FEDERAL COURT OF AUSTRALIA
Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd [2023] FCA 68
ORDERS
COAL MINING INDUSTRY (LONG SERVICE LEAVE FUNDING) CORPORATION Applicant | ||
AND: | HITACHI CONSTRUCTION MACHINERY (AUSTRALIA) PTY LTD (ACN 000 080 179) Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The parties confer with a view to agreeing upon the form of the orders to be made by the Court to give effect to the reasons published today, and in the event of agreement, submit the orders to the Court where they will be made in their absence.
2. In the absence of agreement on the form of the appropriate orders by 17 February 2023:
(a) the applicant file and serve by 4pm (AEDT) on 17 February 2023 the form of orders it proposes to give effect to the Court’s judgment today;
(b) the respondent file and serve by 4pm (AEDT) on 22 February 2023 the form of orders it proposes to give effect to the Court’s judgment today.
3. The matter be adjourned until 28 February 2023 for consideration of the orders to be made and the subsequent timetabling of the remainder of the matter.
4. There be liberty to the parties to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This application concerns whether the applicant (Coal LSL), a federal statutory corporation which administers the Coal Mining Industry (Long Service Leave) scheme (LSL scheme) is entitled to declaratory relief (relating to four employees of the respondent (Hitachi)) and the ordering of pecuniary penalties against Hitachi by reason of it having failed to pay the relevant levy associated with the accrual of long service leave to the applicant in respect of four employees of the respondent.
2 The applicant is responsible for the administration of the following legislation: the Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 (Cth) (the Levy Act), the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth) (the Collection Act), and the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (the Administration Act) (collectively referred to as the Scheme).
3 The Scheme constitutes a unique long service leave arrangement for the black coal mining industry whereby an employee accrues long service leave based on an employee’s service in that industry, rather than service with a particular employer.
4 The four relevant employees, who are the subject of the application, held the following positions with the respondent over the following periods:
Employee | Period employed by the Respondent | Role held | Where work performed |
Mr Garland | May to mid-June 2010 | Mechanical Fitter – performing bench repair work on dump truck “final drive” components | Muswellbrook branch |
June 2010 until Feb 2014, Nov 2017 until Dec 2020 | Mechanical Fitter – performing maintenance and repair work on Hitachi mining equipment | At various black coal mine sites | |
Feb 2014 until Nov 2017 | Shift Coordinator – supervise crews performing maintenance and repair work on the hydraulic loading shovel and dump trucks | At or about the Liddell mine (save for two months at the Glendell mine) | |
Mr Gee | Jan 2011 to Nov 2019 | Fitter – performing maintenance and repair work on Hitachi equipment | At or about the Liddell Mine (save for six months between 2016 and 2017 at the Glendell mine) |
Mr Stair | March 2014 to date | High voltage electrician (April 2014 to about 2019), maintaining and repairing hydraulic loading shovel and dump trucks and then from 2019 as a Team Leader of other employees and continuing to maintain and repair work on the hydraulic loading shovel and dump trucks. | At or about the Liddell mine |
Mr Cooper | April 2010 to Dec 2020 | Mechanical Fitter – performing maintenance and repair work on Hitachi mining equipment | At various black coal mining sites |
5 The respondent’s enterprise involves supplying new and used earthmoving and materials handling equipment, and after-sales maintenance support, to customers in a wide range of industries, including the black coal mining industry. Part of the reason for the disagreement between the parties, regarding the respondent’s employees being covered by this legislative scheme, is that the work the relevant employees were performing for the respondent’s black coal mining clients comprises only 2.6% of the total annual revenue of Hitachi’s enterprise. The respondent operates through a network of branches across Australia grouped into four geographical regions, the Eastern region being where the relevant employees were employed. The relevant Muswellbrook branch derives most of its revenue from black coal mining given its geographical location. By contrast, the Western region derives most of its revenue from iron ore mining.
6 The evidence in chief of all witnesses was given by affidavit.
7 The applicant led evidence from each of the relevant employees together with evidence from Mr Trent Sebbens, solicitor for the applicant. None of the applicant’s witnesses were required for cross-examination.
8 The respondent led evidence from Mr Stephen Smith (solicitor for the respondent), Mr Richard Trench (Service Manager), Mr Jason Gleeson (Regional General Manager – Eastern) and Mr Ricardo Moledo (Director – Product Support). Only Mr Gleeson and Mr Moledo were required for cross-examination. Whilst there are differences in the evidence of the witnesses, I am of the view that each witness gave their evidence honestly and endeavoured to assist the Court.
9 The first stage of the hearing, and for which these reasons are confined, concerns first questions of liability; and secondly the applicability of s 14(1)(d) of the Limitation Act 1969 (NSW).
10 The question of liability concerns whether the relevant employees comprise “eligible employees” within the meaning of s 4 of the Administration Act as follows:
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 (limb (a)); 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 (limb (b)); 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.
(Descriptions for limbs (a) and (b) added; Emphasis in original.)
The three issues to be determined
11 The parties agree that there are three issues which require determination in these proceedings:
(1) Whether the relevant employees were “eligible employees” within limb (b) of the s 4 definition above, because they:
(a) were employed in the black coal mining industry;
(b) carried out their duties at or about a place where black coal is mined; and
(c) had duties which were directly connected with the day-to-day operation of a black coal mine.
(2) Whether the relevant employees were “eligible employees” within limb (a) of the s 4 definition above, because they:
(a) were employed in the black coal mining industry;
(b) were employed by an employer engaged in the black coal mining industry; and
(c) had duties directly connected with the day-to-day operation of a black coal mine.
(3) Whether any recovery of outstanding levies is subject to the limitation period prescribed in s 14(1)(d) of the Limitation Act.
12 For the reasons which follow, I conclude the following:
(1) The four employees were eligible employees within limb (b);
(2) The four employees were not eligible employees within limb (a); and
(3) The outstanding levies are not subject to the limitation period prescribed in s 14(1)(d) of the Limitation Act because the Scheme covers the field. If I had been required to, I would have found in the alternative that ss 10(3) applied and 18 of the Limitation Act did not apply.
13 The Commonwealth scheme for long service leave in the coal mining industry was first introduced in 1949 by way of the following legislation: the States Grants (Coal Mining Industry Long Service Leave) Act 1949 (Cth); Coal Excise Act 1949 (Cth); complementary legislation in participating States; and amendments to the Excise Tariff Act 1921 (Cth). The scheme then granted long service leave benefits to black coal miners under Federal awards made by the previous Coal Industry Tribunal. The scheme was operated by the Commonwealth collecting an excise per tonne of coal produced, and making grants to participating States for the reimbursement of employers.
14 In 1991, the scheme underwent substantial review leading to the introduction of the Coal Mining Industry (Long Service Leave Funding) Act 1992 (Cth) (as the Administration Act was then called), the Levy Act, and the Collection Act, as well as the Coal Tariff Legislation Amendment Act 1992 (Cth) providing for the removal of the long service leave component of the excise duty on coal. It was at this time that the applicant was established, and entitlements were funded by an employer levy scheme, whereby a levy was imposed on wages paid to employees, and employers were reimbursed by the relevant State which was in turn reimbursed by a trust fund. Entitlements to long service leave under this scheme arose from Federal industry awards. Part of the reason for the imposition of the levy, as contained in the Explanatory Memorandum, Coal Mining Industry (Long Service Funding) Bill 1992, was by reason of the identification of a number of deficiencies within the Scheme including a $250.2 million unfunded liability for untaken long service leave as at 30 June 1990.
15 The Coal Act 1992 defined, in s 4, an “eligible employee” to mean:
(a) a person employed in the black coal mining industry under a relevant industrial instrument the duties of whose employment are carried out at or about a place where black coal is mined; or
(b) a person employed by a company that mines black coal the duties of whose employment (wherever they are carried out) and are directly connected with the day to day operation of a black coal mine; or
(c) a person permanently employed on a full-time basis in connection with a mine rescue service for the purposes of the black coal mining industry the duties of whose employment require him or her to be located at a mines rescue station; or
(d) any prescribed person who is, or is any person who is included in a prescribed class of persons who are, employed in the black coal mining industry;
but does not include:
(e) a person the duties of whose employment are performed in South Australia; or
(f) a person who is, or a person who is included in a class of person who are, declared by the regulations not be an eligible employee or eligible employees for the purposes of this Act.
16 Notably, the Coal Act 1992 did not require that the eligible employee be covered by a “relevant industrial instrument” in the “black coal mining industry”, given the employee could be covered by sub-ss (b) to (d). However, as a matter of substance, in large measure, the only other available source of entitlement came from sub-s (b) which required that the employer be limited to “a company that mines black coal the duties of whose employment (wherever they are carried out) and are directly connected with the day to day operation of a black coal mine”. It also did not contain a definition of “black coal mining industry”. Whilst an employee did not need to be employed in the “black coal mining industry”, they did need to be employed by “a company that mines black coal” (a more restrictive definition than in the current legislation).
17 From the commencement of the Fair Work Act 2009 (Cth) (the FW Act) on 1 January 2010, Federal industry awards were superseded by modern awards under the FW Act. The FW Act precluded modern awards from containing long service leave terms, but existing award-based entitlements were preserved as a statutory entitlement under the National Employment Standards, pending development of national long service leave arrangements: ss 113, 155 of the FW Act.
18 By the Coal Mining Industry (Long Service Leave Funding) Amendment Act 2009 (Cth) (2009 Amendment Act), provision was made to ensure that employers were entitled to reimbursement from the fund in respect of long service leave payments they made to employees pursuant to the preserved entitlements in the FW Act: s 44(3) of the Coal Act 1992 (as at 1 January 2010).
19 Notably, the 2009 Amendment Act amended the definition of “eligible employee” and introduced a definition of “black coal mining industry”, both of which have operated at all relevant times and continue to operate.
20 The 2009 Amendment Act amended the definition of an “eligible employee” to comprise:
(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 in a mine rescue service for the purposes of the black coal mining industry; or
(d) a prescribed person declared by the regulations not to be an eligible employee for the purposes of this Act.
21 Accordingly, by reason of the FW Act amendments, a person could no longer fall within the definition of “eligible employee” by virtue of being covered by “a relevant industrial instrument”. Sub-section (a) was amended and replaced by a broader definition replacing the previous sub-ss (a) and (b).
