from a coal mine. The Tribunal determined that the function of removing overburden was “an integral part of open cut coal mining” and therefore the Tribunal found that “the employer/employee relationship between the company and its employees is within the coal mining industry”: Roche Bros, [11].
Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2023] FCA 1515
119 The question in Orica was whether shotfirers who were employed by Orica at open cut black coal mines were “eligible employees” pursuant to s 4(1) of the Administration Act. Orica conducted a business including the supply of shotfiring and explosive services for a number of black coal mines in New South Wales and Queensland. Relevantly, it was agreed that work of the shotfirers was “integral” to the operation of the black coal mines (see Orica, [18]). Perram J found that there could be “no shadow of a doubt” that the work was “directly connected” with the extraction, mining and processing of black coal: Orica, [18] - [19].
120 Orica post-dated the liability judgment in this matter and is the subject of an appeal in this Court.
Consideration of alleged errors on directly connected
121 As we say above, Hitachi’s first error under ground 3 is the complaint that her Honour examined “post-formation conduct” rather than focusing on the “contractual bargain”. We reject that for the reasons set out above.
122 Hitachi’s first alleged alternative error is that the primary judge was wrong to conclude that because the relevant machinery maintained by the Hitachi Employees was used to remove overburden (rather than black coal) that the maintenance function was directly connected to the day to day operations of the black coal mine.
123 Her Honour approached that matter first by reasoning that without the removal of overburden the black coal would not be exposed and capable of extraction and second by reliance on similar conclusions in Bis Industries and Roche Bros. Hitachi complains that her Honour’s reasoning was a form of ‘but for’ reasoning and is wrong. Her Honour relied in part on her earlier conclusion that the day to day operation of a black coal mine is broader than the extraction, processing and transporting of coal: LJ, [236]. That conclusion was directly consistent with White J in Bis Industries where his Honour said (at [258] - [259]) it would be fallacious to understand the day to day operation of a coal mine as involving only those activities (of extraction, processing and transporting of coal). It does not follow that her Honour’s analysis was a ‘but for’ analysis. Her Honour did not simply reason that but for the removal of overburden you cannot remove coal; rather her Honour reasoned that the day to day operation of a black coal mine should be construed widely enough to include the removal of coal and the removal of overburden. We see no error in the primary judge approaching “day to day operations of a black coal mine” in that way, just as we see no error in White J approaching it in that same way in Bis Industries.
124 Hitachi’s second alleged alternative error is that the primary judge was wrong to rely on Roche Bros because the employees in that case actually removed overburden rather than maintaining machinery that removed overburden. Hitachi’s submission is an unfair assessment of her Honour’s reasoning. At LJ [236] her Honour said that overburden “removal has been previously expressed to be integral to the day to day operations of an open cut mine: Roche Bros at 11”. Her Honour did not describe Roche Bros as directly analogous to the Hitachi Employees, rather her Honour relied upon it to support her view about the breadth of the day to day operations of a black coal mine. Accepting that the Roche Bros employees removed overburden, whereas the Hitachi Employees maintained machinery that removed overburden, the important consideration is that the day to day operation of a coal mine should be construed broadly so as to include the removal of overburden and activities facilitating its removal. We agree with that conclusion for the reasons given by the primary judge at LJ [215].
125 Hitachi’s third alleged alternative error is that the present circumstances are on all fours with Thiess. A number of considerations are relevant to that assessment. First, Thiess Repairs operated from a workshop outside of the mine and not exclusively (although mostly) for Thiess Bros. Latham CJ considered their operations as separate from and different in kind from the operations carried on at the open cut mine. There was very little dispute that the Hitachi Employees carried out their work at the coal mine. Thiess Repairs employees did not have the level of integration with other mine workers as the Hitachi Employees. That matter was central to White J’s analysis in Bis Industries: see [229] and [233] – [237].
126 Second and related, like Thiess Bros (whose employees were taken to be engaged in the mining industry) the Hitachi Employees worked on a mine, side-by-side with mine employees, to repair equipment in a workshop at the mine.
127 Third, as Latham CJ made clear, the determination in Thiess was a question of fact depending upon all the circumstances of the case. The matter was finely balanced and Dixon J (in minority) considered the answer “very much upon the border line”: Thiess, 139.
128 Fourth, Thiess should not be assessed in isolation from the other cases relied upon by the parties and the primary judge. The primary judge drew most directly from White J’s analysis in Bis Industries of similar circumstances and a relevantly identical definition of eligible employee. Hitachi did not meaningfully distinguish the circumstances in Bis Industries (save for efforts to argue the distinguishing features of the contracts of employment).
129 Nothing in Thiess compels a conclusion in this matter that the Hitachi Employees are not eligible employees.
130 We otherwise see no error in the primary judge’s reasoning and construction of the operational limb or her Honour’s application of that construction to the facts and circumstances of the Hitachi Employees.
131 However, Hitachi also raised (under the operational limb and more generally) some particular consequences of the primary judge’s construction. We address that matter below before concluding on ground 2.
Accruing entitlements under the Scheme and under other sources
132 In oral exchanges the parties addressed what was described as the “five and five example”. The example hypothesised that an employee who works for the same employer for ten years, five of which fulfilled the definition of eligible employee and five of which did not (depending on the duties, directions and location of the employee), would result in the employee not accruing any long service leave under the Scheme or under New South Wales long service leave legislation.
133 It was said that those negative consequences of the primary judge’s construction, where the scheme is for the benefit of those employees, counted against that construction. Specifically the exchanges addressed s 15AA of the Acts Interpretation Act 1901 (Cth) which directs preference be given to an interpretation that would best achieve the purpose or object of the Act; a purpose said to be for the benefit of those accruing the leave entitlement. Thus, it was said that a construction that might result in no long service leave is a construction inconsistent with that purpose and to be rejected.
