Federal Court of Australia

Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2025] FCAFC 65

ORDERS

THE COURT ORDERS THAT:

1.    Within 28 days of the date of these orders, the parties are to provide to the court:

(a)    a minute of agreed orders; or, as the case may be,

(b)    competing minutes of orders together with supporting written submissions of no more than five pages,

that are, in either case, proposed to give effect to the court’s reasons for judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER AND SNADEN JJ:

1    The main object of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (hereafter, the “Administration Act”) is “…to make provision in relation to long service leave in the black coal mining industry…”: Administration Act, s 3. At the risk of over-simplification, it establishes for the benefit of black coal mining employees a portable entitlement to paid long service leave. That entitlement is funded from contributions made pursuant to the provisions of sibling legislation, which are paid to and administered for that purpose by the respondent (the “CMIC”). Those contributions are collected in respect of what the Administration Act refers to as “eligible employee[s]”.

2    In May 2019, the CMIC issued upon the appellant (“Orica”) a notice to produce documents under s 52A of the Administration Act. Its doing so was premised upon its belief that Orica had information or documents relating to its employment of “eligible employees”; specifically, employees that, since 2013, Orica had engaged as “shotfirers” at black coal mines in New South Wales and Queensland.

3    That Orica engaged such employees is not in doubt. Instead, Orica denied (and continues to deny) that its shotfirer employees qualified (or qualify) as “eligible employees” for the purposes of the Administration Act. By an originating application filed in this court on 1 March 2021, it moved for declaratory relief consistent with that denial. Thereafter and by an amended notice of cross-claim dated 19 September 2023, the CMIC moved for declaratory relief of its own; specifically, relief consistent with the competing hypothesis.

4    By judgment dated 5 December 2023, the court determined that Orica’s shotfirer employees are and were, as the CMIC had maintained, “eligible employees” for the purposes of the Administration Act: Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding Corporation) [2023] FCA 1515 (the “Primary Judgment”). Thereafter, it granted declaratory relief substantially (but not wholly) aligned with what the CMIC had urged.

5    By a notice dated 1 March 2024, Orica appeals from the whole of the Primary Judgment (including the consequential declaratory relief just described). By a notice of contention dated 25 March 2024, the CMIC seeks to support it on an alternative footing not favoured by the learned primary judge.

6    For the reasons that follow, the appeal should be allowed in part and the notice of contention should be dismissed. Orica’s “shotfirer” employees are not “eligible employees” for the purposes of the Administration Act and have not been since 1 March 2022. As at least some of it is inconsistent with that reality, part or more of the declaratory relief that the learned primary judge granted should be set aside. It is likely that more confined relief should be granted in its place. The parties should be heard (in the absence of agreement) as to the form that that relief should assume and on the question of costs.

Factual background

7    The factual background to the appeal may shortly be stated.

8    In his Honour’s written reasons for judgment (Primary Judgment, [1]-[2]), the learned primary judge set out as follows the nature of “shotfiring” activities:

1    …In open cut black coal mining, shotfiring is a collection of activities by which a black coal seam is exposed by the detonation in holes in the ground of high-powered explosives (usually, but not always, ammonium nitrate). Although it is convenient to refer to the personnel involved in this activity as shotfirers there are, in fact, several roles involved in the process which leads to the firing of the ‘shot’. I will refer to all the employees engaged in these activities as ‘shotfirers’ although strictly only the individual who presses the button is the shotfirer.

2    As a matter of mining engineering the efficient extraction of coal requires the process of exposing the coal to be highly integrated with the process of extracting it. There is no point in exposing coal which is not going to be promptly extracted and only waste, which commerce abhors, results from having expensive mining equipment sitting around waiting for the coal to be exposed. Likewise, issues of occupational health and safety, always prominent in the mining sector, are especially significant where large quantities of high explosives are being shuttled around a mine and then detonated. This is so not only for those who are engaged in the exciting vocation of shotfiring but also for anyone else in the vicinity. Thus, whilst shotfiring is a distinct activity plainly different to, for example, digging up and putting coal in a truck, it is nevertheless directly involved in the process of extracting coal and, as I have said, necessarily integrated into that process to a significant degree.

9    Referring to provisions of the Black Coal Mining Industry Award 2010 (the “BCMI Award”)—the significance of which is shortly to become apparent—his Honour described the nature of Orica’s business (Primary Judgment, [17]-[18]) (references omitted):

17    It is agreed that during the relevant period Orica conducted a business which included the supply of shotfiring and explosive services and that it did so at a number of black coal mines in New South Wales and Queensland. It is also agreed that the work being done by the operators of these mines included the mining and extraction of black coal on a black coal mining lease (cl 4.2(a)), the transportation and processing of black coal on such a lease (cll 4.2(b) and (c)) and other work on a coal mining lease directly connected with the extraction, mining and processing of black coal (cl 4.2(d)). Thus it is inevitable that the operators of these open cut black coal mines were ‘engaged in the black coal mining industry’.

18    It is also agreed that Orica’s provision of shotfiring and explosive services at these black coal mines was an integral part of the operation of those mines. The evidence of Professor Bruce Hebblewhite made this inevitable. Professor Hebblewhite is an Emeritus Professor at the University of New South Wales specialising in mining engineering. He described in detail the manner in which shotfiring is used to remove overburden from above a coal seam. In particular, he explained that blast design and scheduling are critical parts of the mining operation. This is because a smooth blasting process ensures that the overburden is removed at a sufficient rate to permit the coal to be extracted in accordance with the mine’s production schedule.

10    As will shortly be seen, one question posed for his Honour’s consideration was whether Orica could be said to operate in the black coal mining industry by reason of the activities of a division within it known as “Minova”. His Honour found (and it was not seriously to be doubted) that that Minova business, although forming part of Orica’s overall undertaking, nonetheless operated separately from its provision of shotfiring (or other explosive) services. Instead, the Minova division—originally a business that Orica had purchased in 2006 and later integrated into its own operations, before it was divested in February 2022—focused exclusively upon the provision of services to underground black coal mining businesses (specifically, drilling and instrumentation services, the installation, repair, maintenance and removal of ventilation control devices, and the provision of secondary ground support services).

The statutory framework

11    As has been noted already, the portable long service leave regime for which the Administration Act (together with others) provides is erected for the benefit of “eligible employee[s]”. Likewise, the statutory power pursuant to which the CMIC sought to compel Orica to provide it with information permits as much (amongst other things) insofar as the CMIC believes on reasonable grounds that a person has information relating to the employment of an “eligible employee”.

12    Section 4(1) of the Administration Act contains (and contained) the following definition of “eligible employee”:

eligible employee means:

(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

(c)    an employee permanently employed with a mine rescue service for the purposes of the black coal mining industry; or

(d)    a prescribed person who is employed in the black coal mining industry;

but does not include a person declared by the regulations not to be an eligible employee for the purposes of this Act.

13    The same subsection defines “black coal mining industry” 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.

14    Until it was replaced in 2022, the BCMI Award was a “modern award” that was made and had force pursuant to the provisions of pt 2-2 of the Fair Work Act 2009 (Cth). Although it has undergone various iterations in the years since, it is convenient hereafter to refer to the BCMI Award as though referring to the form that it assumed when it was first made.

15    Clause 4 of the BCMI Award is entitled, “Coverage”. Relevantly, it provides as follows:

4.1    This award applies to:

(a)    employers of coal mining employees as defined in clause 4.1(b); and

(b)    coal mining employees.