22 However, the definition of “eligible employee” picked up, in part, the definition of “coal mining employees”, from cl 4.1(b) of the Black Coal Mining Industry Award 2010, the coverage provision in the Award. Clause 4.1 is extracted in full 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.
(Emphasis in original.)
23 Furthermore, the 2009 Amendment Act inserted a definition of “black coal mining industry” and is now defined 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.
24 The Award defined, in cll 4.2 and 4.3, the “black coal mining industry” to have:
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: 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].
(Emphasis in bold in original; Emphasis in underline added.)
25 Justice White considered comprehensively, in Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374, at [43]–[75], the many court and tribunal decisions, before 2008 (when the Award was modernised and included reference to the meaning of “black coal mining” having the “same meaning” as those prior decisions). His Honour made a number of conclusions which could be drawn from those authorities about the term “black coal mining industry” and employment in that industry, at [76], which is extracted as follows:
This review of the authorities suggests that the following conclusions may be drawn about the term “black coal mining industry” and employment in that industry:
(a) the terms “coal mining industry” and “black coal mining industry” are not capable of clear definition: Drake-Brockman per Starke J at 59; R v Hickman at 614 (Dixon J). The difficulty of definition is reflected in cll 4.2 and 4.3 of the Black Coal Award;
(b) the industry is the production of black coal by mining operations. Those operations include the excavation of the coal from the seam; its removal from the pit; and the placement of coal on the surface in disposable form: Drake Brockman per Latham CJ at 56. This seems to be reflected in cl 4.2(a) of the Black Coal Award which states that the industry includes the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;
(c) the industry does not include all the forms of subsequent processing, treatment or use of black coal (Drake-Brockman at 56) but does include its processing at a coal handling or processing plant on or adjacent to a coal mining lease (cl 4.2(c));
(d) the industry does include the transportation of black coal on a coal mining lease (cl 4.2(c)) but not the haulage of the coal away from the mine site: R v Hickman;
(e) the mere fact that the activities are carried on at a mine site does not necessarily mean that they are undertaken in the coal mining industry;
(f) correspondingly, the fact that activities in connection with coal mining operations are carried on at locations geographically separate from the coal mine will not necessarily mean that the activities are not part of the coal mining industry;
(g) the control exercised by the mine operator of the work is an important consideration (Thiess Repairs; Transfield Services; CQ Industries);
(h) whether particular employment is in the black coal mining industry is to be determined as a question of fact by consideration of the “substantial character” of the industrial enterprise in which the employer and the employee are concerned (Thiess Repairs per Latham CJ at 130-1, 135; Poon Bros Case at 454-5) and by consideration of the degree of connection or separateness between the activity in question and the mining operations (Thiess Repairs per Dixon J at 140-1; Colliery Staff Case at 16; Central West at [50]); and
(i) some activities associated with coal mines have not been regarded as part of the coal mining industry. These include:
(i) the haulage of the coal by an independent contractor from the mine to an offsite location: R v Hickman and see cl 4.3(f);
(ii) the maintenance of equipment used in a mine by employees of an entity separate from the mine operator which is undertaken in a workshop separate from, but adjacent to, the mine: Thiess Repairs; Transfield Services; and
(iii) the provision of catering and cleaning services to mining companies by the employees of independent contractors: Poon Bros Case at 454-5; Re Spotless and see cl 4.3(e).
(Emphasis in original.)
26 The Explanatory Memorandum, Coal Mining Industry (Long Service Leave Funding) Amendment Bill 2009 (Cth) described the purpose of the amendments to the Scheme to include, inter alia:
… to ensure that the scheme applies universally in the black coal mining industry from 1 January 2010:
• the definition of ‘black coal mining industry’ in the Funding Act (which flows through to related legislation) will be aligned with the definition in the Coal Award; and
• the current long service leave entitlements in the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 (the main industry award) will be extended to all eligible employees who do not otherwise have an award-derived long service leave entitlement.
27 By the Coal Mining Industry (Long Service Leave) Amendment Act 2011 (Cth) (2011 Amendment Act), the Scheme and the 2009 Amendment Act were further amended to provide a minimum long service leave entitlement for all eligible employees, establish a regime for transition from the Federal industry award-derived long service leave scheme, and rename the Administration Act to its present name. The statutory scheme has not relevantly changed since 2011.
28 The regime for transition from the Federal industry award-derived LSL scheme (preserved under s 113 of the FW Act in respect of award employees) also extended the scheme’s operation to non-award employees by Sch 2 of the 2009 Amendment Act to the new statutory LSL scheme established by the 2011 Amendment Act.
29 Additionally, the 2011 Amendment Act provided greater powers to Coal LSL for the purposes of ensuring compliance with the scheme. These powers included the power to require persons to produce information or documents and standing to pursue alleged contraventions of a civil penalty provision on behalf of the Commonwealth (explained further below).
30 The 2011 Amendment Act also renamed the Administration Act to its present name (the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth)).
Relevant legislative provisions
31 Entitlements to long service leave are prescribed under Pt 5A of the Administration Act. These entitlements are based on aggregate “qualifying service” as an “eligible employee” (s 39A(2) of the Administration Act).
32 Periods of unauthorised absence and certain periods of “unpaid leave” or “unpaid unauthorised absence” are excluded for the determination of qualifying service (s 39A(2) of the Administration Act). The service does not need to be continuous but may be aggregated in one or more period(s), with the long service leave entitlement arising based on cumulative service of 8 years, except if a break between periods of qualifying service is for a continuous period of 8 years of more (s 39A(4) of the Administration Act). Section 39A provides:
Part 5A—Entitlement to long service leave
Division 1—Entitlement, amount and grant etc.
39A Entitlement to long service leave
General rule
(1) If an eligible employee completes a period of qualifying service that is, or periods of qualifying service that add up to, at least 8 years, the employee is entitled to long service leave under this Part in respect of that period, or those periods, of qualifying service.
Meaning of qualifying service
(2) A period of qualifying service by an employee is a period during which the employee is an eligible employee of one or more employers, but does not include any of the following:
(a) a period of unauthorised absence;
(b) a period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2-2 of the Fair Work Act 2009 (which deals with community service leave); or
(ii) a period of stand down under Part 3-5 of the Fair Work Act 2009, under an enterprise agreement that applies (within the meaning of that Act) to the employee, or under the employee’s contract of employment; or
(iii) a period during which the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation or under an industrial instrument; or
(iv) a period of leave or absence of a kind prescribed by the regulations for the purposes of this paragraph;
(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;
(d) any period during which a waiver agreement is in effect between the employee and an employer;
(e) any other period of a kind prescribed by the regulations for the purposes of this paragraph.
(3) For the purposes of subsection (2), if a casual employee is an eligible employee at any time during a week, the employee is taken to have been an eligible employee for the whole week.
Effect of break period once entitled to long service leave
(4) If:
(a) an employee ceases to be an eligible employee for a continuous period of 8 years or more; and
(b) at the time of so ceasing, the employee is entitled to long service leave under subsection (1) in respect of a period, or periods, of qualifying service (the employee’s previous qualifying service); and
(c) the employee becomes an eligible employee again;
paragraph (2)(c) does not apply in respect of the employee’s previous qualifying service.
(Emphasis in orginal.)
33 An eligible employee is entitled to 13 weeks leave for each 8 years of aggregate “qualifying service” in the black coal mining industry (ss 39A and 39AA of the Administration Act). The entitlement to leave is calculated in hours based on the working hours of the employee (s 39AA(2) of the Administration Act). Section 39AA provides:
39AA Amount of long service leave
(1) The number of hours of long service leave that an eligible employee is entitled to for a week of qualifying service completed by the employee is worked out using the formula in subsection (2).
(2) The formula is:
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 total number of hours worked by the employee as a casual employee during the week;
(ii) 35 hours.
(Emphasis in original.)
34 Employees may apply for, and employers are required to grant, long service leave (subject to providing a written response if it is not to be granted) (s 39AB of the Administration Act). The leave must be taken in spells of no less than 14 days (s 39AB(2) of the Administration Act). An employee who takes long service leave is to be paid by their current employer for the period of long service leave taken (s 39AC of the Administration Act). The payment for the period of leave is equal to the base rate of pay, plus incentive-based payments and bonuses, that would have been payable during the period if the person was not on leave (s 39AC of the Administration Act).
35 The qualifying service and leave entitlements (which are recorded as “LSL credits”) of the eligible employee are recorded by the applicant (ss 7(da) and 39AB(5) of the Administration Act).
36 Section 39AB of the Administration Act provides:
39AB Grant of long service leave
(1) An eligible employee may apply, in writing, to his or her employer to take a period of long service leave.
(2) The employee may only apply to take a period of long service leave that:
(a) is a single continuous period of at least 14 days (being equivalent to a number of hours of long service leave as agreed with the employer); and
(b) does not exceed the employee’s LSL credit at the time the leave is to be taken.
Note: An employee is taken not to be on long service leave on public holidays and during certain other periods of absence (see section 39AE).
(3) As soon as practicable, but no later than 14 days after the application is made, the employer must give the employee a written response:
(a) stating whether or not the employer grants the long service leave; and
(b) if the employer refuses to grant the long service leave—giving details of the reasons for the refusal.
Civil penalty: 60 penalty units.
(4) The employer may refuse to grant long service leave only on reasonable business grounds.
Civil penalty: 60 penalty units.
Meaning of LSL credit
(5) For the purposes of this section, the long service leave credit (LSL credit) of an eligible employee on a day (the calculation day) is the number of hours worked out as follows:
(a) first, add together the number of hours of long service leave that the employee is entitled to under section 39AA for each week of qualifying service completed by the employee before the calculation day;
(b) then, subtract the number of hours of long service leave (if any) previously granted to the employee under this section.
Note 1: The number of hours of long service leave that an employee is entitled to in respect of certain qualifying service may be affected by section 39CE.
Note 2: Division 4 of this Part provides other remedies for contraventions of civil penalty provisions.
(Emphasis in original.)
37 Employees may also be paid for long service leave if they cease to be an “eligible employee”, that is they are no longer employed in the black coal mining industry (s 39C of the Administration Act), and also in circumstances of ill health and retirement, redundancy, and death if relevant requirements are met (ss 39CA, 39CB and 39CC of the Administration Act).