134 An important consideration is whether Hitachi’s construction remedies the problem. A number of issues arise. First, it is undoubtedly possible that an employee might still be in the black coal mining industry for some periods and out for others under a construction that is limited to the terms of the contract of employment. Second, for the contract to create some additional certainty its terms would need to establish that certainty, that may not always be the case. Third, the issue only requires certainty where the employee potentially moves in and out of the scheme. That is not the case for any of the Hitachi Employees and there was no evidence before us or the primary judge about such employees. The issue is a hypothetical one that did not, and does not arise, in the circumstances of the Hitachi Employees. Whilst the consequences of competing constructions may, in some circumstances, be considered, it is not clear, on the evidence before us, that Hitachi’s approach (by reference only to the terms of the contracts) so clearly produces a more convenient operation: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 (Mason and Wilson JJ) at 321.
135 For all of those reasons we reject ground 2.
NOTICE OF CONTENTION
136 As we say above, Coal LSL contends that the orders of the primary judge (on the eligible employee issue) should be affirmed on grounds other than those relied upon by the primary judge. First, it says that the primary judge should have found that the Hitachi Employees were eligible employees within the meaning of limb (a), by reason that Hitachi was an employer engaged in the black coal mining industry. Second, it says if the determination of whether the Hitachi Employees were eligible employees within s 4(1) of the Administration Act is not confined to a consideration of the employees’ contracted terms, then the primary judge should still have determined that the Hitachi Employees were eligible employees within the meaning of s 4(1) of the Administration Act.
137 Where we have concluded that the primary judge was correct to reject the submission that the determination of whether the Hitachi Employees were eligible employees is not confined to a consideration of the employees’ contracted terms, there is no utility in assessing the outcome if that were not so. Also, where we have determined, consistent with the primary judge, that the Hitachi Employees were eligible employees with the meaning of s 4(1)(b) of the Administration Act, we do not consider it necessary to determine whether those employees were eligible employees within s 4(1)(a).
THE LIMITATION ISSUE
138 At first instance, the unpaid levies were alleged to relate to periods of employment dating back to April 2010 (in the case of Mr Garland and Mr Cooper), January 2011 (in the case of Mr Gee), and March 2014 (in the case of Mr Stair). Coal LSL’s originating application was filed in the NSW District Registry on 20 August 2021.
139 Section 14 and s 18 of the State Limitation Act relevantly provide:
14 General
(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims—
…
(d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
(2) This section does not apply to—
(a) a cause of action to which section 19 applies, or
(b) a cause of action for contribution to which section 26 applies.
(3) For the purposes of paragraph (d) of subsection (1), enactment includes not only an enactment of New South Wales but also an enactment of the Imperial Parliament, an enactment of another State of the Commonwealth, an enactment of the Commonwealth, an enactment of a Territory of the Commonwealth and an enactment of any other country.
…
18 Penalty and forfeiture
(1) An action on a cause of action to recover a penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of an enactment, is not maintainable if brought after the expiration of a limitation period of two years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.
(2) In this section penalty does not include a fine to which a person is liable on conviction for a criminal offence.
140 Apart from the limitation in s 18(2), the word “penalty” is not defined in the State Limitation Act.
141 Section 10 provides:
10 The Crown
(1) Subject to subsections (3) and (4), this Act binds the Crown and the Crown has the benefit of this Act.
(2) For the purposes of this Act an action by an officer of the Crown as such or a person acting on behalf of the Crown is an action by the Crown.
(3) This Act does not apply to an action by the Crown—
(a) for the recovery of a tax or duty or of interest on a tax or duty, or
(b) in respect of the forfeiture of a ship.
(4) This Act does not affect the prerogative right of the Crown to gold and silver.
142 Under s 11, the word “Crown” is defined to include “not only the Crown in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities” (emphasis added).
143 Section 2 of the State Limitation Act is as follows:
2 Construction
This Act is to be read and construed subject to the Commonwealth of Australia Constitution Act and so as not to exceed the legislative power of the State, to the intent that where any provision of this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application of the provision to other persons or circumstances is not to be affected.
144 Part IX of the Judiciary Act 1903 (Cth) is headed “Suits by and against the Commonwealth and the States”. Section 64 (contained in Pt IX) provides that “[i]n any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.”
145 It is common ground that Coal LSL’s claim involved the exercise of federal jurisdiction. The applicable law in such cases include State laws that apply of their own force, as well as State laws that apply by virtue of s 79(1) of the Judiciary Act. It provides:
State or Territory laws to govern where applicable
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
146 The primary judge exercised federal jurisdiction in the State of New South Wales, being the State in which the proceeding was commenced: Judiciary Act, s 79(1A)(b)(ii). No party submitted that the law of any other State could apply, whether by its own force or by the operation of s 79 of the Judiciary Act.
Disputes on the pleadings
147 By its amended statement of claim (ASOC), Coal LSL alleged that Hitachi was liable to pay levies under s 4 of the Collection Act and additional levies under s 7 as debts due to the Commonwealth under s 9 of that Act: ASOC [44] (Mr Garland); ASOC [55] (Mr Gee); [69] (Mr Stair); [79] (Mr Cooper).
148 By its defence, Hitachi denied that the debts arose for reasons dealt with in connection with the first three grounds of appeal. Alternatively, it pleaded that if Hitachi was liable to pay an outstanding levy, Coal LSL could only recover those outstanding levies that accrued within six years prior to the filing of the originating application because of the operation of s 14(1)(d) of the State Limitation Act, as picked up and applied as a “surrogate Federal law” by operation of s 64 and s 79 of the Judiciary Act: Defence [44(b)], [55(b)], [69(b)], [79(b)].
149 Hitachi pleaded no reliance on s 18 of the State Limitation Act, which provides for a two year limitation period in respect of causes of action for the recovery of a “penalty … recoverable by virtue of an enactment”: State Limitation Act, s 18(1).
150 In its reply, Coal LSL alleged that s 14(1)(d) of the State Limitation Act is not picked up and applied as a surrogate federal law under either s 64 or s 79 of the Judiciary Act because the Collection Act contained a scheme for the collection and recovery of levies and additional levies that was “complete on its face and covering the field and leaving no room for the importation or application of s 14(1)(d) of the [Limitation Act] and/or prevails to the extent of any alleged inconsistency”.
151 Alternatively, Coal LSL alleged that s 14(1)(d) of the State Limitation Act did not apply as its application was excluded by s 10(3) because the levy was a “tax”. It further alleged that s 14 of the State Limitation Act did not apply to “recovery of additional levy by way of penalty (pursuant to s 18 of that Act)”.