Coal mining employees are:

(i)    employees who are 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 and who are employed in a classification or class of work in Schedule A—Production and Engineering Employees or Schedule B—Staff Employees of this award;

(ii)    employees who are 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 and who are employed in a classification or class of work in Schedule A—Production and Engineering Employees or Schedule B—Staff Employees of this award.

4.2    For the purposes of this award, black coal mining industry has 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 a 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.

The Primary Judgment

16    In the matter below, Orica submitted that none of its shotfiring employees was an “eligible employee” for the purposes of the Administration Act because none was “employed in the black coal mining industry”. Thus, it said, the CMIC’s demand that it produce information and documents was founded upon a false premise, which it urged the court to address by granting the declaratory relief for which it moved.

17    The learned primary judge did not accept that contention. It is convenient to replicate what his Honour found (Primary Judgment, [19]-[25]):

19    Whilst the provision by Orica of its shotfiring services at these [New South Wales and Queensland black coal] mines did not involve the actual extraction of black coal by the shotfirers there can be no shadow of a doubt that it was ‘work on a coal mining lease directly connected with the extraction, mining and processing of black coal’ within the meaning of cl 4.2(d). Thus, the provision by Orica of these services falls within the definition of the black coal mining industry in cl 4.2(d). For the same reasons, the work done by Orica’s shotfirers necessarily meant that they were employed in the black coal mining industry at least so far as cl 4.2(d) is concerned.

20    The question which divides the parties is the impact, if any, on this conclusion of the excision from the black coal mining industry referred to in cl 4.3(g).

21    In my view, cl 4.3(g) has no application in this case. The definitions in s 4(1), including that of the black coal mining industry, do not apply if the contrary intention appears from the face of the statute (‘In this Act, unless the contrary intention appears:’). The structure of the definition of ‘eligible employee’ in s 4(1), specifically the inclusion of disjunctive employer and location limbs, gives rise to a clear implication that the character of an employer was not intended to be relevant to the location limb.

22    Clause 4.3(g) excises from the black coal mining industry the provision of shotfiring services by an employer unless the employer is ‘otherwise engaged in the black coal mining industry’. Thus, the excision in cl 4.3(g) has the consequence that consideration of whether shotfirers are ‘employed in the black coal mining industry’ for the purposes of the location limb necessarily, and in my view impermissibly, involves two inquiries concerning the employer: i) whether the employer provides shotfiring services; and ii) whether it is otherwise engaged in the black coal mining industry. By these means the effect of cl 4.3(g) is to make these qualities of the employer inopportunely appear as requirements in the location limb in the definition of ‘eligible employee’ in s 4(1). However, as I have explained, the relationship between the employer limb in sub-s (a) and the location limb in sub-s (b) of that definition demonstrates that Parliament intended that the qualities of the employer were to be irrelevant to the location limb.

23    It follows that to the extent that the definition in s 4(1) of the ‘black coal mining industry’ includes cl 4.3(g) it cannot be reconciled with the location limb in the definition of ‘eligible employee’ in s 4(1). Consequently, a contrary intention is demonstrated on the face of the location limb and the ‘black coal mining industry’ referred to in that limb cannot be the black coal mining industry defined in the Award. On the other hand, s 4(1) of the Administration Act also clearly shows that the Parliament intended the legislative scheme to operate by reference to the same black coal mining industry as the Award does. Whilst one must give effect to the structural imperatives of the location limb, one should do so in a way which does as little violence to that concept as possible. These conflicting aims may be reconciled by reading the reference to the ‘black coal mining industry’ in the location limb as having the same meaning as it bears in the Award but without cl 4.3(g).

24    Read that way, the excision in cl 4.3(g) is not relevant to the location limb. Since the shotfirers are plainly employed in the black coal mining industry defined in the Award when cl 4.3(g) is disregarded, and are so employed at black coal mines in direct connection with the day to day operation of those mines, they are necessarily eligible employees under the location limb.

25    That conclusion resolves the case. If I were wrong in that view, it would be necessary to resolve a number of other issues between the parties.

18    Having alluded to that “number of other issues”, his Honour then proceeded to address—by rejecting—the CMIC’s contention that cl 4.3(g) of the BCMI Award only operated “…by reference to whether an employer was engaged in the black coal mining industry [and, therefore] had no bearing on whether an employee was employed in that industry”. His Honour observed (Primary Judgment, [31]) (emphases original):

31    Clauses 4.3(a)-(f) reflect prior decisions about what is and what is not in the black coal mining industry. They may be unnecessary in light of the first sentence of cl 4.2 (‘For the purposes of this award, black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal.’). Certainly, this thought has been entertained before. The production of the Award (and many other modern awards) was the result of an extensive process of consultation that began when the Minister requested the Commission commence the award modernisation process contemplated by s 576C of the Workplace Relations Act 1996 (Cth). In an early draft of the Award the Full Bench of the Commission refused to include the first sentence of cl 4.2 because it thought that it added nothing from a legal perspective and was ‘apt to confuse or intimidate lay readers of the award’: Re Request from the Minister for Employment and Workplace Relations – Award Modernisation Statement [2008] AIRCFB 717; 177 IR 8 at [38]. However, it subsequently had a change of heart in Re Request from the Minister for Employment and Workplace Relations – Award Modernisation [2008] AIRCFB 1000; 177 IR 364 at [156]-[157]. The particular problem with which the Commission was wrestling at that time was the extent to which the Award would cover contractors who worked at or about black coal mines (in particular, mechanical and electrical contractors). What is clear is that the Full Bench wished, so far as possible, to preserve the status quo in relation to the meaning of the black coal mining industry and therefore the coverage of the Award:

[156] We have, at this stage, acceded to the main submissions of the CFMEU and the CMIEG in relation to the coverage clause in the exposure draft and have generally reverted to the form of words in the draft clause agreed by the main coal industry parties. We note that the stated goal of the CFMEU and the CMIEG was to achieve a coverage clause that as closely as possible reflects the status quo in terms of the existing application of the key federal pre-reform awards both in relation to the kinds of employers to whom those awards apply and the extent to which the awards apply to such employers. We agree with that goal and intend that the award we have made should neither expand nor contract the reach of the key pre-reform awards both in relation to the kinds of employers to whom those awards apply and the extent to which the awards apply to such employers. It follows that we reject submissions that sought to have mechanical and electrical contractors invariably covered by awards other than the modern award for the black coal mining industry.

[157] However, we are concerned that the clause as drafted is not simple to understand nor easy to apply. In particular, contractors who perform some work at or about coal mines may have difficulty in determining whether the award covers them. We acknowledge that significant attempts were made by the parties to agree on a form of words that described the industry in a clear and direct way. We intend to vary cl.4 before the award commences so that it contains a clearer description of the black coal mining industry albeit a description that reflects as closely as possible the status quo. We recognise that the difficulties in developing such a description are substantial and that this should not be done without further consultation with interested parties.

19    His Honour continued (Primary Judgment, [32]-[33]) (emphases original):

32    It is not clear from the terms of either decision whence the drafting of cl 4.3(g) derives. However, it appears to reflect, or at least be related to, the Full Bench of the Commission’s decision in Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited [2005] AIRC 622 (‘Dyno Nobel’). There it was held for the purposes of a union eligibility rule that the Construction, Forestry, Mining and Energy Union (‘CFMEU’) was not entitled to represent Dyno Nobel’s shotfirers because, in terms of the eligibility rule in question, the shotfirers were not ‘engaged in or in connection with the coal and shale industries’. The Full Bench reasoned that the eligibility rule was an industry rule rather than a vocational rule and, applying R v Hibble; Ex parte Broken Hill Proprietary Co Ltd (1921) 29 CLR 290, determined that it was therefore necessary to ascertain the trade or business of Dyno Nobel: [16].