38 An employer of an eligible employee, who grants leave and makes a payment for that leave, is reimbursed from the Fund for the payment (s 44 of the Administration Act). The reimbursement is made for the amount of long service leave hours (LSL credits) at the amount of eligible wages per hour, that is taken (cl 9 Employer Reimbursement Rules 2017 (Cth)). The calculation of eligible wages per hour is done by considering those hours the eligible employee received immediately before taking the leave, or if no longer employed then the amount immediately before the person left the employment (cl 9(1) Reimbursement Rules).
39 Accordingly, while an employer contributes a levy based on eligible wages for each month the eligible employee is employed, they will be reimbursed at the rate for the eligible wages at the time they are taken. The Fund is “pooled”, however the quantum of levy that an employer may have contributed for a particular eligible employee is not the same as the quantum of reimbursement that is made to the employer that grants and pays the leave. The amounts of levy contributed and the amounts which are reimbursed do not correspond.
40 The entitlements to long service leave under the Administration Act operate as “safety net” employment entitlements. The entitlements operate to the exclusion of provisions of the FW Act and State and Territory laws that deal with long service leave (ss 39E and 39EA of the Administration Act). Employees and employers may, however, agree to more generous entitlements under an industrial instrument (such as a modern award or enterprise agreement made under the FW Act) (s 39EB of the Administration Act). Sections 39E and 39EA provide:
Division 5—Relationship with other laws and industrial instruments
39E Relationship with the National Employment Standards
Despite section 61 of the Fair Work Act 2009, this Part applies in relation to eligible employees and their employers to the exclusion of Division 9 of Part 2-2 of that Act.
39EA Relationship with State and Territory long service leave laws
This Part applies in relation to eligible employees and their employers to the exclusion of a State or Territory law that deals with long service leave.
(Emphasis in original.)
41 Employers of “eligible employees” have a separate obligation to pay a levy under s 4 of the Levy Act, which the applicant submitted is “symbiotic with the obligation to grant and pay leave”:
Levy is imposed on eligible wages paid to eligible employees after the commencement of this Act.
42 The rate of the levy is prescribed as a percentage of the ‘eligible wages paid’, currently 2%: s 5 of the Levy Act; reg 6 of the Coal Mining Industry (Long Service Leave) Payroll Levy Regulations 2018 (Cth).
43 Importantly, liability for the levy rests with the “person who paid those wages”: s 6 of the Levy Act.
44 The Collection Act provides for the due date of payment of the levy and that an additional levy is payable by way of penalty if an amount of levy is not paid:
Subject to section 6, 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 by this Act to be made in respect of that month.
…
(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:
(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.
(Emphasis in original.)
45 For the purpose of determining the “eligible wages” of the “eligible employee” for which the levy is payable, the “eligible wages” comprise:
(a) For non-casual employees paid a base rate of pay (which has the same meaning as under the FW Act: s 3 of the Collection Act), the greater of:
(i) the “base rate of pay” including incentive-based payments and bonuses; or
(ii) 75% of the base rate of pay including incentive-based payments, bonuses, overtime and penalty rates and allowances (other than those for reimbursement of expenses) (s 3B(1) of the Collection Act);
(b) For non-casual employees paid an annual salary, the annual salary including incentive-based payments and bonuses, but excluding overtime, penalty rates and shift-loadings (s 3B(2) of the Collection Act); or
(c) For casual employees, the base rate of pay including incentive-based payments and bonuses (s 3B(3) of the Collection Act).
46 Section 9 of the Collection Act provides that the levy is a debt due to the Commonwealth:
9 Recovery of levy or additional levy
(1) An amount of levy, or an amount of additional levy under section 7, is a debt due to the Commonwealth, and payable:
(a) if the Corporation has given written notice to the person who is liable to pay the amount that a person specified in the notice is authorised, in lieu of the Corporation, to receive such an amount—to the specified person in such manner as is prescribed by the regulations or, if there are no such regulations, as that person directs; or
(b) otherwise—to the Corporation in such manner as is prescribed by the regulations or, if there are no such regulations, as the Board directs.
(2) An amount of levy, or an amount of additional levy under section 7, that is payable but has not been paid may be sued for and recovered by the Corporation or by the other person (if any) to whom the amount is payable, as the case may be, in any court of competent jurisdiction.
(3) The annual report prepared by the Board and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include particulars of:
(a) any amounts paid to, or recovered by, the Corporation or another person under this section during the period; and
(b) any proceedings brought by the Corporation to recover an amount under subsection (2) during the period.
(Emphasis in original.)
47 In addition to the payment of the levy, employers of eligible employees must submit “returns”, and also annual audited reports to the applicant, confirming that the levy has been paid, pursuant to ss 5 and 10 of the Collection Act:
(1) A person who employs an eligible employee at any time during a month must, within 28 days after the end of that month, make a return in accordance with subsection (2) in respect of that month.
Civil penalty: 40 penalty units.
(2) A return for the purposes of this section:
(a) must be made:
(i) if the Corporation has given written notice to the person who is required to make the return that a person specified in the notice is authorised, in lieu of the Corporation, to receive returns under this section—to the specified person in such manner as is prescribed by the regulations or, if there are no such regulations, as that person directs; or
(ii) otherwise—to the Corporation in such manner as is prescribed by the regulations or, if there are no such regulations, as the Board directs; and
(b) must be in accordance with a form approved by the Board; and
(c) must contain such information as is required by that form.
(3) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 30 penalty units.
Note 1: For offences of strict liability, see section 6.1 of the Criminal Code.
Note 2: For the physical elements of this offence, see subsection 3A(2) of this Act.
…
10 Requirement to give report to Corporation
(1) If a person employs an eligible employee at any time during a financial year, the person must, no later than 6 months after the end of the financial year, give to the Corporation a report prepared by an auditor that:
(a) states whether, in the opinion of the auditor, the person has paid all amounts of levy, or amounts of additional levy under section 7, that the person was required to pay in respect of the financial year; and
(b) if, in the opinion of the auditor, the person has not paid all amounts of such levy or additional levy—specifies in what respect and to what extent, in the opinion of the auditor, the person has not paid those amounts; and
(c) if, during the financial year, the person was paid an amount under Part 7 of the Administration Act—states whether, in the opinion of the auditor, the amount paid is correct; and
(d) includes reasons for the opinions contained in the report.
Civil penalty: 40 penalty units.
(2) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 30 penalty units.
Note 1: For offences of strict liability, see section 6.1 of the Criminal Code.
Note 2: For the physical elements of this offence, see subsection 3A(2) of this Act.
48 When an employer makes a payment of long service leave under Pt 5A of the Administration Act to an employee, the employer is entitled to reimbursement from the applicant of the payment made in respect of the long service leave in accordance with the Reimbursement Rules. The basis for this reimbursement can be found in s 44 of the Administration Act and rr 8 to 10 of the Reimbursement Rules, which are extracted as follows:
44 Reimbursement for payments relating to long service leave
(1) If an employer makes a payment under Part 5A to a person who is or was an eligible employee, the Corporation must pay the employer out of the Fund the reimbursable amount the Board decides in accordance with the Employer Reimbursement Rules.
(2) If an employer makes a payment under Part 5A to the legal personal representative of a deceased person who is or was an eligible employee, the Corporation must pay the employer out of the Fund the reimbursable amount the Board decides in accordance with the Employer Reimbursement Rules.
Note: Section 52B provides that an application may be made to the Administrative Appeals Tribunal for review of a decision of the Board under subsection (1) or (2).
…
[Reimbursement Rules]
8 How does the Board decide the reimbursable amount for an employer?
(1) If the Corporation receives a claim from an employer for reimbursement under section 44 of the Act after the commencement of these Rules, the Board must decide the amount the employer is to be reimbursed by calculating that amount in accordance with:
(a) if the employer made a payment under Part 5A of the Act to an eligible employee – Rule 9 of these Rules; or
(b) if the employer made a payment under Part 5A of the Act to an eligible employee’s legal personal representative. – Rule 10 of these Rules.
(2) The Board is not required to deal separately with any part of a claim that relates to pre-2012 entitlements and any part of a claim relating to post-2012 entitlements.
9 How is the reimbursable amount for a payment to an eligible employee calculated?
(1) The reimbursable amount for a payment to an eligible employee is the amount worked out in accordance with the formula:
LSL paid x eligible wages amount per hour
where:
LSL paid means the hours (including any part of an hour) of long service leave entitlement paid for by the employer in respect of an eligible employee, not exceeding the hours of long service leave entitlement (including any part of an hour) recorded by the Corporation with respect to that employee, immediately prior to the date of payment by the employer and not including any hours for which a reimbursement has already been made;
eligible wages amount per hour means the amount per hour of the employee’s eligible wages:
(a) if the employee is employed by the employer at the time the payment is made – immediately before he or she was paid for, or commenced to take, the long service leave, or
(b) if the employee is not employed by the employer at the time the payment is made – immediately before he or she left their employment with that employer.
(2) If the amount calculated under subrule (1) is more than the amount actually paid to the eligible employee in respect of the employee’s long service leave entitlement, the reimbursable amount is taken to be the amount paid to the eligible employee.
10 How is the reimbursable amount for a payment to a legal personal representative calculated?
The reimbursable amount for an employer in respect of a payment made by the employer to an eligible employee's legal personal representative under either section 39C or 39CC of the Act is the amount that would have been the reimbursable amount for the employer if the payment had been made to the eligible employee under Rule 9.
(Emphasis in original.)
49 Mr Stephen Smith, Head of National Workplace Relations Policy for the Australian Industry Group, gave evidence regarding the negotiation and drafting history of the Award. In particular, he made reference to the opposition by the Ai Group and various unions to the inclusion in the Award coverage provision of, inter alia, maintenance and repair service contractors. Mr Smith referred to the comments made by the Full Bench with respect to the proposed Black Coal Award, in the Priority Stage Award Modernisation Decision [2008] AIRCFB 1000 at [156]–[157] that the “goal and intent [of the award]…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.” The Full Bench stated that they rejected “submissions that sought to have mechanical and electrical contractors invariably covered by awards other than the modern award for the black coal mining industry”. Paragraphs [156]–[157] were as follows:
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.
(Emphasis added.)