152 The reply was curious. Hitachi had not alleged that Coal LSL’s cause of action was one to which the shorter limitation period in s 18 of the State Limitation Act applied. Its defence was that the cause of action was limited in time by six years under s 14, not two years under s 18. Nonetheless, as the trial progressed it became apparent that Hitachi would seek to limit Coal LSL’s claim in accordance with s 18 of the State Limitation Act if the additional levy was found to be a “penalty”, and that was the basis upon which relief on this appeal was sought.
Reasons of the primary judge
153 The primary judge observed that the legislation constituting the Scheme did not expressly limit the time by which a suit for the recovery of levies or additional levies owing under the Scheme must be commenced. To the extent that Coal LSL sought the imposition of civil penalties, the action was subject to a six year limit contained in s 82(2) of the Regulatory Powers Act, which applied by virtue of s 13A of the Collection Act and s 49A of the Administration Act.
154 The primary judge said that Hitachi had not made submissions elucidating its pleaded reliance on s 79 of the Judiciary Act as the mechanism by which s 14 of the State Limitation Act could apply: LJ, [254]. Her Honour said that she accepted the submissions of Coal LSL that s 79 may operate in combination with s 64 to “pick up” limitation laws and that, according to the approach taken by the High Court “s 64 and not s 79(1) controls the question as to whether or not a State limitation law applies” to a Commonwealth entity. That approach, her Honour said, was applied by the High Court in Maguire v Simpson (1977) 139 CLR 362 (at 377) and Deputy Federal Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 with differing outcomes: LJ, [257], [258]. Moreover, her Honour said that in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 (at [36]) and Northern Territory v GPAO (1999) 196 CLR 553 (at [38]), the High Court had determined that s 79(1) could not operate because of the operation of s 64. The primary judge concluded that a State or Territory limitation law would not be picked up by s 79(1) of the Judiciary Act in a suit for the recovery of the levy, and that s 64 was controlling on the question of whether s 14 of the State Limitation Act applied: LJ, [259].
155 In addressing that question, the primary judge said that s 64 could not be construed as intending to indirectly apply the provisions of a State law to circumstances where the application of the State law would be invalidated by reason of inconsistency with a law of the Commonwealth under s 109 of the Constitution: LJ, [260] (citing Moorebank (at [63]) and Dao v Australian Postal Commission (1987) 162 CLR 317 (at 331 – 332)).
156 The primary judge summarised the facts and outcome in Moorebank (considered below) and identified “marked similarities” between that case and the present. Her Honour placed particular emphasis on the discretion conferred on Coal LSL under s 6 of the Collection Act to extend the time by which a levy must be paid, concluding that the State Limitation Act would “intrude on the operation of the Scheme”. That was because if Coal LSL granted an extension of time for payment of the levy to a date after expiry of the limitation period, there would be a bar on recovery: LJ, [268].
157 The primary judge went on to consider Hitachi’s submissions about the simplicity of the Scheme for the collection of levies, but said that that simplicity did not of itself preclude a finding that Parliament intended the Scheme to “operate exclusively to cover the field”: LJ, [270]. Her Honour continued:
271 I am of the view that the provisions of the Collection Act do, in their terms, cover the field and do comprise a comprehensive code. I accept the applicant’s submission that while the regime may not involve the intricacies of other Federal tax statutes, this does not mean it lacks comprehensiveness nor that the analysis in Moorebank is inapplicable.
272 The regime provides for:
(a) the setting of a levy (ss 4 – 6 of the Levy Act);
(b) the levy being calculated based on the eligible wages of eligible employees (s 3B of the Collection Act);
(c) the levy being payable by the employers of the eligible employees (ss 4 and 6 of the Levy Act), on a monthly basis (s 4 of the Collection Act), together with the requirement to make ‘returns’ monthly, and to provide audited reports annually (ss 5 and 10 of the Collection Act);
(d) the applicant being empowered to extend the time for payment of an amount of levy, or to permit levy to be paid by instalments (s 6 of the Collection Act);
(e) the applicant being empowered to seek an audited report of accounts (ss 10, 10A and 10B of the Collection Act), sue for recovery of unpaid levy (ss 9(2) and 11(1)(d) of the Collection Act), and also to seek civil penalties for non-compliance (s 13A of the Collection Act, s 49A of the Administration Act);
(f) the applicant being empowered to make compulsory enquiries to determine compliance with the regime (s 52A of the Administration Act) and the Commissioner of Taxation being similarly empowered (ss 12 and 13 of the Collection Act); and
(g) civil penalties being enforceable under Part 4 of the Regulatory Powers Act (s 13A of the Collection Act, s 49A of the Administration Act), where s 82(2) of Part 4 of that legislation provides that an application for civil penalty is to be made within six years of the alleged contravention.
158 The primary judge went on to reject Hitachi’s submissions that there were other distinguishing features between the Scheme and the regime considered by the High Court in Moorebank. In addition, she noted again that Parliament had seen fit to incorporate a limitation of time for suits seeking orders for the imposition of civil penalties by incorporation of the Regulatory Powers Act. It mattered not, she said, that that limitation arose under the provision of another enactment, as it was nonetheless an indication that Parliament had turned its mind to the question of limitation periods, and the Regulatory Powers Act contained provisions that had previously been directly enacted within the Scheme: LJ, [275].
159 The primary judge concluded that the Scheme therefore covered the field for the purposes of applying s 109 of the Constitution and that s 14 of the State Limitation Act could not be picked up because it was inconsistent with a federal law: LJ, [276].
160 In light of that conclusion, it was unnecessary for the primary judge to consider Coal LSL’s alternative argument that s 14 of the State Limitation Act could not apply because of the exception contained in s 10(3) relating to actions by the Crown for the recovery of (relevantly) a tax. On that topic, the primary judge reasoned as follows:
(1) As determined by the Full Court in Coal Mining Industry (Long Service Leave Funding) Corporation v Commissioner of Taxation (Cth) (1999) 85 FCR 416 (Coal LSL v Commr Taxation); the Collection Act was supported by s 82 of the Constitution, being the legislative competence of the Parliament to make laws in relation to taxation, and the collection of the levy was a delegation of the Commonwealth’s tax collection role. However, the issue to be determined in that case was whether the applicant was a public authority, and the question of whether the levy was a tax was not a specific issue that needed to be decided.