33    It then applied a substantial character test to the business of Dyno Nobel and concluded that the substantial character of the business was the manufacture and supply of explosives: [54], [59]. Whilst the Full Bench accepted that Dyno Nobel provided shotfiring services at open cut coal mines, it considered this a very minor aspect of the overall business and insufficient to give Dyno Nobel the additional substantial character of being in the mining industry: [59]. Thus, the company’s shotfirers were not ‘engaged in or in connection with the coal and shale industries’.

20    Later (and referring to the decision of the Australian Industrial Relations Commission in Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited [2005] AIRC 622), his Honour accepted that “…in a poorly executed sort of way cl 4.3(g) appears to be a response to the decision in Dyno Nobel”, explaining (Primary Judgment, [35]):

35    …If the excision from the black coal mining industry effected by cl 4.3(g) were read so that it does not include the performance by shotfirers of their duties then it would follow that the black coal mining industry, by reason of cl 4.2(d), would include the work of shotfirers at black coal mines even if it did not include the supply of those same services by Orica. Consequently, the shotfirers would be employed in the black coal mining industry for the purposes of cl 4.1(b)(ii) and a firm engaging them would be covered by the Award through cl 4.1(a). In particular, it would entail that firms such as Dyno Nobel were covered by the Award. Since this is a result which cl 4.3(g) appears to have been intended to avoid, I conclude that cl 4.3(g) relates not only to the provision of shotfiring services by an employer but also to the performance by employees of the duties by which those services are provided. This reading is also consistent with a good dose of common sense.

21    The learned primary judge then moved to consider another issue that arose only insofar as his construction of s 4(1) of the Administration Act was wrong: specifically, “…whether Orica is ‘otherwise engaged in the black coal mining industry’ for the purposes of the proviso in cl 4.3(g)” of the BCMI Award.

22    His Honour’s analysis began with an acknowledgment that the parties were “…agreed that the word ‘otherwise’ means that in assessing whether it is engaged in the black coal mining industry for the purposes of cl 4.3(g) the provision of its shotfiring services at black coal mines is to be disregarded.” Save as to the significance of the Minova business (to which he later returned), the learned primary judge observed that the extent to which Orica could, if one disregarded its shotfiring activities, nonetheless be thought to be engaged in the black coal mining industry was “…not an issue in this proceeding”.

23    That acknowledged, the learned primary judge proceeded in any event to make the following “necessarily provisional” observations (Primary Judgment, [41]-[43]) (emphases original):

41    …it is clear that the Award was not intended to disturb the status quo in relation to the nature of the black coal mining industry. The status quo included the Full Bench’s decision in Dyno Nobel. In that case the Full Bench accepted that shotfiring was part of the coal mining industry. It noted at [11] that the finding of fact at first instance that ‘shotfiring is work performed within the coal industry’ was not challenged. And later, at [59], it formulated the question it had to answer: ‘The issue comes down to whether, because a small number of Dyno Nobel employees perform some work that can be regarded as work in the coal industry…the single integrated business of Dyno Nobel also has a ‘substantial character’ that places it in or in connection with the coal industry within the meaning of Rule 2D of the [Construction, Forestry, Mining and Energy Union] rules’. What was held in Dyno Nobel was that Dyno Nobel’s shotfiring activities were too marginal a part of its more general explosives business to have the effect that it was engaged in the coal and shale industry.

42    Given the Commission’s explicit desire to preserve the status quo it seems improbable that the Full Bench intended to excise from the black coal mining industry something which was, until cl 4.3(g), uncontroversially, and with respect obviously, in that industry. It was uncontroversial because it was the basis on which Dyno Nobel was decided. It was obvious because the uncovering of a coal seam by the detonation of explosives is a part of the actual process by which coal is mined and, hence, part of the mining operation itself.

43    This suggests that cl 4.3(g) ought to be construed so that it accords with the decision in Dyno Nobel. This can be done by reading the word ‘otherwise’ as ‘in any event’. If read that way, cl 4.3(g) preserves the result in Dyno Nobel and leaves shotfiring services in the black coal mining industry if an employer is by reason of those shotfiring activities engaged in the black coal mining industry. On the facts found in Dyno Nobel, Dyno Nobel would fall outside the proviso and hence within the exception. Whether another manufacturer and supplier of explosives which also collaterally provided shotfiring services at open cut black coal mines fell within the exception in cl 4.3(g) would turn on whether, unlike Dyno Nobel, those shotfiring activities meant that it was engaged in the black coal mining industry.

24    The learned primary judge then turned to consider the significance of Orica’s Minova business to cl 4.3(g) of the BCMI Award. Significantly for present purposes, his Honour observed (Primary Judgment, [46]-[47]) (emphasis original):

46    If the two enterprises were in some way overlapping or interconnected in a material way, then there might well be reason to ask in what industry the combined enterprises were engaged. However, in this case there is no doubt that these two enterprises were for all material purposes entirely separate, apart from back office support activities. The case thus presents one entity, Orica, engaged in two distinct enterprises.

47    It is uncontroversial that one firm may through different enterprises be engaged in different industries: R v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 at 57 per Latham CJ (‘A single employer may carry on two or more industries. The same man may be a farmer and a miller and a baker’). The modern conglomerate is an example of the union of many such enterprises. Where conglomerates are concerned the question of whether a single enterprise carried on by the conglomerate is engaged in a particular industry is in nowise affected by the activities in which it also happens to be engaged through the other enterprises…

25    His Honour’s attention thus turned to the nature of the enterprise undertaken by Orica’s Minova division and whether it properly qualified as one that, for the purposes of cl 4.3(g) of the BCMI Award, was “…engaged in the black coal mining industry”. It was noted that “[i]f the substantial character of that [Minova] enterprise is in the black coal mining industry then the proviso to the exception will be engaged [such that Orica’s] shotfiring [services] will be in the black coal mining industry and the performance by the shotfirers of their duties as such will entail that they are ‘employed in the black coal mining industry’ for the purposes of the definition of ‘eligible employee’ in s 4(1)”.

26    After a thorough analysis that, for present purposes, may be reduced to its short summation, his Honour was led to record the following conclusions about Orica’s Minova business (Primary Judgment, [92]-[93]):

92    …the fact that the Minova business provides its services exclusively to black coal miners makes it impossible to say that it is engaged in any other industry apart from the black coal mining industry. All of its services were provided at black coal mines, those services were integrated into the mining operations, the services were provided by employees which Orica does not dispute were employed in the black coal mining industry and those employees were subject to the direction of the mine operator at least where safety was concerned. The degree of integration between the mine operators and the Minova business was high. I therefore conclude that the substantial character of the Minova business was in the black coal mining industry.

93    Consequently, on the assumption (contrary to my conclusion) that cl 4.3(g) is relevant to the debate, I would conclude that for its purposes Orica was otherwise engaged in the black coal mining industry so that the exception for which it provides was not enlivened. Thus Orica’s provision of shotfiring services at open cut black coal mines was in the black coal mining industry by reason of cl 4.2(d). As such its shotfirers were employed in that industry for the purposes of the location limb in s 4(1) of the definition of ‘eligible employee’.

27    The declaratory and consequential relief granted in light of those conclusions was granted some weeks later, after the parties had enjoyed an opportunity to consider the form that it should assume. With one exception (in respect of which his Honour published separate reasons, upon which no attention need now be focused), that relief was agreed. Substantively, it took the form of declaratory relief that recorded four matters consistent with what his Honour had concluded.