50 Despite the Australian Industrial Relations Commission recognising the need for greater clarity in the definition, no further refinement was made to the clause before the Award was made. What is telling from this extracted reasoning is that the Commission recognised, contrary to the submission of the Ai Group and others, that contractors performing “some work at or about coal mines” will be covered by the Award and did not engage directly, nor in the terms of the coverage clause define, clear boundaries which would exclude maintenance and repair contractors.
51 Mr Smith referred to attempts thereafter, to achieve greater clarity by the inclusion of the revised Note which the Commission made in its decision The Australian Industry Group [2012] FWA 9606, which is extracted as follows:
“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.”
52 However, I would observe that the Full Bench of the Commission did not, despite the urging of Mr Smith’s clients and others, narrow the definition of “black coal mining industry” such as to exclude “mechanical and electrical contractors” and specifically “rejected that submission” (as extracted at [49] above). To the extent that there was a “note” inserted later, it did not provide the “clarity” of the kind that the respondent now urges.
53 Mr Moledo, who has been employed by Hitachi for at least 14.5 years and currently holds the position of Director – Product Support of Hitachi, gave evidence as to the nature of Hitachi’s business and described it in the following terms:
(a) Hitachi’s business comprises the supply of “new and used earthmoving and materials handling equipment, and after-sales maintenance support, to customers in a wide range of industries” including inter alia various mining industries (not only the black coal mining industry). None of Hitachi’s branches sell or support machinery exclusively for one industry nor is any branch or workshop located on a mining lease. However, the revenue contribution differs between regions and branches due to the differing prevalence of various industries.
(b) All employees, save for some back office administrative staff, are employed by Hitachi.
(c) Hitachi’s enterprise is operated through company-owned branches, grouped geographically by regions, not by industries (see below at [242]).
(d) The branches are retail outlets which sell Hitachi machines and provide spare parts. Many branches have workshops attached where repair and maintenance services on those machines are provided.
(e) The “vast majority” of Hitachi’s contracts are for the sale of equipment and the supply of spare parts and only some are for service and maintenance.
(f) Hitachi holds three active “Mining related Maintenance and Repair Contracts (MARCs)” nationally, two related to the Liddell Mine and one related to the Boddington Mine. The MARCs provide that Hitachi bills customers on an agreed rate per the hours each machine is used, which covers servicing and schedule repairs, represented as invoiced contract revenue that is held in a central provision account. When service or repair work is required and performed, the relevant branch closes a work order which is then expensed to the provision account. This expense includes costs for labour, parts and other expenses.
(g) the branch expenses to the provision account, including labour, parts and other costs.
(h) Alongside its branch structure, Hitachi operates a centralised Construction Equipment Sales Division and a Mining Sales Division within its head office. The divisions are responsible for purchasing and pricing machinery, and liaising with manufacturing facilities. Hitachi also operates remanufacturing facilities at Muswellbrook, Perth and Brisbane, where parts and components are refurbished to particular specifications.
54 The respondent also relies on evidence of its revenue in the period of the financial years ending 31 March 2020, 2021 and 2022, and in particular Mr Moledo’s evidence that the sale of labour services to the black coal mining industry was only 2.6% of its total sales revenue during that 3 year period.
55 Under cross-examination, Mr Moledo accepted:
(a) that the predominant customers of the Muswellbrook Branch were in the black coal mining industry;
(b) that the Muswellbrook Branch services two large contracts, amongst others, called MARCs, directed to the Liddell mine;
(c) the vast majority of contracts entered into by the respondent, serviced by the Muswellbrook Branch, were for the provision of equipment and services to the black coal mining industry;
(d) the majority of the revenue generated out of the Muswellbrook Branch was from the black coal mining industry;
(e) labour needed to be available to work to a roster dictated by the client maintenance schedule; and
(f) the Muswellbrook Branch needed to employ and retain labour of a sufficient quantity to enable the Muswellbrook Branch to attend to its obligations under the contract.
56 Mr Gleeson, who has been employed by Hitachi for at least 10 years, currently holds the position of Regional General Manager – Eastern and was previously the Muswellbrook Branch Manager, gave evidence on Hitachi’s business in the Eastern region (which includes the Muswellbrook Branch). He described how Hitachi supplies machinery under both the Hitachi and Bell brands. He then described the Eastern region’s revenue from 1 April 2021 to 31 March 2022 which comprised sale of construction ($41.4 million) and mining machinery ($21.4 million), service revenue ($109.5 million) including $34.4 million from the Muswellbrook Branch’s MARCs.
57 Mr Trench, who has been employed by Hitachi for at least 10 years and currently holds the position of Service Manager of the Muswellbrook Branch, gave evidence in particular about the proportion of Hitachi’s business that comprises the Muswellbrook Branch (which is the only branch Mr Trench has ever worked at). He described the nature of the Muswellbrook Branch in the following way:
(a) The Muswellbrook Branch supplies Hitachi machinery and spare parts to customers in the Hunter Valley and surrounding areas (including parts of western New South Wales), and provides maintenance on that machinery.
(b) Most of the Muswellbrook Branch’s customers are in the black coal mining industry, however it also supplies and services equipment to customers in the construction, rail, agricultural, plant hire, power and other industries. Insofar as Hitachi’s machinery is used on black coal mine sites, it is only used on open cut mines. Hitachi employees do not go underground in coal mines.
(c) There is a remanufacturing facility located on the same premises as the Muswellbrook Branch but it operates separately.
58 Both Mr Gleeson and Mr Trench gave evidence specifically regarding the relevant employees’ circumstances and responded to their evidence. This evidence is dealt with further below.
59 Mr Trent Sebbens, solicitor for the applicant, gave uncontested affidavit evidence regarding:
(a) online search results regarding how the respondent described its business, and particularly the mining portion of its business;
(b) the applicant’s issuing of a statutory Notice to Produce under s 52A of the Administration Act to the respondent and annexing documents produced by the respondent including an organisational chart and four MARCs; and
(c) the evidence of Mr Smith and in response, identified those Federal awards that had applied before the making of the Award as part of the award modernisation process.
60 Notably, his evidence extracted portions of the earlier coal mining awards which identified employees who were direct respondents in those awards (as they were then required to be) including contractors and service providers.
61 The remainder of the applicant’s evidence comprised the evidence of each of the relevant employees, which is summarised as follows.
62 Mr Garland is a Plant Mechanic who was employed by the respondent for over 10 years from May 2010 to December 2020. During his employment, his terms and conditions were covered by an employment contract (dated 16 April 2010) and a number of enterprise agreements.
63 Mr Garland identified “five distinct periods” in which he worked for the respondent in the following terms:
(a) for approximately six weeks after commencing employment, until about mid-June 2010, I performed work as a Plant Mechanic at Hitachi’s Muswellbrook branch workshop, located at 27-35 Thomas Mitchell Drive, Muswellbrook, New South Wales (Branch Workshop) (Period One);
(b) from about mid-June 2010 until about November 2013, I worked as a Plant Mechanic as part of a “field services” roster at a number of black coal mines in and around the Hunter Valley region of New South Wales (Period Two), see for example, the role recorded in the copy of a Hitachi organisational chart as at 1 July 2010 at Tab 6 of Exhibit BPG-1;
(c) from about November 2013 until about February 2014, I worked as a Plant Mechanic at the Liddell mine (Period Three);
(d) from about February 2014 until about November 2017, I primarily worked as a shift supervisor at the Liddell mine (Period Four); and
(e) from late around 2018 or early 2018 until my employment with Hitachi ended in about December 2020, I returned to working as a Plant Mechanic as part of a “field services” roster at a number of black coal mines in and around the Hunter Valley region of New South Wales (Period Five).
(Emphasis in original.)
64 During Period Two, Mr Garland repaired and maintained mining equipment at a range of black coal mine sites in and around the Hunter Valley region. All work was performed at these sites, save for approximately 1 to 2 shifts per month where no work was required to be performed at a mine site. Mr Garland would only attend the Muswellbrook Branch workshop, to drop off paper work, for safety training purposes and to occasionally collect parts for the machines requiring repair on the mine sites. Mr Garland worked the same shifts as the employees on the relevant mine site. During Period Three, Mr Garland was assigned by the respondent to work at the Liddell black coal mine site and performed the same kind of work as he had performed in Period Two. During Period Four, Mr Garland undertook work as a Shift Coordinator at Liddell, initially allocated to supervise shutdowns and later for the breakdown crew. Whilst his role primarily involved supervision, he did also, on occasion, undertake repair work himself. The work was undertaken on MARC machinery and usually performed at the main workshop on the Liddell mine site. At other times the work was performed “in the field at the mine site or in the mine pit itself”. During Period Five, Mr Garland returned to a “field service role” as a Plant Mechanic, where the work was substantially the same as to that during Period Two.
65 To the extent that his evidence was the subject of challenge (by the respondent through affidavit evidence and where Mr Garland was not required for cross-examination), it was: (a) regarding whether, during Period Two, he was employed as a “Shift Supervisor” or undertook “Shift Coordinator” work and remained employed as a mechanical fitter throughout his employment (nothing turns on this dispute); (b) whilst during Period Two, Mr Garland “worked predominantly at black coal mines”, according to Mr Trench, his job was to perform services for any customers in any industries and at any location to which Hitachi directed him”. According to Mr Trench: “The very same mechanical fitter employed under essentially the same contract and position description to perform exactly the same role in a Field Services team in Western Australia, would probably never set foot on a black coal mine site”; (c) a dispute about whether Mr Garland reported to mine site supervisors in addition to Hitachi supervisors (about which it does not appear ultimately that anything arises); and (d) a dispute as to whether Mr Garland performed “supplementary labour” on mine sites (again nothing turns on it).
66 Mr Gee was employed as a “Field Services Roster Fitter” with the respondent from January 2011 to November 2019. He described his work in the following way (which was unchallenged):
During the time that I worked for Hitachi, I was one of a number of employees of Hitachi who primarily worked on black coal mine sites in and around the Hunter Valley region of New South Wales, to perform or supervise maintenance and repair work on equipment such as excavators, trucks and bulldozers at those mines (being equipment which comprised both Hitachi equipment supplied to those mines, as well as other non-Hitachi equipment at those mines). These persons who worked primarily on black coal mine sites included both Hitachi employees who were based solely at a specific black coal mine, as well as Hitachi employees who formed part of “field service” rosters, whereby they travelled to different black coal mine sites for each roster at the direction of Hitachi management.