(2) Other cases considered the features of payments that assisted in their characterisation as a tax. For example, in Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263, Latham CJ (at 276) described a levy there in issue as a tax because it was:
… a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered.
(3) However, as Gaudron and Hayne JJ cautioned in Luton v Lessels (2002) 210 CLR 333 (at [10]), the presence or absence of features of that kind is not determinative. For example, in Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2011) 244 CLR 97, a superannuation guarantee charge was characterised as a tax notwithstanding that it was not imposed primarily for a revenue raising purpose.
(4) It was clear that the Scheme served a public purpose relating to the maintenance of an industry producing an important commodity (Coal LSL v Commr Taxation, [2] and [22]), and the enactment of the Scheme in 1992 served the objective of ensuring that the then unfunded liability for long service leave was accounted for without imposing an unreasonable burden on the industry. As identified in earlier authorities, a public purpose of the Scheme was the retention of labour, including by removing disincentives for employers to employ people with previous experience in the industry.
(5) The levy was to be distinguished from mechanisms for the enforcement of a pre-existing private liability: Luton, [14].
(6) Even if a narrow definition of public purpose (as opposed to the wider public interest) were employed, the levy would meet the description.
(7) The levy is a debt that is due to the Commonwealth and when collected it is placed in the Consolidated Revenue Fund (appropriations then being made out of the Consolidated Revenue Fund to the Fund established under s 44 of the Administration Act). Whilst that was not decisive, it supported a conclusion that the levy was exacted for a public purpose.
(8) Whilst the existence of a revenue raising objective was not a universal determinative feature, its absence will often be significant. As Gordon J (writing extra-judicially) explained, “the importance of a legislative objective to raise revenue is not without some controversy”: Gordon J, “The Commonwealth’s taxing power and its limits - Are we there yet?” (2013) 36(3) Melbourne University Law Review 1037.
(9) As to Hitachi’s submission that the levy involved inter partes payment obligations: LJ, [304]:
Whilst this is strictly the case, this case is very different from Luton, where the payment related to a ‘distinctly personal liability’ arising out of the natural and moral obligation of a parent to support a child, in the form of a debt payable by the liable parent to the eligible carer. By contrast here, the levy is imposed on an employer of eligible employees at the relevant time, not because it is that employer (who is liable to pay the levy) who will ultimately hold the liability to pay out the entirety of those eligible employees’ long service leave entitlements. Nor is there any connection between what the employer pays the employee (for which reimbursement will be made), and the contribution made by that particular employer on the eligible wages of that specific eligible employee. The concept of accrual of leave (and payment once leave has accrued) is conceptually separate in the Scheme from the liability of an employer to pay the levy – there is no statutory link between the two concepts.
(10) Hitachi had overstated concerns that the Scheme exacted a payment that was arbitrary and capricious in nature which was anathema to its characterisation as a tax.
(11) The levy was not akin to a fee for service as Hitachi had submitted. Hitachi had not identified what the “service” was, nor that there was a sufficient relationship between the liability to pay the charge and the provision of services: LJ, [311]:
… As submitted by [Coal LSL], here there is a collection of a 2.0% levy on eligible wages. Ultimately, some of those funds are used to fund long service leave entitlements to employees, but that is a contingency which may never arise, and even if it does arise, may arise with respect to an employer different to the one that made the contribution, or one who only made a small contribution. …
161 The primary judge went on to conclude that the word “Crown” in s 10(3) of the State Limitation Act must include the Crown in right of the Commonwealth and so Coal LSL met the description of the “Crown” within the meaning of s 10(3): LJ, [313] – [340]. Her Honour said: LJ, [337]:
By virtue of s 11(1)(d) of the Collection Act, [Coal LSL] may sue to recover levy and additional levy. It does so because its function is also to receive payments of levy and additional levy on behalf of the Commonwealth: ss 11(1)(b)–(c) of the Collection Act. As explained above, those are debts due to the Commonwealth, to be understood as monies due to be received by the Executive of the Commonwealth under s 81 of the Constitution. It follows that when the applicant sues for recovery of levy and additional levy, it is doing so on behalf of the Executive of the Commonwealth, or put differently, ‘the Crown in right of the Commonwealth, in which the executive power is vested’.
162 The primary judge rejected Hitachi’s argument that Coal LSL was an agent of the Commonwealth that is not entitled to Crown immunity. Questions of Crown immunity, her Honour said, were irrelevant to the proper construction of s 10(3) of the State Limitation Act.
163 As to s 18 of the State Limitation Act, the primary judge considered that its application depended on two questions: first, whether the additional levy constituted a “penalty” and secondly, whether a Commonwealth law is an “enactment” within the meaning of s 18. That analysis occurred in a context where there was no definition for either word contained in the State Limitation Act. The definition of the word “enactment” contained in s 14(1)(d) was not replicated in s 18.
164 The primary judge said that the correct constructional approach was that discussed in Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd (2012) 209 FCR 428. North and Flick JJ there identified three reasons why the word “enactment” when used in s 18(1) was confined to an enactment passed by the Parliament of New South Wales, summarised by the primary judge (at LJ [345]) as follows:
… First, the operation of the general rule of construction requires an interpretation which restrains the general words so that they would not apply to Federal proceedings; secondly, where there is a legislative intention to the contrary, the legislature must have provided so using express words, as in s 14(3); thirdly, the conferral by the Commonwealth Parliament of ‘standing’ under the applicable Federal law to specified persons to seek civil remedies and to order a ‘pecuniary penalty’ ‘sits uncomfortably’ with any conclusion that a State legislature may impose a limit upon the time within which this Court may exercise that power. …
165 The primary judge rejected Hitachi’s submissions that the present case was distinguishable and that more recent judgments of the High Court in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 undermined the reasoning of the Full Court in Toyota Material Handling.
166 Having concluded that s 18 of the State Limitation Act did not apply to a penalty recoverable under a Commonwealth enactment, the primary judge considered it unnecessary to substantively determine whether an additional levy payable under s 7 of the Collection Act constituted a penalty at all, but said that she would answer the question in the affirmative if it were necessary to decide. That was because it was clear to her Honour that the additional levy was not akin to interest but rather was intended to have a deterrent or punitive effect: LJ, [353].