28    The first recorded the court’s finding that the employees that Orica engaged to perform shotfiring work at black coal mines in New South Wales “…as and from 2013 [were] eligible employees within the meaning of subsection (b) of the definition in section 4(1) of the [Administration Act]”. The second recorded that the notice by which the CMIC had required that Orica provide it with information had been “validly issued under section 52A of the [Administration Act]”. The third recorded that Orica had contravened s 52A(5) of the Administration Act by failing to comply with that notice. The fourth recorded that Orica had failed, in respect of the shotfirers that it engaged at black coal mines in New South Wales “during the period 2013 to date”, to pay levies that the Administration Act imposed upon it in that regard.

The present appeal

29    By its notice of appeal dated 1 March 2024, Orica identifies four grounds upon which it seeks to impugn the Primary Judgment as a product of error. It is convenient to replicate them in full (emphases original):

1.    The primary judge made an error in construing the definition of ‘eligible employee’ in section 4(1) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (Administration Act) such that clause 4.3(g) of the Black Coal Mining Industry Award 2010 (Award) had no application to subclause (b) of that definition (at [Primary Judgment] [21]-[24]).

2.     The primary judge made an error in construing ‘otherwise’ in clause 4.3(g) of the Award as meaning ‘in any event’ (at [Primary Judgment] [43]).

3.     By reason of the errors set out in grounds 1 and 2, the primary judge made an error in extending declarations 1 and 4 past 28 February 2022 (when the Appellant divested itself of its ‘Minova’ business), without making a finding as to whether the Appellant was ‘otherwise in the black coal mining industry’ for the purposes of clause 4.3(g) of the Award without the ‘Minova’ business.

4.     The primary judge made an error in determining that whether the Appellant was ‘otherwise in the black coal mining industry’ for the purposes of clause 4.3(g) of the Award was to be determined by reference only to the Appellant’s ‘Minova’ business (at [Primary Judgment] [47]-[48]).

30    By notice of contention dated 25 March 2024, the CMIC identifies an alternative ground upon which it is said that the Primary Judgment ought to have rested, namely (emphases original):

1.    The primary judge should have found that, on a proper construction of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (Administration Act) and the Black Coal Mining Industry Award 2010 (Award), the exclusion from the “black coal mining industry” of the supply by an employer of shotfiring services at clause 4.3(g) of the Award does not apply to sub-section 4(1)(b) of the definition of “eligible employee” in the Administration Act, because that exclusion in the Award operated by reference to whether an employer was engaged in the black coal mining industry and not whether an employee was employed in that industry ([Primary Judgment] [26], [35]).

31    We shall address each in turn.

Ground 1 and the notice of contention: the excision of cl 4.3(g)

32    Ground 1 and the CMIC’s notice of contention are closely related and it is convenient to address both together.

33    Orica maintains that the learned primary judge erred by construing sub-para (b) of the Administration Act’s definition of “eligible employee” and its reference to “the black coal mining industry” in a way that ignored the presence of cl 4.3(g) in the BCMI Award. The CMIC seeks to defend his Honour’s construction largely on the basis that he identified; namely, because sub-para (b) of the Administration Act’s definition of “eligible employee” focuses upon the activities of employees rather than employers, and because, insofar as it introduces some focus upon the latter, cl 4.3(g) of the BCMI Award distracts from the focus that sub-para (b) places upon the former and does so in a way that the legislature should be presumed not to have intended.

34    For the reasons that follow, Orica’s contention should be accepted.

35    Subparagraphs (a) and (b) of the Administration Act definition of (the singular) “eligible employee” are materially identical to the BCMI Award definition of (the plural) “coal mining employees”. Like the statutory definition, the award definition requires, in both cases, that employees be “employed in the black coal mining industry”. That industry is then defined—both inclusively by cl 4.2 and exclusively by cl 4.3—in each case by reference to various species of work.

36    There can, in our view, be no suggestion (and the learned primary judge did not suggest) that cl 4.3(g) of the BCMI Award should apply only to limit what was intended by the reference to being “employed in the black coal mining industry” in cl 4.1(b)(i) of the BCMI Award. So to find would be to accept that consecutive provisions in that instrument that employ precisely the same terminology (“employed in the black coal mining industry”) that is defined in the text found immediately thereafter were, nonetheless, intended to convey different meanings.

37    Just as a construction consistent with that proposition ought not to be preferred in respect of the BCMI Award, nor is there reason to prefer it in respect of the Administration Act. As has been noted, the relevant parts of the statutory definition (sub-paras (a) and (b)) employ the same terms as do their equivalents in sub-paras (i) and (ii) of cl 4.1(b) of the BCMI Award. They should be construed consistently.

38    As much is clear from context. Coverage by sub-para (a) of the statutory definition (like its analogue in sub-para (i) of the BCMI Award definition) requires that employees be “employed…by an employer in the black coal mining industry”. If cl 4.3(g) of the BCMI Award should stand only to qualify that part of the statutory definition (and, as his Honour found, not the part that is the subject of sub-para (b)), then it would have no work to do. An employer that is “not otherwise engaged in the black coal mining industry” for the purposes of cl 4.3(g) is one whose employees are not “employed by an employer engaged in the black coal mining industry” and cannot, therefore, qualify as “eligible employee[s]” under sub-para (a) of the Administration Act definition. On the construction favoured by the CMIC, cl 4.3(g) of the BCMI Award would have no application to the only part of the definition to which its application is said to be limited.

39    The statutory definition of “eligible employee” does not demonstrate, by its structure or otherwise, that the reference to the “black coal mining industry” in sub-para (b) is a reference to something other than what cl 4 of the BCMI Award holds it to mean. The exclusion for which cl 4.3(g) of the BCMI Award provides applies as much and in the same way to sub-para (b) of that statutory definition as it does to sub-para (a).

40    In order that an employee might qualify for coverage under the BCMI Award as a “coal mining employee” or as an “eligible employee” under the Administration Act (ignoring, momentarily, sub-paras (c) and (d) of the statutory definition), he or she must be “employed in the black coal mining industry”. Whether an employee is so employed turns upon the application of cll 4.2 and 4.3 of the BCMI Award. The first of those provisions identifies the suite of activities that are within the award’s conception of “the black coal mining industry”. The latter identifies activities that are not within that conception. Those excluded activities are, in the case of cl 4.3(g), identified partly by reference to the character of an employee’s employer.

41    Employees who are engaged in “the supply of shotfiring or other explosive services”—as Orica’s shotfirers plainly are and were—are not employed in the black coal mining industry (for the purposes of either the BCMI Award or the Administration Act) unless their employer is “otherwise engaged” therein. That, as his Honour with respect correctly observed (albeit in a different context), turns upon whether or not their employer engages, via the efforts of others—that is to say, of employees who are not engaged in the supply of shotfiring or other explosive services—in activities of the kinds that are listed in cl 4.2 (and that are not listed in cl 4.3).

42    Thus, employees engaged in the supply of shotfiring services will qualify as “coal mining employees” under the BCMI Award and as “eligible employee[s]” under the Administration Act if they are engaged by employers whose other exertions (or sufficient of them) are directed toward activities that are apt to be recognised under cl 4.2 as components of the black coal mining industry. That might include, for example, shotfiring employees who are engaged directly by a business that owns and operates a black coal mine. By operation of cl 4.3(g), though, shotfiring employees who are engaged by a business whose other activities (if any) are wholly external to the award conception of the “black coal mining industry” will not qualify as “coal mining employees” for the purposes of the BCMI Award, nor as “eligible employees” for the purposes of the Administration Act.