67 From about 18 January 2011, Mr Gee performed his duties as a “mechanic” at the Liddell mine site save for short periods at the Branch Workshop and a period of seven months when he worked at the Glendell mine site. At the Liddell mine site, Mr Gee worked in the main maintenance workshop alongside Liddell maintenance crew employees and also performed breakdown duties in the pit. There were three offices for Hitachi employees annexed to the main workshop for the Hitachi Site Manager, Hitachi Team Leader and the Supervisor.
68 There was limited dispute with respect to Mr Gee’s evidence, save by Mr Trench’s affidavit evidence, who disputed amongst other things: (a) whether Mr Gee was “supervised” by the Liddell Maintenance Supervisor (rather than the respondent’s supervisors); (b) the extent to which he was required to repair machinery and equipment other than that which was supplied by the respondent; (c) the extent to which he used Liddell’s tools rather than those of the respondent; (d) the extent to which the client determined what work to be performed under the MARC.
69 Mr Gee was not required for cross-examination.
70 Mr Stair has been employed by the respondent since March 2014 as a High Voltage Electrician. For the first month of his employment, he worked at the Branch Workshop, but thereafter only worked there on a small number of occasions each year, usually to attend safety-related presentations by the respondent. From April 2014, Mr Stair worked at the Liddell mine site performing high-voltage electrician work and his role was to perform the high voltage electrician work on the MARC Machinery at the Liddell site. From September 2019 onwards he also worked as a Team Leader supervising the work of crew members, assessing parts required to undertake work, ordering parts, and assessing whether particular work needed to be carried out on machinery. He described simply the three types of work performed by the respondent’s employees at the Liddell site being “servicing work” according to the servicing schedule, “breakdown work” performed on an as-needed basis and often carried out in the mining pit and “shutdown work”: After each 20,000 hours of use, the Hitachi dump trucks are placed in a “shut down” period during which components are replaced.
71 There was limited dispute with respect to his evidence from the respondent and he was not required for cross-examination.
72 From April 2010 until December 2020, Mr Cooper was employed by the respondent as a mechanical fitter. For approximately three weeks when Mr Cooper was first engaged by the respondent, he attended the Branch workshop. He thereafter predominantly worked as a mechanical fitter under the “field services” roster at a number of black coal mines in the Hunter Valley region, most frequently at the Liddell and Glendell mine sites.
73 He described the nature of his work in the following way:
The nature of the work I was required to perform varied from shift to shift, but broadly I was assigned to perform work of three types at black coal mine sites, being:
(a) assembly of new Hitachi machinery at the mine site to the original equipment manufacturer (OEM) specification (assembly work). I estimate that this comprised approximately 10% of my work;
(b) “rebuilds” of Hitachi machinery, and particularly dump trucks and excavators (rebuild work) that were located on mine sites. I estimate that this comprised approximately 40% of my work; and
(c) general maintenance, servicing and repair work as supplementary or role-replacement labour for the maintenance work teams at different mine sites. I estimate that this comprised approximately 50% of my work.
(Emphasis in original.)
74 There was limited dispute with respect to his evidence from the respondent and he also was not required for cross-examination.
75 A review of each of the relevant employees’ contracts reveals that they are largely identical, with the exception of Mr Stair’s contract which differs from the others in ways which are identified below.
76 The relevant employees’ contracts comprise the following: Their “Position” title is identified, with respect to each employee:
(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”.
77 Whilst the Position title is identified (and different in each contract as identified in the preceding paragraph), no specific description is given for any of the Positions, save for the Position Description. Each contract provided as follows:
Your position is [XX]. You will be employed on a full time basis.
Your employment is subject to provision of proof of eligibility to work in Australia. You are required to provide proof of eligibility on commencement of employment by way of visa, passport, or birth or citizenship certificate.
Your current duties and responsibilities are contained in the Position Description in Schedule A, attached to this contract. You are also required to carry out other duties reasonably required by the Company that you are skilled and capable of performing. You may also be required to perform duties from time to time for the Company’s Related Entities.
The Company may alter your position, Position Description and responsibility in accordance with the needs of the business. You agree that the terms of this contract continue to apply unless varied in writing in accordance with this contract.
(Emphasis in original.)
78 Each of the employees was required to report to the Field Service Supervisor (save for Mr Stair who was required to report to the Project Manager).
79 The contracts of Messrs Gee, Garland and Cooper identified the “place of work” to be “27-29 Thomas Mitchell Dr, Muswellbrook NSW 2333”, described by each employee as the “Branch workshop” not the black coal mine sites where they in fact worked. Mr Stair’s contract identifies a different address (“27-35 Thomas Mitchell Drive, Muswellbrook NSW 2333”) as his “place of work”. Further each contract provides that the employees could be required “to work at other locations in accordance with the needs of the business” and employees “may be required to undertake intrastate, interstate or overseas travel” in the course of their employment.
80 Mr Stair’s contract also differs from the contracts of the other relevant employees in the following ways:
(a) Mr Stair’s probationary period is for 6 months, whilst the other relevant employees’ period of probation was 3 months. Further, Mr Stair’s contract omits the phrase (included in the other contracts) “[n]ormal qualifying period as legislated still applies”.
(b) Mr Stair’s hourly wage rate was different from that of the other relevant employees. Mr Stair’s wage is paid “with two weeks in arrears”, whilst the other relevant employees’ wages are paid “with one week current wage and one week in advance”.
(c) The “hours” clause in Mr Stair’s contract merely requires him to “be flexible with [his] hours of work patterns to suit either Monday-Friday or different roster arrangements that are in place to meet our business requirements”. However, the other relevant employees are required to work a roster “averaging 42 hours per week over 52 weeks”.
(d) Mr Stair’s “annual leave” clause explicitly excludes Leave Policy HR029 from his contract. This is not the case with the other relevant employees, with their contracts referring to Leave Policy HR029 but not excluding it. Further, Mr Stair’s “annual leave” clause contains a stipulation that requires him to take annual leave in the event that Hitachi has a shut down period, such as over Christmas, whilst the other relevant employees’ contracts do not contain this clause.
81 The generic “Position Description” is annexed in Schedule A to each contract in identical format. An example of Schedule A from Mr Garland’s contract is extracted as follows:
82 The following aspects of the Position Description are individualised in each contract: the employee’s name and position number, their position title, their department and the person to whom they report.
83 The Position Description then describes generically 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” and thereafter provides generic “Responsibilities” and “Key Performance Indicator[s]”.
84 Under the headings “Experience”, “Qualifications” and Customer”, the scant detail was as follows:
Common experience of the employees
85 As can be seen from the foregoing, each of the employees held different positions and worked at different locations on occasion. For example, Mr Stair was the only employee who worked at the Liddell Mine site for the entirety of his employment with the respondent. Messrs Garland, Gee and Cooper were engaged at a number of black coal mines. Mr Gee worked predominantly at the Liddell Mine apart from a short period at the Glendell Mine and in the Branch Workshop. Mr Cooper was engaged as a “mechanical fitter” on a “field services” roster, most frequently at the Liddell and Glendell mine sites.
86 The parties do not descend into the detail of the differing circumstances of each of the employees at each of the mine sites in their submissions so as to then suggest that any of them should be treated differently. They are treated as a homogenous group by both parties.
87 Some of the relevant employees’ evidence is quite detailed and specific as to a particular mine site, for example Mr Stair’s evidence with respect to the Liddell Mine site. However, this evidence has no relevance when determining whether the other relevant employees are “eligible employees” at other mine sites.
88 The evidence revealed the following common experience of the employees:
(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 the respondent 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.
89 The relevant employees were involved in three main forms of work performed at the mine sites being servicing, breakdown and shutdown work as identified at [70] and expanded upon below.
90 Servicing work required an outgoing crew to bring the relevant Hitachi machine into the main workshop at 3:00am and wash the machine in preparation for servicing, then it was for the incoming crew, who commenced the day shift at 6:30am, to carry out the servicing of the machine, which would ordinarily be completed within that day. Hitachi services the equipment based on a servicing schedule contained in documents described at the mine site as Hitachi technical or workshop manuals, which prescribe when machinery requires servicing based on the hours of use of the equipment. As part of the servicing, there are various checks and routine servicing tasks, which include electrical work, cleaning electrical cabinets and software upgrades.
91 Employees of the mine operator Liddell Coal Operations Pty Ltd (LCO) provided work orders to Hitachi planners for defects and upgrades that needed to be completed during the planned service. The work orders were done by way of a service sheet. If specific parts required servicing, or damage needed to be repaired that was not covered by the MARCs, Hitachi completed a specific work order for those relevant repairs/services and charged Glencore in addition to the usual MARC fees.
92 Broadly speaking, servicing work involved checking all functions of the machine, the movement in the machine’s pins as well as the machine’s steering, struts and suspension. The machine’s oil, oil filters, and hydraulic steering filters were changed. Replacement oil was provided by LCO, and grease screens were also cleaned. The relevant machine was also inspected to determine whether there were any cracks or oil leaks, which, if identified, were repaired.
93 Breakdown work comprises, as the nomenclature indicates, maintenance work where Hitachi equipment has broken down. Hitachi crew members are assigned to assist with breakdowns and usually work a 24/7 roster. Breakdown work is performed on an as-needed basis and is often carried out in the mining pit if it is not possible to move the relevant machinery. LCO maintains a two-way radio which is utilised to notify the service crews of breakdowns.
94 A breakdown crew consisted of a fitter and electrician, who travelled in a utility vehicle to the broken machine. The repairs were supervised by the LCO Mine Supervisor, and LCO employees often assisted with repair work.
95 Shutdown work occurs after each 20,000 hours of use of particular equipment. The Hitachi dump trucks are placed into a shutdown period during which components are replaced. The dump trucks are transported to the Hitachi workshop at Muswellbrook for this to occur and this process could take two to three weeks to complete. Mr Stair described mini-shutdowns, where major components of machinery were replaced, often during the night shift. Mr Gee gave evidence that shutdown work on dump trucks could take one month for each truck.
96 Mr Gee gave evidence that shutdown work usually occurred on site, however he recalled an occasion when dump trucks were returned to the Hitachi workshop.