167 Lastly, the primary judge noted that if the additional levy did not meet the description of a “penalty” for the purposes of s 18 of the Limitation Act, it appeared to be arguable that it would meet the description of “interest on tax” and so would be caught by the exclusionary effect of s 10(3) in any event.
Grounds of appeal and alternative contentions
168 Grounds 4 and 5 of the Further Amended Notice of Appeal filed on 23 May 2024 allege the following alternative errors:
4. In the alternative to grounds 1-3 above, the primary judge erred in concluding (at LJ[260]-[261]) that s 14(1)(d) of the Limitation Act 1969 (NSW) (the Limitation Act) did not apply to the Applicant’s claim as a surrogate federal law picked up and applied to the Respondent by operation of ss 79 and/or 64 of the Judiciary Act 1903 (Cth) (Judiciary Act).
PARTICULARS
AA. The primary judge erred in concluding (at LJ[256]-[259]) that the question of whether a State limitation law applies to the Commonwealth in a proceeding involving the exercise of federal jurisdiction is controlled by s 64 of the Judiciary Act alone, to the exclusion of s 79 of the Judiciary Act.
A. The primary judge erred in concluding (at LJ[263](a), LJ[271] and LJ[276]) that the provisions of the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth) (the Collection Act) ‘cover the field’ so as to exclude the application of s 14(1)(d) of the Limitation Act by operation of ss 64 and/or 79 of the Judiciary Act.
B. The primary judge erred in concluding (at LJ[263](b)(ii), LJ[288] and LJ[312]) that the levy imposed by the Scheme was properly characterised as a tax for the purposes of s 10(3)(a) of the Limitation Act.
C. The primary judge erred in concluding (at LJ[263](b)(i) and LJ[314]) that the Applicant was acting on behalf of the Crown in right of the Commonwealth for the purposes of s 10(2) of the Limitation Act.
5. Further or in the alternative to ground 4 above, the primary judge erred in concluding (at LJ[261], [344] and [349]) that s 18(1) of the Limitation Act did not apply to the Applicant’s claim for additional levy under s 7 of the Collection Act as a surrogate federal law picked up and applied to the Respondent by operation of ss 79 and/or 64 of the Judiciary Act.
PARTICULARS
AA. The primary judge erred in concluding (at LJ[256]-[259]) that the question of whether a State limitation law applies to the Commonwealth in a proceeding involving the exercise of federal jurisdiction is controlled by s 64 of the Judiciary Act alone, to the exclusion of s 79 of the Judiciary Act.
A. The primary judge erred in concluding (at LJ[263](a), LJ[271], LJ[276] and LJ[349]) that the provisions of the Collection Act ‘cover the field’ so as to exclude the application of s 18(1) of the Limitation Act by operation of ss 64 and/or 79 of the Judiciary Act.
B. The primary judge erred in concluding (at LJ[344]) that the Collection Act was not an ‘enactment’ within the meaning of s 18(1) of the Limitation Act, once picked up and applied to the Respondent as a surrogate federal law by operation of ss 79 and/or 64 of the Judiciary Act.
169 By [2] of its Amended Notice of Contention, Coal LSL contends firstly that the primary judge should have found that the additional levy payable pursuant to s 7 of the Collection Act did not amount to a penalty for the purposes of s 18 of the State Limitation Act (contrary to her Honour’s finding at LJ [353]) and alternatively that the additional levy: [Ground 2(b)]
… amounts to interest on a tax for the purposes of s 10(3) of the Limitation Act (which the primary judge identified) at LJ [354] as being an arguable characterisation not argued before her which she was not required to decide, being a characterisation which [Coal LSL] seeks to advance on appeal.
170 Coal LSL’s remaining contention relating to the State Limitation Act is as follows:
4. If, notwithstanding the decision of the High Court of Australia in Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 29; 165 CLR 55, the primary judge having regard to the decision in Rizeq v Western Australia [2017] HCA 23; 262 CLR 1 should have found that the issue of whether the Limitation Act 1969 (NSW) had application to the claims for levy and additional levy the subject of these proceedings, was to be determined by applying section 79 of the Judiciary Act, or section 79 together with section 64 of the Judiciary Act, then the Respondent says that the same conclusion as the primary judge made at LJ [261] and [276] applies, that is that the LSL Scheme is a comprehensive and self contained statutory scheme for the collection and recovery of levies, additional levies and penalties for contravention, being complete on its face and covering the field, that thereby ‘otherwise provides’, leaving no room for the importation or application of sections 10, 14 or 18 of the Limitation Act; and accordingly sections 10, 14 and 18 of the Limitation Act are not picked up and applied as surrogate federal laws under section 79, or section 79 together with section 64, of the Judiciary Act.
Determining the applicable law under s 79 of the Judiciary Act
171 The starting point is that the controversy between the parties was a matter arising under a law of the Parliament and so (at least) for that reason involved the exercise of federal jurisdiction.
172 The primary judge determined that s 64 of the Judiciary Act was the “operative” provision and that s 79 could have nothing to say on the question of whether a State law limiting the time by which an action must be commenced can apply in matters involving the exercise of federal jurisdiction where the Commonwealth is a party. That conclusion was urged upon the primary judge by Coal LSL. The problem was compounded by the absence of oral or written submissions by Hitachi about how s 79 operated in the proceeding. The primary judge was taken to Moorebank in which the High Court answered a similar question solely by reference to s 64 of the Judiciary Act and (indirectly) by reference s 109 of the Constitution. The reasoning in Moorebank was to the effect that s 64 would not render applicable a State law that was invalid under s 109 of the Constitution because of its inconsistency with a law of the Commonwealth.
173 Most of the questions concerning the State Limitation Act can be answered by reference to the broader principles discussed in the more recent decision in Rizeq v Western Australia (2017) 262 CLR 1. There the High Court explained the function and proper construction of s 79 of the Judiciary Act and confirmed its potential application in connection with State laws that impose a temporal limitation on the invocation of federal jurisdiction.
174 Ten fundamental principles pertinent to this appeal may be drawn from the various judgments in Rizeq and the authorities referred to in them.