43    It follows that, insofar as the learned primary judge favoured the contrary view (as his Honour did at Primary Judgment, [21]-[24]), we would respectfully agree that he did so in error. Ground 1 of Orica’s notice of appeal is made good. The CMIC’s notice of contention should be dismissed.

Ground 2: meaning of “otherwise”

44    By its second ground of appeal, Orica charges the learned primary judge with error insofar as he concluded that “otherwise” in cl 4.3(g) of the BCMI Award should be read as though “in any event” (Primary Judgment, [43]): above, [21]).

45    At the outset, it should be recalled that appeal ground 2 concerns an issue about which his Honour made only “necessarily provisional” observations. It was accepted before him that “…the word ‘otherwise’ means that in assessing whether it is engaged in the black coal mining industry for the purposes of cl 4.3(g) the provision of its shotfiring services at black coal mines is to be disregarded”.

46    Although his Honour proceeded regardless to make some observations about the proper construction of cl 4.3(g) that appear to be inconsistent with that consensus, they were not later brought to bear in any operative way upon his judgment. Rather, his Honour engaged with the clause in the way with which the parties envisaged that it should be engaged (that is, by considering whether Orica operated in the black coal mining industry by reason of its non-shotfiring activities).

47    Plainy, Orica is concerned about the view that his Honour expressed. At the hearing of the appeal, the following exchange transpired, which neatly illustrates that concern:

HATCHER J:         So before you do that, Mr McKenna, in respect of ground 2 of the appeal - - -

MR McKENNA:     Yes.

HATCHER J:         That challenges what the primary judge said at paragraph 43.

…

MR McKENNA:     Yes, yes.

HATCHER J:         But it seems to me that 43 is not the way his Honour decided the case. That is, his Honour said, “Look, I would prefer a construction which doesn’t conform with what both parties put.”

MR McKENNA:     Yes.

HATCHER J:         But then proceeded to decide the case on the basis of the agreed construction. That is, it doesn’t seem to me that appeal ground 2 is actually challenging the gravamen of the decision.

MR McKENNA:     Your Honour’s right in the sense that an analysis of the ratio – the line that his Honour took – this was a little byway in the whole process, but we couldn’t take this appeal without actually challenging that as well so that your Honours didn’t think that that was uncontroversial, because it is.

HATCHER J:         All right. Thank you.

48    Later, senior counsel for the CMIC offered a similar acknowledgment.

49    Whether or not Orica’s concerns are well-founded is unnecessary to decide. The point remains: the learned primary judge proceeded to decide the application of cl 4.3(g) of the BCMI Award consistently with the construction that was the subject of agreement before him. In the absence of the position that he expressed having had some bearing upon the outcome, to attempt now to pass comment upon its correctness would be to indulge an interesting but ultimately hypothetical debate.

50    Nothing turns on appeal ground 2 and, for that reason alone, it should not succeed.

Ground 3: scope of declaratory relief

51    By appeal ground 3, Orica contends that the learned primary judge erred by granting declaratory relief that extended beyond 28 February 2022. It was on that date that Orica divested itself of its Minova business. Thus, it is said, from the point of that divestment (and assuming its success on appeal ground 1), there was no basis upon which to conclude that Orica’s shotfirer employees were “eligible employee[s]” for the purposes of the Administration Act. Insofar as the declaratory relief that his Honour granted proceeded, as it did, on a contrary holding, it should, Orica submits, be set aside.

52    Given that we would uphold appeal ground 1—and given that, save for the existence within Orica of the Minova business prior to 1 March 2022, no additional evidential basis was proffered to support the proposition that Orica was “otherwise engaged” in the black coal mining industry for the purposes of cl 4.3(g) of the BCMI Award—it necessarily follows that the declaratory relief that was granted is in need of refinement.

53    Orica maintains that it should be set aside in its entirety because it cannot properly be said that, by reason of the Minova business, it was “otherwise engaged” in the black coal mining industry. That is the subject of appeal ground 4. For reasons to which attention will shortly turn, we do not accept that the learned primary judge erred in the manner alleged by appeal ground 4. That may or may not impact upon the nature of the relief that should be granted in the present appeal. To that question it will be necessary later to return.

Ground 4: Significance of the Minova business

54    By its written submissions on the appeal, Orica addressed ground 4 as follows (references omitted, emphases original):

…the question [posed by cl 4.3(g) of the BCMI Award] is whether ‘the employer’ is otherwise engaged in the coal mining industry. That directs attention to the employer as an entity. While it is uncontroversial that an employer may be engaged in more than one industry (as the primary judge said: [Primary Judgment] [47]), it must nevertheless be possible to say that Orica is otherwise engaged in the black coal mining industry in the sense of that being the (or a) substantial character of its enterprise. That assessment necessitated a comparison of features of Orica’s business that may point to it being engaged in the black coal mining industry relative to other features of its business that did not. It was not open to the primary judge to subdivide Orica’s business and focus only on that part of the business which might be said to fall within the black coal mining industry. To do so distorted the assessment of the industry in which Orica was engaged.

The difficulty with the primary judge’s approach is apparent on the facts of this case. On that approach, Orica was otherwise engaged in the black coal mining industry by reason of Minova alone, without regard to any other part of Orica’s business. But it was the other part of Orica’s business – not the Minova part – through which Orica supplied shotfiring and other explosive services. The effect of the primary judge’s approach to cl 4.3(g) was to bring services that would otherwise be excluded from the black coal mining industry into that industry by the sidewind of a small, discrete and unrelated part of Orica’s business. This is not a practical interpretation that avoids inconvenience or injustice.

55    Orica’s submission went further to suggest that “…cl 4.3(g) should be construed to operate by reference to the relevant part of the business or enterprise – being the part through which shotfiring or other explosive services were supplied”.

56    With respect, that last submission is difficult to reconcile with the earlier observation that “…the question is whether ‘the employer’ is otherwise engaged in the coal mining industry”. That is the language that is reflected in cl 4.3(g) of the BCMI Award: can it be said that an employer that supplies shotfiring services is, otherwise than thereby, engaged in the black coal mining industry?

57    Whether an employer operates in a particular industry turns upon the nature or character of the enterprise in which it is engaged: Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348, [51] (Allsop P, with whom Giles and Bell JJA agreed). Where, as here, an employer is engaged in multiple enterprises arranged amongst separate divisions (or other organisational units), the analysis to be undertaken is no different. The fact that an employer might operate more than one business means nothing more than that it might be engaged in more than one industry; a reality that the law has recognised at least since R v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51, 57 (Latham CJ, with whom Rich and Williams JJ agreed in the result).

58    In R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, the High Court had occasion to consider whether a body charged with administering a statutory scheme that provided compensation to the injured victims of road traffic accidents was “in the business of insurance”. Mason J (with whom Gibbs, Stephen and Aickin JJ agreed, Murphy J agreeing in the result; Barwick CJ dissenting) accepted that different parts of the governing statute invested in the board different functions, not all of which were in the nature of insurance. That was said to necessitate a finding that the board as a whole was not so engaged. His Honour observed (at 589):

The simple answer to this argument is that it is quite possible, as in the present case, for a person or body to be engaged in several activities, one of which can properly be described as “the business of insurance”. It is in my opinion, a misconceived approach to attempt to characterize the functions of the Board in their totality, and there is certainly nothing in the present case which warrants such an approach. If, as I have concluded, the Board is indeed engaged in “the business of insurance” under Pt III of the Act, it is nothing to the point that the Board is not so engaged under Pt IV.