97 Mr Garland gave evidence of what shutdown work entailed with respect to a “haul truck”. Shutdown work for a “haul truck” required removing the engine, pumps, final drives, axle drives and front hubs. These items were sent to the Branch workshop to be refurbished. The truck was then stripped down to its chassis, reassembled, and delivered. Any defects identified during this work were fixed. This work was predominantly performed by Hitachi employees, however sometimes fitters and mechanics engaged by the relevant mine site assisted with this work.
98 The uncontested evidence was that the relevant Hitachi machinery maintained by the relevant employees on the mine sites was ordinarily used to remove overburden and not black coal. 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. In this case, the uncontested evidence was that the overburden was moved (using Hitachi machinery) to a dump located elsewhere on the mine site, which was usually an area that has already been excavated and mined and was being backfilled.
99 The respondent’s business included a “Field Service” team attached to each branch in each region of its business. Mr Gleeson and Mr Trench gave evidence as to the nature of the Field Service team, with Mr Trench’s evidence more specific to the team at the Muswellbrook Branch.
100 Mr Gleeson describes the Field Service team as responsible for servicing Hitachi equipment for customers “in the field” at customer sites.
101 Mr Gleeson identified the range of disciplines in the Field Service team who support all equipment types. However, the type of equipment differed based on the branch location as some machines are more commonly used in particular branch locations. Hitachi service technicians carry out assembly and commissioning work at the workshop or in the field (depending on the size and type of the machine) and these technicians are often involved in warranty work and ongoing maintenance.
102 Mr Gleeson described the work carried out by the Field Service Team in the Eastern region as comprising:
(a) Hitachi machinery assembly in Hitachi’s assembly yard at Muswellbrook;
(b) Hitachi machinery assembly in branch workshops (mostly for smaller machines);
(c) Hitachi machinery assembly on customer sites (for larger machines);
(d) commissioning and warranty work for Hitachi machinery on customer sites;
(e) maintenance and repair work on Hitachi machinery on customer sites;
(f) repairing Hitachi components and parts at branch workshops; and
(g) planned shutdown work involving replacing components at certain times.
103 Mr Trench further described the Muswellbrook Field Service team as follows:
13. The Muswellbrook Branch’s service work is predominantly performed by its Field Service team. All Hitachi operational branches across Australia have a Field Service team that provides after-sales maintenance and repair services for Hitachi equipment that the branch has sold. Those services are variously performed at client sites or at branch workshops (as I describe below).
14. The size of the field service team varies across branches. The Muswellbrook Field Service team is one of the largest teams. The Field Service team at Muswellbrook consists approximately of:
(a) 51 mechanical tradespersons;
(b) 13 high voltage electricians;
(c) 2 auto electricians;
(d) 2 trades assistants (not shown in the organisational chart as they are recent appointments);
(e) 17 apprentices; and
(f) 1 Toolstore allocator.
(g) 7 Field Service Supervisors
(h) 4 Roster Supervisors
104 Whether an employee is described as being a field service team member or not is not what is material. Labels are of limited utility. What is important is understanding in fact the duties of each of the relevant employees. The respondent urges the Court to embrace the flexibility within the contracts, by virtue of the generic descriptions within the contracts, to place employees anywhere at any time.
105 Mr Gleeson provided four examples of other employees from the Muswellbrook Branch based on their timesheets which he reviewed (from 2020 to 2021):
(a) Mr J, mechanical fitter, worked 14 shifts in May 2020 comprising 10 shifts at black coal mining sites (seven planned shutdowns, two onsite assembly, and one changing component), three shifts repairing Bell construction machines at customer sites and one shift of training and administration at the Muswellbrook Branch.
(b) Mr M, field services supervisor and mechanical tradesperson, worked 17 shifts in October 2021 comprising five shifts undertaking shutdown supervision for Hitachi machinery at a black coal mining site and 12 shifts at the Muswellbrook Branch/workshop (10 assembly shifts and two administration shifts).
(c) Mr T, electrical fitter, worked 14 shifts in November 2020 comprising one planned shutdown shift at a black coal mining site, eight shifts involving repairs at a gold mining site, one shift repairing construction equipment at a customer site and the remainder at the Muswellbrook Branch (one repair shift and three administration shifts).
(d) Mr V, mechanical fitter, worked 15 shifts in April 2021 comprising six and a half planned shutdowns shifts at black coal mining sites, five shifts repairing construction machinery at customer sites; two and a half shifts attending construction training and induction courses at the Muswellbrook Branch and one shift working at the Muswellbrook Branch office/workshop.
106 With respect to the skillset required, Mr Gleeson described the following:
24. The skillset required of a Field Service tradesperson is very similar between regions and branches. Based on my own experience working with Hitachi, I know that a Hitachi Field Service Tradesperson who wished to re-locate to another State or area could be readily redeployed to service a different customer base (including across different industries). Some training may be required if the employee was required to work on different classes of Hitachi machines to which they may not have previously been exposed, but a very large proportion of their skills would be transferable.
25. Put simply, the Field Service Teams embedded within Hitachi branches across Australia employ people with substantially identical trade qualifications, on substantially identical contracts and position descriptions. Hitachi may deploy certain Field Service employees to a greater proportion of, say, black coal mining, construction, or iron ore mining sites as a matter of administrative convenience (e.g. because the employee has undertaken client induction processes) or due to skill requirements or simple geographic locality. However, it remains part of each Field Service employee's job to perform duties across all Hitachi machinery in all client industries and at different client sites as required.
(Emphasis in original.)
107 However, Mr Gleeson did accept under cross-examination that whilst from time to time the 66 or so current field service employees might be directed to customer sites other than black coal mines, the vast majority of the time, they are directed to work at black coal mines.
108 Mr Trench further described how Hitachi does not have designated employees who only work on particular machines or models, however some employees with a higher skill set with respect to a particular machine or model may work on those machines more often. This machinery, Mr Trench deposed, is used by clients across a range of industries and is not specific to black coal mines. Accordingly, Mr Trench stated:
Hitachi does not organise the Field Service team to specialise in particular industries. That is members of the Field Service team perform services for clients in different industries as required on any given day. Their contracts of employment and relevant positions descriptions reflect this.
109 Mr Trench described the different locations that members of the field services team work; some working at the Muswellbrook Branch, some at various customer premises, and a “small number” who for 95% of their time work at a particular customer site (such as the Liddell mine) pursuant to a MARC.
110 However, Mr Gleeson’s evidence was not accepted by the relevant employees. Mr Garland gave evidence in reply that the description of the employees’ rosters that Mr Gleeson used as examples provided an inaccurate picture of “most field service team members’ roster cycles”. Mr Cooper also gave evidence in reply that he was only required to perform work for customers in the black coal mining industry at black coal mine sites, apart from his initial induction and “very rare occasions” where there was no work available at black coal mine sites. Further, with respect to the employees that Mr Gleeson used as examples in his evidence, Mr Cooper did not believe “that the one-month snapshot described…accurately reflects the general nature of their work”. Mr Gee also gave evidence in reply with respect to the employees listed by Mr Gleeson, and gave evidence that during Mr Gee’s time at Hitachi he did not recall those employees performing work for the construction industry. Mr Gee recalled each of the employees as generally working in the black coal mining industry.
111 Mr Garland worked as a plant mechanic as part of a “field services” roster at a number of black coal mines during two periods (as referred to at [63] above). During the first period, he described the work in the following way:
The nature of the work I performed at the black coal mine sites listed in paragraph 18 [of Mr Garland’s affidavit] above varied from shift to shift, but I primarily performed maintenance and repair work on the mining equipment at the sites. In this work, I was either assisting the mine’s permanent maintenance crew workforce where they required supplementary labour, or providing my Plant Mechanic expertise in relation to a specific piece of equipment. I commenced each shift and attended the mine’s pre-start meeting, then was assigned a job to perform on shift.
…
If parts were required for the repair and maintenance of equipment at a black coal mine site, they were usually already at the mine site or were delivered to the relevant mine site by others. Occasionally though, I personally collected required parts from the Branch Workshop, prior to attending the mine site to perform the work.
112 Mr Garland described his work at each mine site in the following way:
When I worked at each black coal mine site:
(a) I worked the same shift as the employees of the relevant mine site. For example, Bulga mine shifts commenced at 6:00 am or pm, whereas shifts at Muswellbrook Coal commenced at 5:00 am or pm, and those were the shift hours which I worked;
(b) at the commencement of each shift at the relevant mine site, I attended the mine’s pre-start meeting;
(c) for each shift, I accessed the mine site’s electronic record system to enter in details of the work I had performed on that shift, and to record my arrival and departure times at the site for that shift; and
(d) I was required to follow, and did follow, the rules and procedures in place at the relevant mine site when on site (for example, the fatigue and drug and alcohol policies of the relevant mine site).
113 I find that the reality with respect to all of the relevant employees is that they did not, in the way that Mr Gleeson has described it, go out routinely to multiple client sites on different days in different locations and perform work in different industries. They were allocated to perform their work routinely at one or various black coal mine sites.
The mine sites’ workshops and use of mine site tools, equipment and consumables
114 There was no dispute between the parties that the relevant employees worked principally at the main workshop located within the relevant black coal mining site where they were located.
115 Mr Stair, consistent with the description of other employees, described the Liddell maintenance workshop where he worked as comprising five vehicle bays where each bay had access to oil and fuel pumping stations. Hitachi employees were assigned one or two bays to service and repair the MARC machinery. Within that workshop, equipment was supplied by LCO including forklifts, overhead cranes, ladders and stands. LCO also provided jacks and lifting rigs as required. This same equipment was used by LCO employees based at the workshop who were performing maintenance repair work in the other bays.
116 In addition, there was a Liddell tool store within the maintenance workshop used by both Hitachi and LCO maintenance employees. The Liddell tool store contained a large number of tools, whilst Hitachi employees generally had tools that were used specifically for the servicing or repairing of the MARC machinery. There was also a separate Hitachi tool container adjacent to the workshop which contained tools supplied and owned by Hitachi, which Hitachi employees could access as needed. The main workshop also had a parts store, which contained materials such as rags and other consumables including lubricants and electrical tape, which Hitachi employees had access to, and which was supplied by LCO. According to Mr Gee, if these consumables ran out, the relevant employees could request that LCO order more. The main workshop also contained: (a) a separate parts storage within a shipping container, maintained by Hitachi, which was outside the main workshop alongside the Hitachi tool container; and (b) toilet facilities in a crib room used by both LCO and Hitachi employees.