175 First, federal jurisdiction is to be understood as the authority that is conferred on a court to adjudicate a matter. That authority to adjudicate has its source in the Constitution and laws made under it, and so forms a part of the judicial power of the Commonwealth referred to in Ch III of the Constitution: [8] (Kiefel CJ), [52] (Bell, Gageler, Keane, Nettle and Gordon JJ), [127] (Edelman J).
176 Second, federal jurisdiction is to be distinguished from the law that is to be applied in the resolution of the controversy. As Kiefel CJ said (at [9]):
… In Anderson v Eric Anderson Radio & TV Pty Ltd, Kitto J explained that the conferral of federal jurisdiction merely provided a different basis for the authority of a court to enforce whatever law is applicable to the matter before it. It does not change the law the court enforces in adjudicating upon that matter. It follows that the fact that a court is exercising federal jurisdiction says nothing about the laws to be applied in a particular case.
(footnotes omitted)
177 Third, s 51(xxxix) of the Constitution confers on the Commonwealth Parliament the power to make laws that are incidental to the execution of any power vested in the Federal Judicature referred to in Ch III. As Bell, Gageler, Keane, Nettle and Gordon JJ explained (at [60]):
State Parliaments have been recognised to have no power to add to or detract from federal jurisdiction, whether that federal jurisdiction is conferred on the High Court by s 75 or under s 76 of the Constitution or is conferred on another federal court under s 77(i) or invested in a State court under s 77(iii). In respect of federal jurisdiction conferred on a federal court under s 77(i) or invested in a State court under s 77(iii), the explanation sometimes given of that inability of a State Parliament to add to or detract from federal jurisdiction has been that it is the result of s 109 of the Constitution. The better explanation, however, is that it is the result of an absence of State legislative power correlative to the exclusory operation of Ch III of the Constitution.
(footnotes omitted)
178 Fourth (and to reinforce the passage above), State Parliaments do not have the legislative competence to make such laws. Any State law that purports of its own force to affect the exercise of federal jurisdiction is invalid to that extent. The absence of State legislative power to govern what a court (whether State or federal) does in the exercise of federal jurisdiction “allows the class of State laws on which s 79 [of the Judiciary Act] operates to be delineated with more precision”: Rizeq, [90].
179 Fifth, s 79 of the Judiciary Act is a law supported by s 51(xxxix) of the Constitution. It operates to fill a gap created by an absence of Commonwealth laws which equip courts with the powers necessary to adjudicate a matter. It serves no other purpose: Rizeq, [63]. In cases where it applies, s 79 of the Judiciary Act “picks up” State laws and applies them as laws of the Commonwealth. Importantly, the gap that is filled is that “created by a lack of Commonwealth law governing when and how a court exercising federal jurisdiction is to hear and determine a matter” Rizeq, [17], [32]. It is a provision concerned with (and only concerned with) laws that are directed to courts, specifically laws that provide courts with the power necessary to hear and determine a matter, and not with laws that define the rights and liabilities of the parties: Rizeq, [91].
180 Sixth, in any event, s 109 of the Constitution is intended to operate in respect of Commonwealth and State laws which (apart from the operation of s 109 itself) are valid. Accordingly, before s 109 can be applied, it is necessary to first ascertain whether the State law in question is within the legislative competency of the relevant State Parliament. The test for inconsistency is between State and Commonwealth laws that are otherwise construed so as to conform with all other provisions of the Constitution. As s 79 of the Judiciary Act operates in an area in which there is an absence of State legislative power, State laws purporting to operate in that area have no valid direct application and s 109 of the Constitution “simply has no operation”: Rizeq, [92].
181 Seventh, the task of identifying whether a State law is one falling within the operation of s 79 of the Judiciary Act requires consideration to be given to the statutory context. Categorisation of the State law as either “substantive” or “procedural” may not always be appropriate: Rizeq,[83].
182 Eighth, in cases where it applies, s 79 operates to take up the text of State law and apply that text as Commonwealth law with its meaning unchanged “other than to make that text applicable to a federal court exercising jurisdiction in the State even though the State law on its proper construction applies only to a State court”: Rizeq, [81]; Edensor Nominees, Gleeson CJ, Gaudron and Gummow JJ (at [68]), McHugh J (at [134] – [146]) and Hayne and Callinan JJ (at [219] – [220]).
183 Ninth, laws that fall within the purview of s 79 of the Judiciary Act include laws that “bar the court absolutely or conditionally by reason of effluxion of time from entertaining a claim” (at [89)] or that “limit the time in which an action can be brought”: Rizeq, [201]. As Edelman J said (at [202]):
Laws which limit the time in which an action can be brought are an example of laws which concern when a court can adjudicate upon rights falling within a particular subject matter. The limitation laws do not ‘bar’ a person’s rights. Instead, they provide a defence which precludes an effective adjudication upon those rights. …
184 Tenth, whether s 79 of the Judiciary Act operates to pick up and apply a State law must depend on the conditions stated in s 79 itself. The case must be one in which the State law is “applicable” (as to which see below). In addition, the State law will not be binding on a court exercising federal jurisdiction if the Constitution or the laws of the Commonwealth Parliament otherwise provide.
185 In Rizeq itself, the High Court was asked to find that Rizeq had been convicted under a law of the Commonwealth, because a State law creating the offence was said to have been picked up as a Commonwealth law by s 79 of the Constitution.
186 All members of the High Court concluded that the State law creating the offence validly applied directly of its own force in a matter involving the exercise of federal jurisdiction, and not by virtue of the operation of s 79 of the Judiciary Act. Conversely, State laws that regulated the procedure to be followed in a proceeding for the prosecution of that offence could not apply of their own force. State laws directed at State courts and their powers could nonetheless be picked up and applied as federal law under s 79 of the Judiciary Act. Kiefel CJ said that if there were prior High Court decisions which suggested to the contrary, they could not be regarded as concluding the question, as in those cases the question of whether s 79 of the Judiciary Act picked up a State law creating a substantive offence was neither argued nor discussed: Rizeq, [31].