59    Presently, there is little if anything about the nature of the Minova business that is controversial (and nothing about the learned primary judge’s findings on that front that is challenged). Minova provided various services at underground black coal mines, which were apt to situate it “in” the black coal mining industry for the purposes of the BCMI Award. Neither of those propositions is challenged on appeal and, with respect, rightly so.

60    Instead, Orica charges the learned primary judge with having erred by focusing upon the nature of the business carried out by its Minova division (prior to its divestment) rather than its other (and, by all accounts, more substantial) explosives business, within which the relevant shotfiring employees were engaged. Because that business was “not otherwise engaged in the black coal mining industry”, it says, cl 4.3(g) of the BCMI Award—or the exception to the exception—was not engaged. Its submission proceeds as though the words “an employer” in cl 4.3(g) of the BCMI Award are to be read as “a business”.

61    That’s not what the award definition contemplates. The reference in cl 4.3(g) to “an employer” can only be a reference to a person, juridical or otherwise, who is a counterparty to a contract of employment with an employee. It is not a reference to the business units through which are organised, often somewhat amorphously, the various activities in which such a person engages. Thus (at least for present purposes), an employer’s engagement in an industry is binary: via the character of the enterprise in which it is engaged, it either is in a particular industry or it is not. It cannot be (again, at least for present purposes) in a particular industry in some senses but not others.

62    It is beyond debate that Orica was, prior to its divestment of the Minova business, engaged in multiple enterprises. That one of them—the one operated by its Minova division—was involved in activities sufficient to engage the award definition of “black coal mining industry” is equally clear.

63    That is sufficient to constitute Orica—the juridical person cast as “an employer”—as being “engaged in the black coal mining industry” for the purposes of cl 4.3(g) of the BCMI Award. The fact that, via a different organisational unit or part of its corporate architecture, Orica maintained a substantial and separate undertaking that did not partake of activities sufficient to engage that definition is irrelevant. To borrow from the observation of Mason J: if Orica is (or was) engaged in the black coal mining industry by reason of the activities of its Minova business, it is nothing to the point that it is (or was) not so engaged by reason of its other businesses.

64    The learned primary judge’s analysis of the Minova business’s character and its significance to the application here of cl 4.3(g) of the BCMI Award was orthodox and we respectfully agree with it. Appeal ground 4 is not made good.

Conclusions

65    The appeal should be allowed in part—specifically, so as to correct the relief that was granted upon the premise that the shotfirers that Orica had engaged at black coal mines “as and from 2013” were “eligible employees” under the Administration Act. As we have concluded, they were “eligible employees” only for part of that period.

66    The parties’ submissions on the appeal contemplated the possibility that the court might conclude as we have. By its written submissions, Orica accepted that its success on grounds 1 and 3, coupled with a failure on ground 4, would mean that the first and fourth of the declaratory orders from which the appeal is brought (see above, [28]) “…should be limited to the period from 2013 to 28 February 2022”. CMIC expressed the same view at the hearing of the appeal.

67    The second and third of his Honour’s declaratory orders appear not to be affected by our conclusions, as do the substantive (that is to say, non-declaratory) orders that were ultimately made (see above, [27]).

68    Having not heard from them as to how, specifically and given the reasoning herein, the declaratory relief from which the appeal proceeds might be “limited”, we are inclined for now to make no substantive orders in disposition of the appeal; but, instead, to invite the parties to confer and agree upon appropriate relief (including as to costs, both of the appeal and of the proceeding below). In the event that no such agreement can be reached, the parties shall have leave to file short submissions (no more than five pages) identifying what relief ought to be granted and why; after which the court will, subject to objection, make final orders on the papers.

Associate:

Dated:    15 May 2025

REASONS FOR JUDGMENT

HATCHER J:

69    I have had the benefit of reading the judgment of Collier and Snaden JJ in draft. I gratefully adopt their exposition of the subject matter of the appeal, the reasoning and conclusions in the Primary Judgment, the appeal grounds and the notice of contention, and the submissions advanced in respect of these by the parties. I agree with their conclusions as to the disposition of the grounds of appeal and the notice of contention. However, my reasons depart in some respects from theirs in a manner which may affect the ultimate disposition of the appeal. In stating my reasons, I adopt the defined terms and abbreviations used by Collier and Snaden JJ.

70    As outlined in the Primary Judgment at [36]-[37], both parties agreed below that the expression “otherwise engaged in the black coal mining industry” (emphasis added) in cl 4.3(g) of the BCMI Award was to be construed on the basis that, in assessing whether the employer was engaged in the black coal mining industry, its provision of shotfiring services at black coal mines was to be disregarded (agreed construction). Thus, for the exclusion in cl 4.3(g) not to apply, it was necessary to search for some activity of the employer other than the provision of shotfiring services which could be characterised as involving engagement in the black coal mining industry. As a result, there was a focus upon whether Orica’s Minova business, which was at least in Australia solely concerned with the provision of ground support and geotechnical services to the operators of black coal mines (Primary Judgment at [80]), was of a nature and sufficiency to bring Orica within the black coal mining industry. That was the case notwithstanding that a significant part of the parties’ agreed statement of facts, and the evidence, was concerned with the substantiality of Orica’s shotfiring business and the degree of its integration into the coal mining operations to which Orica’s shotfiring services were provided (Primary Judgment at [39]).

71    The primary judge plainly had difficulty in accepting the parties’ agreed construction of cl 4.3(g), to the point where he articulated an alternative approach to the meaning of “otherwise” in the provision (alternative construction). The primary judge described his remarks about this as “provisional” (Primary Judgment at [41]) because, as a result of the parties’ agreed position, he had not had the advantage of hearing argument about it. That part of the primary judgment which sets out the alternative construction (Primary Judgment at [41]-[43]) is quoted in full in the judgment of Collier and Snaden JJ. In summary, the primary judge took the provisional view that “otherwise” in cl 4.3(g) was to be read as meaning “in any event”, so that whether an employer falls within the black coal mining industry for the purpose of cl 4.3(g) would turn on whether the employer’s shotfiring activities were such as to permit it to be characterised as being engaged in the black coal mining industry. However, having stated this alternative construction, the primary judge then went on to determine whether the exclusion in cl 4.3(g) applied on the basis of the agreed construction.

72    By Ground 2 of its appeal, Orica challenges the primary judge’s alternative construction in that it contends that he erred by construing “otherwise” in cl 4.3(g) as meaning “in any event”. This challenge is articulated in its submission. In its submissions, the CMIC resists this ground of appeal and defends the primary judge’s alternative construction — a position at variance with the agreed position at first instance. The result is that, unlike the primary judge, we have had the benefit of full argument on this issue and are consequently in a position to determine it. It is true that Ground 2 is hypothetical in the sense that the primary judge proceeded on the basis of the parties’ agreed construction of cl 4.3(g), rather than his postulated alternative construction, in determining that Orica was engaged in the black coal mining industry. Nonetheless, the proper construction of cl 4.3(g) informs the consideration of Grounds 1, 2 and 3 of the appeal and the notice of contention, as well as potentially the ultimate disposition of the appeal, for reasons that will be explained.