117 Hitachi employees were also able to freely access consumables that LCO supplied in the workshop such as oil, air and water used for servicing and maintenance. Mr Gleeson did not challenge this evidence of the employees but did maintain that Hitachi was responsible for providing consumables related to the fitters’ execution of their work (for example: gloves, safety glasses and other personal protective equipment).
118 Mr Gleeson, however, did disagree with Mr Garland’s evidence that LCO supplied tools to complete maintenance tasks at Liddell. According to Mr Gleeson, Glencore is required to provide a workshop space to complete maintenance tasks required under the MARC, and the MARC specifies the equipment and tooling that Hitachi is to provide. Mr Gleeson rejected Mr Garland’s evidence that LCO purchased specialised tools to perform a service or repair if those tools were not already on site. Mr Gleeson said that Hitachi is responsible for purchasing any specialised or machine-specific tools required under the MARCs, and as such these tools are paid for and owned by Hitachi, not Glencore. In Mr Garland’s reply evidence, Mr Garland agreed that job-specific and specialised tools were purchased and supplied by Hitachi for use by Hitachi personnel. The exception to this, however, was when a specialised tool was broken or being used on another job, in which case the tools were borrowed from the Liddell tool store.
119 Mr Gleeson states that only the Hitachi employees consistently deployed to the Liddell mine site are provided access by Glencore to facilities such as wash rooms, change rooms and lockers. In 2014, Hitachi also paid for and supplied additional lockers for its employees after increasing the labour requirement on the Liddell mine site.
120 Neither party urged me to make any specific findings to the extent of disagreement between the applicant’s and respondent’s evidence. However, I will accept that here there was disagreement with respect to Mr Garland’s evidence (noting, however, that Mr Garland was not required for cross-examination). I do not consider the disagreement ultimately to be material, but will accept Mr Gleeson’s evidence to the extent that he disputes Mr Garland’s evidence in the manner described in the two preceding paragraphs.
121 Mr Gleeson gave evidence that there are set rosters across the respondent’s enterprise. He stated that the rosters differ amongst team members. Mr Gleeson stated that some branches have a 24/7 roster, some have a day shift Monday to Friday roster and some provide afterhours field support by way of call out. With respect to the Muswellbrook Branch, Mr Trench described the following:
Service mechanical and electrical personnel have always reported to the relevant Roster Supervisor, who then reports to the Senior Service Supervisor. They are grouped in crews of A, B, C & D, working both 12 hours / 7 day and 24 hours / 7 day arrangements. This actual structure is not depicted in Hitachi’s organisational charts as the makeup of the crews change frequently. The field service personnel are grouped by trade (mechanical or electrical) in the organisational charts.
122 Messrs Garland, Gee and Cooper worked predominantly according to a “field services roster” which was set by the respondent, which Mr Garland described in the following way:
For some roster swings, I was based at a single black coal mine for the entirety of the swing. For other roster swings, I performed shifts at different mine sites during the course of the swing. I was directed by Hitachi’s roster supervisors as to the location at which I was to perform a particular shift or swing: These directions were provided to me either by a telephone call or a text message, usually on the day prior to the start of each swing or shift.
123 Mr Garland stated that at each black coal mine site he:
…worked the same shift as the employees of the relevant mine site. For example, Bulga mine shifts commenced at 6:00 am or pm, whereas shifts at Muswellbrook Coal commenced at 5:00 am or pm, and those were the shift hours which I worked…
124 Mr Cooper gave evidence that he was employed on a field services roster in which he predominantly attended mine sites where he performed work as a mechanical fitter. Mr Cooper worked on a 12-hour day permanent day shift roster. He stated that he “always” worked on the day shift whilst he was employed by Hitachi, except for isolated instances where he worked overtime or swapped a shift to work a night shift. According to Mr Cooper, up until the final two to three years of his employment with Hitachi, his shift supervisor would telephone him the week prior to his weekly roster commencing and tell him which mine sites he would be working at. In the final two to three years of his employment with Hitachi, Mr Cooper received that information via text message. Mr Gleeson does not appear to dispute Mr Cooper’s evidence in relation to rosters.
125 Mr Stair gave evidence that he worked as part of designated “crews” at Liddell which Mr Gleeson stated were according to Hitachi rosters engineered from the life cycle of machinery.
126 The evidence revealed that the employees worked various rosters depending on the nature of the work they were performing, those rosters were created by Hitachi and did correspond with the crews of the mine sites and accordingly employees worked similar rostering arrangements to those of other employees on the mine site. It was Hitachi’s evidence that this rostering arrangement was implemented deliberately in order for them to be able to work collaboratively with their customer at the site. There were particular scheduled shutdown rosters which, whilst there was some difference of perception by the employees as to who was in fact setting the rosters, a fair reading of the evidence of both parties reveals that ultimately it was a matter for Hitachi to roster employees, but where it did so (one assumes in consultation with or at the behest of or to ensure compliance with its obligations and its service requirements under the MARCs), according to similar scheduling patterns to the LCO employees.
127 This is so given Mr Gleeson stated: “[w]hen we roster our employees, we often try to align the start times for our fitters with those of the customer on the relevant site”. However, their rosters were not the same as their customers’ rosters. As stated by Mr Gleeson: “[w]here the customer’s start and finish times were within the scope of what was acceptable under Hitachi’s rostering and the Hitachi Enterprise Agreement, Hitachi would often align the start time and/or the finish time to match the site.”
128 The evidence of the relevant employees and Mr Trench and Mr Gleeson revealed the following about the employees’ supervision.
129 Mr Cooper gave evidence that he reported to a Hitachi shift supervisor (but that they did not supervise his work) and that he also reported to the “mine site maintenance supervisor” in respect of his work. Mr Gleeson noted in response that in most cases Hitachi supervisors do not accompany the tradespeople to the job site where the work is being carried out but were nevertheless responsible for the work performed by the fitters.
130 Similarly, Mr Garland gave evidence that as a Plant Mechanic he reported to his nominated Hitachi supervisors but when he was on site he reported to the maintenance supervisor of the relevant mine in respect of his work on that site. Mr Garland also gave evidence that he was directed by Hitachi’s roster supervisors as to the location at which he was to perform a particular shift.
131 Once Mr Garland took on the role of Shift Coordinator, his role primarily involved the supervision of the crew employed by Hitachi and their work. With respect to the maintenance and repair work on the MARC machinery which Mr Garland supervised, this was usually performed at the main workshop located at the Liddell mine.
132 The evidence revealed that employees were ultimately supervised by the Hitachi field services manager or other Hitachi supervisors. However, the relevant employees did have to comply with directions from the LCO supervisor and take instructions or seek clarification for particular tasks from the customer on site.
133 Mr Gee gave evidence that he attended the shift pre-start meetings every morning where the LCO maintenance supervisor advised what jobs needed to be completed during the shift.
134 In response, Mr Gleeson stated that this evidence was “capable of being misleading”. Mr Gleeson went on to state that while Hitachi was responsible for the management of maintenance tasks, the Liddell supervisor does not prescribe what work is to be done on the machines and in what sequence. However, in Mr Gee’s evidence in reply, he states that during his time on-site at Liddell, he took direction from the Liddell mine site supervisors, and while significant issues were reported to the Hitachi MARC manager, the Liddell mine site supervisors gave direction as to the work performed on site. There was no challenge to this evidence.
135 Mr Gleeson deposed that Hitachi was responsible for the management of maintenance tasks and related decision-making with regard to the MARC machines. Further, the interaction with Liddell supervisors was limited to feedback and input into what maintenance issues required attention (e.g. breakdown or machine issues and authorisations and requests for site support), but not prescribing the work to be done on the machines.
136 Mr Gee states that LCO/Glencore made the final decisions regarding work performed on the MARC machinery. This involved an LCO maintenance supervisor signing off a “Cat III” work authorisation form as well as authorisation from the LCO Open Cut Examiner to perform the work. Mr Gleeson disputed this aspect of Mr Gee’s evidence, stating that this was capable of being misleading: The MARCs describe in detail who is responsible for maintenance decisions and Hitachi supervisors and managers have the final say on how maintenance work is performed.
137 Mr Gee stated in his evidence that he was supervised by the LCO maintenance supervisor who directed his duties and what work he could and could not perform. He further states there was a Hitachi “leading hand” (i.e. team leader) who allocated work to the Hitachi crew members. He notes that on a daily basis he usually dealt with the Hitachi leading hand, who then reported to the “Supervisor”.
138 Mr Stair and Mr Cooper state that the Hitachi roster (or shift) supervisor was responsible for allocating labour to each site, instructing them which mine site they would work at and dealt with issues such as sick leave, annual leave and safety incidents or injuries (after they had reported any incident or injury to the mine site supervisor). Mr Stair and Mr Cooper further state that while they reported to the Hitachi roster supervisor, as that supervisor was located at the Muswellbrook workshop (and thus did not directly supervise the work at the mine site), they did not report to them for on-site related matters nor report the actual mechanical work done on a day-to-day basis.
139 Further, where Mr Cooper had completed a task, he says he was typically allocated other jobs onsite by the mine site supervisor.
140 Mr Stair deposes that while he received instructions and direction from and liaised with Glencore/Liddell mine supervisors, where the mine site supervisor’s view as to the priority of work differed to Hitachi’s view, he would follow the mine site supervisor’s direction.
141 Mr Garland and Mr Gee gave evidence that Hitachi employees would interact with an LCO supervisor when they needed to access a tool from the main Liddell tool store.
142 Mr Cooper gave evidence that he would also approach the mine supervisor when parts were needed and they would confirm what parts should be ordered from Hitachi. By contrast, it was Mr Stair’s evidence that a Hitachi supervisor would be required to order the parts from the Muswellbrook workshop.
143 When conducting “breakdown work” requiring accessing machinery in the mining pit, Mr Stair deposes that he and his crew would liaise with a LCO Open Cut Examiner who might attend the breakdown work and supervise them.
144 Mr Gee deposes that when performing breakdown work repairs, the LCO mine supervisor supervised work by the Hitachi employees and that LCO/Glencore employees often assisted in the work.