187 Bell, Gageler, Keane, Nettle and Gordon JJ said that the case provided “an opportunity for [the High Court] now to resolve some doubts, which must be acknowledged regrettably to have arisen, about the sources of law in federal jurisdiction and about the operation of s 79 of the Judiciary Act”: Rizeq, [39] (footnote omitted). However, all of the Justices emphasised that it was not within the legislative competence of a State parliament to pass a law that purported to regulate the exercise of federal jurisdiction of its own force.
188 In light of those principles, the task of the primary judge in resolving Coal LSL’s claim was first to read down the State Limitation Act so as to accord with the Constitution, specifically so that it did not exceed the legislative competence of the state of NSW. It could not validly operate of its own force to prescribe any period in which a cause of action founded in debt must be commenced in a court exercising federal jurisdiction. There was no occasion for the direct application of s 109 of the Constitution. However, as both parties acknowledged, the task of evaluating whether a law of the Commonwealth “otherwise provides” involves a similar analysis.
189 The result of the antecedent reading down process is that the phrase “cause of action to recover money recoverable by virtue of an enactment” must necessarily be read so to exclude money recoverable under an enactment of the Commonwealth Parliament. That is because all matters so described would necessarily arise under a law of the Parliament and every such case would therefore be a matter involving the exercise of federal jurisdiction. Alternatively, the whole of the State Limitation Act must be read down more generally so as not to apply to actions commenced in a court exercising federal jurisdiction in the particular case, howsoever that jurisdiction is attracted and irrespective of how the cause of action is characterised. Section 2 of the State Limitation Act itself commands that the statute be construed so as to conform with the Constitution. In addition, the statutory assertion in s 10 that the State Limitation Law binds the Crown must be read in accordance with the legislative competence of the State. The law is to be construed in a way that avoids the imposition of any condition on a suit to recover debts owed to the Crown in right of the Commonwealth, howsoever characterised, at least where those suits invoke federal jurisdiction.
190 To the extent that s 79 of the Judiciary Act applies at all, it must apply having regard to the text of the State Limitation Act so read down. In accordance with the principles stated in Rizeq, no occasion arises for the direct application of s 109 of the Constitution. That is because, when read to conform with State legislative competence, there is no inconsistency between the State law and the laws of the Commonwealth that comprise the Scheme.
191 We respectfully conclude that the primary judge was led into error in concluding that the application of the State Limitation Act depended on the operation of s 64 of the Judiciary Act and not s 79. As s 14 of the State Limitation Act fell within the purview of s 109 of the Constitution and s 79 of the Judiciary Act, it was necessary to consider whether anything in s 79 itself precluded it from being picked up. Provided that it was otherwise applicable in the case s 14 would be binding on courts exercising federal jurisdiction except as otherwise provided by the Constitution or the laws of the Commonwealth. The primary judge did not consider that question in the statutory context of s 79 of the Judiciary Act. However, her Honour did undertake a similar analysis under s 64 (as she had been urged to do) by asking whether the legislation constituting the Scheme covered the field in such a way that could leave no room for s 14 of the State Limitation Act to operate.
192 That was the approach taken in Moorebank. However, in that case it was common ground that the relevant provisions of a State limitation law were not directly applicable and that if they were “indirectly applicable” that must be by virtue of the operation of s 64 of the Judiciary Act. The application of s 79 was neither argued nor mentioned. The High Court confirmed that s 64 should not be construed as intended to “indirectly apply” the provisions of a State law to circumstances where the direct application of that law “would be invalidated by operation of s 109 of the Constitution”. The High Court said (at 64): Mason CJ, Brennan, Deane, Dawson and Gaudron JJ:
In particular, where a Commonwealth legislative scheme is complete upon its face, s. 64 will not operate to insert into it some provision of State law for whose operation the Commonwealth provisions can, when properly understood, be seen to have left no room. Accordingly, the question arises whether the relevant provisions of the Assessment Act have effectively covered the field and left no room for the direct or indirect intrusion of provisions of State Limitation Acts to limit the time in which an action can be brought on behalf of the Commissioner of Taxation for unpaid income tax or additional tax. It can be said at once that the provisions of the Assessment Act dealing with liability for and recovery of additional tax are so dependent upon and interwoven with the provisions dealing with liability for and recovery of income tax that it is plain that there will be no room for the application of State limitation provisions to limit recovery of additional tax if there is no room for the application of such provisions in relation to the recovery of income tax.
193 The High Court should there be understood as resolving a narrow argument about the operation of s 64 of the Judiciary Act. Nothing in the judgment should be understood as precluding the operation of s 79. To the extent that there is any doubt about that, it is one of the several regretful doubts later resolved in the various judgments in Rizeq.
194 For present purposes it is unnecessary to decide the scope of s 64 and any role it may play in binding courts to apply State laws that cannot validly apply of their own force in matters involving the exercise of federal jurisdiction. It is sufficient to accept the argument that the conclusion of the primary judge that s 79 of the Judiciary Act had no operation was in error. Given all that was said in Rizeq, it was plainly necessary to consider whether the State Limitation Act was binding on this Court exercising federal jurisdiction and hence it was necessary to observe the conditions and limitations expressed in the text of s 79 itself. It would be a surprising outcome if s 64 could operate to bind a court to the operation of a State law in circumstances where the conditions prescribed in s 79 were absent. That tends to suggest a hierarchy in the application of the provisions, but the issues arising on this appeal do not require us to express a concluded view about that.
195 We prefer to resolve the critical question arising on this aspect of the appeal by reference to Coal LSL’s fourth contention. The question is whether the result of the correct application of s 79 of the Judiciary Act is the same as that arrived at by the primary judge by reference to s 64 in any event.
Did a Commonwealth law “otherwise provide”?
196 As we have mentioned, State laws falling within the purview of s 79 will be binding on courts exercising federal jurisdiction “except as otherwise provided by the Constitution or the laws of the Commonwealth” and “in ... such cases as they are applicable”.
197 The “laws of the Commonwealth” include those enactments that constitute the Scheme as well as s 64 of the Judiciary Act. We reject Hitachi’s contention that the various enactments constituting the Scheme cannot be considered and construed as a cohesive whole. The enactments interrelate to such an extent that it was open to the primary judge to conclude that they were intended to operate as a single regime bearing on the same subject matter.