73    It is manifest, textually and contextually, that the definition of “black coal mining industry” constituted by cll 4.2 and 4.3 of the BCMI Award, operating in combination, was drafted in a way intended to preserve the status quo concerning the meaning and scope of the black coal mining industry which existed prior to the establishment of the modern award system. Textually, this is made clear by the overriding element of the definition in the first sentence of cl 4.2 that the “black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal”. The note at the foot of cl 4.3 amplifies this by referring, as an “example”, to a 1982 decision of the Coal Industry Tribunal. Contextually, the decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) which determined the terms of the BCMI Award (Re Request from the Minister for Employment and Workplace Relations – Award Modernisation (2008) 177 IR 364; [2008] AIRCFB 1000) relevantly stated, in respect of the coverage clause (at [156]-[157]):

[156] … We note that the stated goal of the CFMEU and the CMIEG was to achieve a coverage clause that as closely as possible reflects the status quo in terms of the existing application of the key federal pre-reform awards both in relation to the kinds of employers to whom those awards apply and the extent to which the awards apply to such employers. We agree with that goal and intend that the award we have made should neither expand nor contract the reach of the key pre-reform awards both in relation to the kinds of employers to whom those awards apply and the extent to which the awards apply to such employers…

[157] However, we are concerned that the clause as drafted is not simple to understand nor easy to apply. In particular, contractors who perform some work at or about coal mines may have difficulty in determining whether the award covers them. We acknowledge that significant attempts were made by the parties to agree on a form of words that described the industry in a clear and direct way. We intend to vary cl.4 before the award commences so that it contains a clearer description of the black coal mining industry albeit a description that reflects as closely as possible the status quo. We recognise that the difficulties in developing such a description are substantial and that this should not be done without further consultation with interested parties.

74    It should be noted that the AIRC’s stated intention to vary the coverage clause of the BCMI Award before it took effect (on 1 January 2010) was never put into effect, no doubt reflecting the difficulty in drafting a provision which captured the effect of a range of decisions of courts and tribunals made over many decades concerning the scope of the black coal mining industry.

75    That the definition of “black coal mining industry” in cll 4.2 and 4.3 of the BCMI Award was intended to preserve the status quo meaning was accepted by White J in Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 (Bis) at [28] and [39] and by the primary judge at [31] and [41]-[42] of the Primary Judgment. In my view, this is the principal contextual consideration guiding the construction of the constituent provisions of cll 4.2 and 4.3, and those provisions should be construed consistent with the clear intention to preserve the status quo meaning of “black coal mining industry” to the extent permitted by the language of the provisions.

76    Although the exclusions set out in paras (a)-(g) of cl 4.3 are not, unlike paras (a)-(d) of cl 4.2, stated to be subject to the overarching element of the definition in the first sentence of cl 4.2 (“black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal”), it appears that most if not all of those paragraphs can be referenced back to prior court or tribunal decisions relevant to the scope of the black coal mining industry. In Bis at [76] and [82], White J identified the decisions from which he considered paras (a), (b), (e) and (f) of cl 4.3 to have emanated. In respect of cl 4.3(g), White J in Bis at [82] and the primary judge at [35] of the Primary Judgment accepted that this exception reflected the decision of a Full Bench of the AIRC in Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited [2005] AIRC 622 (Dyno Nobel). The conclusion of the primary judge in this respect was not the subject of challenge in this appeal.

77    Dyno Nobel concerned whether shotfirers employed by Dyno Nobel Asia Pacific Limited (Dyno Nobel) were eligible to be members of the Construction, Forestry, Mining and Energy Union (CFMEU) such as to enable the CFMEU to engage in an industrial dispute about the terms of their employment. The Full Bench categorised the relevant part of the CFMEU’s eligibility rule, which referred to “…employees engaged in or in connection with the coal and shale industries…”, as an “industry rule” such that the question required to be determined was whether the employer’s business could be characterised as being one in or in connection with the coal industry. The Full Bench applied the “substantial character” test, derived from R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123; [1948] HCA 9, to answer this question. Notwithstanding that the Full Bench accepted that the work of the shotfirers was “an integral part of open cut coal mining” (at [53]), it characterised the substantial character of Dyno Nobel’s business as being in an industry other than the coal industry. The Full Bench said:

[59] The predominant purpose of the single integrated business operated by Dyno Nobel is the manufacture and supply of explosives. This confers a “substantial character” that places the business of Dyno Nobel in the explosives industry or, more generically, the chemical industry. The issue comes down to whether, because a small number of Dyno Nobel employees perform some work that can be regarded as work in the coal industry (the back-filling of shot holes and shot firing work performed by between 8 and 14 employees and the devising of blast patterns by one technical adviser), the single integrated business of Dyno Nobel also has a “substantial character” that places it in or in connection with the coal industry within the meaning of Rule 2D of the CFMEU rules. In our view, the fact 8 out of some 160 operational employees perform shot firing as a relatively small part of their overall work for Dyno Nobel, that a further 6 employees occasionally perform shot firing on an ad hoc or relief basis and that one technical adviser sometimes devises blast patterns for coal mining companies (which together accounts for about one quarter of one percent of Dyno Nobel’s revenue) does not give the single integrated business of Dyno Nobel an additional “substantial character” as a business in or in connection with the coal industry. When considered in the context of the business of Dyno Nobel as a whole, these activities are too minor and incidental to confer an additional character on the business of Dyno Nobel that could properly be described as “substantial”. Rather, these activities are properly to be seen as the supply of a service to employers in one industry by an employer whose business is in another industry…

78    The above passage makes it clear that the Full Bench, in determining the substantial character of Dyno Nobel’s business, considered the work of the shotfirers in the context of Dyno Nobel’s business activities as a whole. It did not disregard the work of the shotfirers for the purpose of the analysis. The primary judge’s provisional view (at [43]) was that cl 4.3(g) could be construed in a way consistent with the Dyno Nobel decision by reading “otherwise” as meaning “in any event”. Orica submits that this approach was in error because the ordinary meaning of “otherwise” is “in another way” or “in a different manner”, and it does not mean “in any event”. Orica thus submits that, applying the ordinary meaning, cl 4.3 should be read as meaning that the exclusion applies where the employer is not in the black coal mining industry “other than by reason of the employer’s shotfiring and other explosive services activities”.

79    It may be accepted that the construction advanced by Orica is available on the language used in cl 4.3(g), considered in isolation. However, the result would be that cl 4.3(g) operates in a manner that is inconsistent with the ratio in Dyno Nobel, to which it was intended to relate, and is thus also inconsistent with the manifest purpose of the definition of “black coal industry” in cll 4.2 and 4.3 to preserve the decisional status quo. Contrary to Orica’s submissions, I consider that cl 4.3(g) is capable of being read in a way consistent with both its language and the identified purpose of the definition as a whole. As the CMIC submits, based on the Macquarie Dictionary definition, the adverb “otherwise” has the ordinary meaning “in another manner, differently” or “other or different; of another nature or kind”. If the premise of the provision is that whether the employer is in the coal mining industry is to be determined by the application of the “substantial character” test (as in Dyno Nobel), then it is plain that this calls for an assessment to be made of the entirety of the employer’s relevant business activities to determine in which industry or industries the employer falls. This assessment includes the shotfiring or explosive services provided, but considered in the broader context of the substantial character of the employer’s business(es) and not in isolation. This distinction is the work which may be assigned to the use of “otherwise” in cl 4.3(g). Thus, cl 4.3(g) may be read as meaning: the supply of shotfiring or other explosive services is not included in the black coal mining industry where the employer providing the services is not itself engaged in that industry. That is consistent with both the language of the provision and its purpose of preserving the status quo represented by Dyno Nobel.