198 A law of the Commonwealth may “otherwise provide” if it evinces an intention that it cover the field of activity in relation to its subject matter, such that that intention would be undermined by the application of the State law. That is the same kind of analysis performed by the primary judge in identifying inconsistency by means analogous to an enquiry under s 109 of the Constitution. But it is also important to bear in mind the additional limitation in s 79, namely that it is concerned with State laws that are “otherwise applicable”. Properly read down in accordance with the Constitution, it seems to us doubtful that the case was one in which the State law was “applicable”, but argument on this appeal did not fully explore that question.
199 We consider the primary judge to be correct in identifying the several features of the Scheme that precluded the application of a limitation period of the kind prescribed in s 14 of the State Limitation Act in any event. It is sufficient to briefly emphasise two features of the legislation to which her Honour referred.
200 First, Parliament may be understood to have turned its mind to the question of whether proceedings for the enforcement of the Scheme should be limited by provisions confining the period in which a suit must be brought. The primary judge was correct to identify the Regulatory Powers Act as relevant in that assessment, having regard to the history of the Scheme and the prior inclusion of a limitation period within the Administration Act of the same limitation now found in the Regulatory Powers Act. There was no limitation period affecting the cause of action arising under s 9 of the Collection Act, an omission that should be understood to reflect Parliament’s intention that there be none. We would add the observation that s 14 and s 18 of the State Limitation Act are intended to interrelate such that a proceeding for the imposition of a “penalty” is intended to be excluded from the operation of s 14 (providing for a six year limitation) because it is dealt with in s 18 (providing for a two year limitation). That reinforces the view that the State Limitation Act is directed toward the very same subject as that dealt with in the Regulatory Powers Act, which contains a directly inconsistent provision. In our view, it is artificial to ask whether s 14 may be picked up in a way that ignores its interconnectedness with s 18. Expressed another way, s 14 of the State Limitation Act is not intended to operate in isolation from s 18: they are an inseparable couple.
201 Second, the primary judge was correct to identify that Parliament had conferred upon Coal LSL a discretionary power to extend the times prescribed in the Collection Act for the payment of a levy or additional levy. There is no error in the conclusion that s 14 of the State Limitation Act would confine the breadth of that discretion. In particular, if s 14 of the State Limitation Act applied, Coal LSL could not exercise the power after the time to commence a suit (based on the original due date for the debt) had expired. In our view that is enough to undermine an aspect of the Scheme, leaving no room for the State Limitation Act to apply.
202 We would add a final observation relating to the federal nature of the Scheme. Hitachi acknowledged that if s 79 of the Judiciary Act operated, it may pick up different limitation periods sourced in State law depending on the place in which the Court exercised federal jurisdiction in the particular suit. Hitachi could point to no choice of law rule or other mechanism that might avoid the lack of national uniformity in the administration of the Scheme that may result. We do not consider the Commonwealth Parliament to have intended that the obligation of an employer to pay levy and additional levy should be enforceable by suit in one State but not in another or that the functions of Coal LSL in recovering debts owed to the Commonwealth should be more limited in one place than another. The actuarial processes in administering the Fund would be so affected by that result that we do not accept it could have been intended.
Remaining arguments
203 We consider it neither necessary nor appropriate to express a concluded view about the remaining arguments and will briefly explain why.
204 Hitachi’s defence was founded on s 14 of the State Limitation Act (which provides for a six year limitation period), not s 18 (which provides for a two year limitation period). The primary judge made no conclusive finding that the additional levy constituted a penalty, as she considered it unnecessary to do so. Her Honour’s conclusion was that s 10(3) of the State Limitation Act applied with the result that neither s 14 nor s 18 applied in any event. As explained below, the conclusion that s 14 of the State Limitation Act did not apply was correct. The Court on appeal considers there to be no utility in expressing what may best be described as an obiter view as to whether the obiter view of the primary judge was correct.
205 Nor is it necessary to determine whether the primary judge erred by characterising the levy imposed by the Scheme as a tax for the purposes of s 10(3)(a) of the State Limitation Act. If Hitachi’s argument on that question was to be rejected, the appeal would not be allowed by reference to it.
206 In resisting the characterisation of the additional levy as a penalty, Hitachi submitted at trial that the additional levy arising under s 7 was “akin to interest” on unpaid levy arising under s 4. Thus, if the levy arising under s 4 is a tax, the additional levy must, consistent with Hitachi’s argument below, be akin to interest on a tax and so fall within the exclusion in s 10(3).
207 Hitachi’s submissions in connection with these and other issues were based in part on an assumption that a State law picked up and applied under s 79 of the Judiciary Act could (indeed must) be picked up with its meaning altered. That submission is correct to the very limited extent identified earlier in these reasons, namely that a reference in the State law to a State court must be interpreted to include a reference to all courts exercising federal jurisdiction. It is well established that s 79 of the Judiciary Act may operate so as to alter the meaning of a State law to that extent. Edensor Nominees, Gleeson CJ, Gaudron and Gummow JJ (at [68]), McHugh J (at [134] – [146]) and Hayne and Callinan JJ (at [219] – [220]); John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65; Kruger v Commonwealth (1997) 190 CLR 1, Gaudron J (at 140 – 141). However, to the extent that Hitachi submitted that the State law may be picked up and applied with its meaning altered in other ways, we do not accept that submission at face value. It seems to us that adopting that approach would denude the closing words of s 79(1) of any value: State laws may only be picked up in those cases in which they are applicable. There does not appear to be any warrant in s 79 of the Judiciary Act to first alter the meaning of a State law other than to the limited extent discussed in the authorities. We decline to say anything further on the question not only because the outcome of this appeal does not turn on it, but also because there appears to us to be Constitutional issues circling the problem that were not the subject of detailed submissions and that were not clearly articulated in any notice issued under s 78B of the Judiciary Act, whether at first instance or on the appeal.
208 It is enough to state that irrespective of whether the matter was brought “by the Crown” and irrespective of whether the levy was a “tax” or the additional levy was a “penalty”, and irrespective of the validity of the State Limitation Act bearing on either subject matter, s 79 did not operate to pick up either s 14 or s 18 because a law of the Commonwealth otherwise provided.
209 That is sufficient to dispose of the fourth and fifth grounds of appeal.
I certify that the preceding two hundred and nine (209) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, Charlesworth and Dowling. |
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