80    This approach avoids the illogical results produced by the construction of cl 4.3(g) upon which the parties agreed below. The agreed construction would result in shotfirers employed by an employer whose only business activity is the provision of shotfiring services on a coal mining lease in a way wholly integrated with mining activities being excluded from the coverage of the BCMI Award because the employer engages in no other business activity related to black coal mining. An approach consistent with Dyno Nobel avoids this outcome because, in that case, the substantial character of the employer’s business plainly brings it within the black coal mining industry. It also avoids an outcome, which this case exemplifies, whereby the award coverage of shotfirers working on a mining lease is rendered entirely dependent upon ascertaining the industry into which unrelated parts of the employer’s business fall.

81    I propose to address the grounds of appeal, and the notice of contention, in light of the construction of cl 4.3(g) which I prefer. It is convenient to deal with Ground 1 of the appeal and the notice of contention together. I agree with Collier and Snaden JJ that Ground 1 should be upheld and the notice of contention rejected. Starting with the BCMI Award provisions, it must be the case that the cl 4.3(g) exception applies to para (ii) of the definition of “Coal mining employee” in cl 4.1, otherwise it would have no work to do. Under para (i) of the definition, the employees must be employed by an employer “engaged in the black coal mining industry”. Because, as earlier explained, the cl 4.3(g) exception does not apply where the employer is engaged in the black coal mining industry, it does not effect any “carve-out” from para (i) of the definition. Consequently, cl 4.3(g) can only have operation as an exception to para (ii) of the definition. Its practical effect is that shotfiring employees who are employed in the black coal mining industry and whose duties are directly connected with the day-to-day operation of a black coal mine will only be covered by the BCMI Award if they are coal mining employees under para (i) of the definition. In other words, cl 4.3(g) operates as a limitation upon the scope of para (ii) of the definition in respect of shotfiring employees. This retains consistency with Dyno Nobel.

82    Turning to the statutory provisions, the current definitions of “black coal mining industry” and “eligible employee” in s 4(1) of the Administration Act were introduced by the Coal Mining Industry (Long Service Leave Funding) Amendment Act 2009 (2009 Amendment Act). Not only did the former definition adopt the meaning of “black coal mining industry” given in the BCMI Award, but it is also readily apparent that paras (a) and (b) of the latter definition picked up (apart from the reference to the award classifications) the definition of “coal mining employees” in cl 4.1 of the BCMI Award (as Raper J observed in Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd (2023) 322 IR 129; [2023] FCA 68 at [22]). That, to my mind, indicates a parliamentary intention to substantially align the meaning of “eligible employee” in the Administration Act with the coverage of the BCMI Award as it was on 1 January 2010. This is confirmed by the Explanatory Memorandum for the Coal Mining Industry (Long Service Leave Funding) Amendment Bill 2009 which, in relation to the definition of “eligible employee”, stated: “The new definition is consistent with the definition of a coal mining employee in the [BCMI] Award (see cl 4.1(b) of the [BCMI] Award)”. Where the legislature intended, by the 2009 Amendment Act, to expand the scope of the long service leave scheme established by the Administration Act beyond the coverage of the BCMI Award, it did so in express terms by adding additional categories of employees to the definition of “eligible employee” (originally paras (c)-(e) of the definition, now paras (c) and (d)).

83    In that context, I do not consider that the definition of “eligible employee” in s 4(1) of the Administration Act can be construed as if the reference to “black coal mining industry” in para (b) has the same meaning as in the BCMI Award but without cl 4.3(g) (see Primary Judgment at [23]). There are two principal reasons for this. First, for the same reasons earlier stated with respect to the interaction between cll 4.1 and 4.3(g) of the BCMI Award, if cl 4.3(g) does not apply to para (b) of the definition, it has no work to do at all since it cannot operate as an exception to para (a) of the definition. Such an approach would effectively rewrite the definition of “black coal mining industry” in s 4(1) by excising in whole cl 4.3(g) of the incorporated award definition. This outcome is contrary to both the text of the statutory definition and the intention of the legislature to take the BCMI Award definition as they found it. It would, as Orica submits, result in the statutory long service leave scheme having a wider coverage of employees than the BCMI Award, notwithstanding the legislative intention to align them (except where stated otherwise by the addition of other categories of employees). Second, I respectfully disagree with the conclusion that, because para (b) of the definition of “eligible employee” has as its discrimen the location of the employee, and the exclusion in cl 4.3(g) requires consideration of the industry of the employer, a contrary intention can be discerned in para (b) such as to make the definition of “black coal mining industry” in s 4(1) inapplicable (Primary Judgment at [22]-[23]). Clause 4.3(g) is an exclusionary provision which is plainly intended to excise something from the position that would otherwise apply. That the excision is constructed on a different principle than para (b) of the “eligible employee” definition does not give rise to any irreconcilability manifesting a contrary intention. The legislative intent, as effected by the incorporation of the BCMI Award definition, may be expressed as follows: shotfiring employees are not “eligible employees” unless they fall within para (a) of the definition by virtue of them being employed by an employer engaged in the black coal mining industry. The outcome which pertains on a plain reading of the statutory text is entirely logical once it is understood that cl 4.3(g) of the BCMI Award definition was intended to preserve the Dyno Nobel outcome, and the legislature intended to align the operation of the long service leave scheme with the coverage of the BCMI Award unless expressly stated otherwise.

84    As to Ground 2, I agree with Collier and Snaden JJ that this ground, which challenges the primary judge’s alternative construction of cl 4.3(g), must be rejected because the primary judge determined the matter on the basis of the agreed construction rather than his alternative construction. In any event, for the reasons earlier stated, I consider that the alternative construction is the correct one and the challenge to it must therefore fail.

85    Ground 3 is consequential upon Grounds 1 and 2. By this ground, Orica contends that the primary judge erred in granting declaratory relief that extended past 28 February 2022 — the date on which, it is agreed, Orica divested itself of its Minova business — without having found that Orica continued otherwise to engage in the black coal mining industry after that date so as to make the cl 4.3(g) exception inapplicable. Since I consider that Ground 1 should succeed, it is necessary to consider Ground 3. Because the primary judge determined that the cl 4.3(g) exception did not apply to Orica only by reason of his findings concerning the Minova business, it follows that those findings could not sustain the first and fourth declaratory orders made by the primary judge, since the first order declares that Orica’s shotfiring employees are “eligible employees” under the Administration Act from 2013 on an implicitly ongoing basis and the fourth order declares that Orica has failed to pay the CMIC levies imposed by the Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 (Cth) from 2013 “to date” (with the orders having been made on 6 February 2024). To that extent, Ground 3 should be upheld.

86    However, because the primary judge proceeded on the basis of the agreed construction, which necessarily led to a focus on the Minova business, there has been no consideration as to whether, on the proper construction of cl 4.3(g), Orica may have remained “otherwise engaged in the black coal mining industry” after 28 February 2022 by reason of its shotfiring activities considered in the context of its business as a whole. There may be a sufficient evidentiary foundation to allow this issue to be determined having regard to the primary judge’s observation at [39] of the Primary Judgment, to which I have earlier referred, that a significant part of the agreed statement of facts and the evidence concerned the substantiality of Orica’s shotfiring business and the degree of its integration into the coal mining operations for which the shotfiring services were provided.

87    For this reason, I would hear from the parties as to whether, in addition to an appropriate adjustment to the first and fourth declaratory orders, there should be a remittal of the proceeding pursuant to s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) for further hearing and determination of the question of whether the cl 4.3(g) exception applied to Orica after 28 March 2022.

88    As to Ground 4, I agree that this appeal ground should be rejected for the reasons stated by Collier and Snaden JJ.

89    The appeal should therefore be upheld in part, and the parties should be heard as to the alternative or further orders to be made and the costs of the appeal.

Associate:

Dated:    15 May 2025