145 Mr Cooper gave evidence that when he was performing role-replacement or “supplementary labour”, he reported to the mine’s maintenance supervisor and worked “side-by-side” with mine employees. The mine maintenance supervisor allocated him to a crew in the maintenance department and then the “Step-Up Supervisor” or “Leading Hand” of that crew assigned him specific tasks. Depending on his work, he might attend the mine’s pre-start meeting and then a separate pre-start meeting run by Hitachi build supervisors.
146 Mr Gee deposed that when working at Liddell he was required to immediately report any safety incidents to an LCO supervisor and LCO investigated any safety incidents. Mr Trench states that any such incidents involving Hitachi employees were also required to be reported to Hitachi who carried out investigations regardless of LCO’s choice to investigate.
147 Mr Gee describes his interaction with the Hitachi shift supervisors as being limited to phone calls to request delivery of parts from the Muswellbrook workshop to Liddell. He says he reported to the MARC Manager at Liddell, which Mr Gleeson deposed oversaw the MARCs and Hitachi’s responsibilities under the MARCs. Mr Gee also states that Mr Trench was only the site manager for three weeks out of the nine years that Mr Gee worked at Liddell mine.
148 Mr Gleeson gave evidence that with respect to supervision, regardless of whether Hitachi employees are working at a customer site, they only report to Hitachi supervisors and managers (such as the Hitachi Site Manager at the Liddell mine site and the Roster Supervisor). The only interaction of Hitachi employees with a customer’s supervisor is to give the employees instructions about particular tasks.
149 A fair reading of the relevant employees’ evidence together with that of the respondent revealed that there was a degree of collaborative supervision from both the Hitachi supervisor and LCO. Ultimately, Hitachi employees were answerable to Hitachi.
150 As to be expected, the nature and degree of supervision will depend on many variables which include individual management styles, employee or contractor ability, the nature of the task being undertaken and the understanding of those involved as to their contractual, policy and statutory roles and obligations. Accordingly, it is not possible to make any findings with precision and uniformly with respect to each of the relevant employees. Neither party urged me to, and again they proceeded on the basis that the relevant employees would be treated as an homogenous group.
151 However, the above evidence reveals, including the disagreement between the parties, which I was not urged upon to resolve, that the relevant employees were routinely allocated duties and required to liaise with LCO supervisors when performing their work. This arose because the requirements of the MARCs required this level of cooperation: The relevant employees were on site performing daily functions on machinery being utilised by the mine site.
152 The overlapping supervision reveals a degree of integration between the Hitachi and mine site work forces.
153 Each of Messrs Stair, Garland, Cooper and Gee gave evidence that they were required to attend induction training at the mine sites, and other courses.
154 Mr Stair said that in order to continue working on the Liddell site, he completed a “refresher” induction course every 12 months. Mr Gee said that he has undertaken, in addition to the induction training at Liddell, online safety training courses on topics such as strata safety, tyre fires, fatigue management and obtaining pit licenses to operate trucks and excavators. Mr Gleeson did not dispute the evidence of Messrs Stair and Gee with respect to training and induction.
155 While Messrs Cooper and Garland did not refer to specific training following induction sessions, Mr Garland said that he completed safety training at each mine site that he worked at. Mr Gleeson noted that Mr Garland’s training was provided by Hitachi, and that all of Hitachi’s employees undertake regular and other training.
156 Each of the employees gave evidence that they were required to attend various meeting of the mine site operator, including:
(a) shift pre-start meetings;
(b) toolbox talks;
(c) safety meetings;
(d) additional weekly meetings regarding particular issues. Mr Gee, for example, attended a weekly meeting regarding oil analysis. Mr Garland also attended weekly planner meetings with Hitachi planners and supervisors (and occasionally LCO planners), where repair and maintenance metrics were discussed); and
(e) monthly meetings regarding the reliability of the MARC machinery.
157 The relevant employees were required to comply with the safety standards and policies that the LCO had in place. It was the evidence of Mr Trench and Mr Gleeson that being required to follow the mine site’s work, health and safety (WHS) rules or procedures is only indicative of the requirement of Hitachi employees to follow whichever is the higher standard between the relevant Hitachi WHS rule or procedure and the mine site’s rule or procedure and that any visitor to a mine site must also follow the mine site’s WHS procedures.
158 The employees did, from time to time, assist the mine’s permanent maintenance crew workforce where they required supplementary labour, or provided plant mechanic expertise in relation to a specific piece of equipment. Mr Gee gave evidence that when performing repairs in the mining pit, LCO employees “often assisted” in the work, and LCO maintenance employees assisted the respondent’s employees with maintenance and repair work on MARC machinery if required. Mr Cooper also gave evidence that “rebuilds” of Hitachi machinery that were located on mine sites were undertaken mostly by Hitachi employees, however occasionally fitters and mechanics engaged by the relevant mine site assisted with the rebuild work.
159 The respondent’s witnesses disputed this evidence on the extent that such requests would have been infrequent or on an “ad hoc” basis, where those employees deployed for work under the MARCs would spend the vast majority of their time fulfilling those obligations, which I accept.
“Eligible employees” and “black coal mining industry”
160 As can been seen from the definition of “eligible employees” extracted at [20] above, each definition under limbs (a) and (b) requires two common elements to be satisfied, namely the employee be: “employed in the black coal mining industry” and “whose duties are directly connected with the day to day operation of a black coal mine”.
161 The distinction otherwise is that limb (a) contains an employer limb, namely that the employee be employed “by an employer engaged in the black coal mining industry”, whereas limb (b) requires a location limb, that is the employee’s “duties are carried out at or about a place where black coal is mined”.
162 Accordingly, putting to one side the distinguishing features as between both limbs, it is appropriate to consider the two common features first.
A. “employed in the black coal mining industry”
163 The applicant contends that when determining whether an employee is “employed in the black coal mining industry”:
(a) being so “employed” is not synonymous with the question of whether the employer is engaged in that industry. Workers may be employed in the black coal mining industry even when their employer is not, and the converse may also be true: Bis Industries at [216];
(b) being so employed in the industry does not mean that they be employed in “black coal mining”, the use of the term “industry” connotes a wider range of activities including removal of overburden, the processing of black coal in particular situations, and the transportation of black coal on a coal mining lease: Bis Industries at [217]–[218];
(c) the question is one of combined law and fact, it involves applying the meaning of the expression as discerned from previous decisions, as well as consideration of the character of the employees’ employment having regard to all relevant circumstances: Bis Industries at [219]; and
(d) the structure of the definition of “eligible employee” indicates that an employee may be employed in the industry ,but not carry out duties at or about a place at which black coal is mined, or perform duties which are not directly connected with the day to day operation of a black coal mine: Bis Industries at [220].
164 Accordingly, the available constructional choices comprise:
(a) the words “employed in” may be construed as manifesting a Parliamentary intention that they are to be given their common and ordinary meaning (i.e. “occupied in” or “engaged in”) and not a term of art (i.e. a reference to the employment relationship specifically). On this approach, the contract of employment is relevant but not conclusive to the determination of whether the person is an “eligible employee”. This was the approach taken by White J in Bis Industries at [219];
(b) 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”. This is the approach contended by the respondent.
165 The applicant submits, that the first approach is the correct construction, but even if the second is preferred, it does not alter the outcome in this case given the contracts on their face are “agnostic” as to whether the employee is employed within this industry.
166 By contrast, the respondent contends that the determination of this question is resolved by a consideration of the terms of the employees’ contracts. Absent, contractual designation that the employees work in the black coal mining industry and the terms “prescribe conditions specific to work in the black coal mining industry (or any particular industry)”, then an employee cannot be found to fall within the definition of an “eligible employee”.
167 For the following reasons I accept the applicant’s submission as to the meaning of the phrase “employed in the black coal mining industry”.
168 First, “employed in” may be construed as manifesting a Parliamentary intention that the phrase is given its common and ordinary meaning (i.e. “occupied” or “engaged in”). This is apparent from a consideration of the construction of the definition of “eligible employee”. The phrase applies to both limbs (a) and (b). By virtue of the same, being so “employed” is not synonymous with the question of whether the employer is engaged in that industry; it may arise by virtue of where the work is performed.
169 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”: see e.g. Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245 at 253 per French J (as his Honour then was); Re McGee; Re Inquiry into Elections for Offices within Transport Workers Union and the Victorian Branch thereof (1992) 41 IR 27 per Keely J (at 33–34); Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; 2 DDCR 744, per Handley JA [4]–[7], Beazley JA [54]–[55]; Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427 per Meagher JA (Sackville AJA agreeing) at [34]. Whilst these authorities arise in different legislative contexts and in certain cases with respect to eligibility rules, the breadth of definition in the Administration Act, together with the Scheme’s operation and purpose, support this broad meaning in the context of this legislation.
170 The respondent contends that the preposition “in” must denote a “substantive connection” between the substantial character of the employer and the industry (with respect to limb (a)), and the principal purpose of the employment and the industry on the other (with respect to limb (b)). It is my view that care needs to be exercised when construing the phrase “employed in the black coal mining industry” such that no work is required of the distinguishing aspects of each limb. Given the multi-tiered definition of “eligible employee”, care must be taken when adopting the reasoning from other decisions that have considered different statutory phrases. For example, the phrase “employer in the coal industry” considered in Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348 at [50], is of limited utility. There, the Court of Appeal was considering, for the purpose of construing the scope of the relevant workers’ compensation legislation, the meaning of an “employer in the coal industry”. Here, by contrast, the definition of an “eligible employee” is not confined to an “employer in the black coal industry”, but rather the subject is an employee in that industry and includes an employee “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”.
171 The submission of the respondent that “[s]imply being an employee who works “in or about a mine” is not sufficient to be “in” the industry” (emphasis in original) is plain from the words of limb (b). That limb requires that those duties are directly connected with the day to day operation of a black coal mine.
172 The applicant’s preferred construction is consistent with the portable nature of the Scheme. The Scheme applies in the same way as an award applies to particular employment even when the employment contract may change by operation of s 48(5) of the FW Act. Under the Scheme, an “eligible employee” is entitled to portable long service leave during any of those periods that the employee is defined as such, regardless of whether the employee is employed by the same employer. Reading “employed in” as being consistent with “engaged in” or “occupied in” permits the scheme to cover employees (even itinerant ones) when they are engaged in the industry.
173 If the respondent’s approach were to be accepted, an employee may be engaged in the black coal mining industry for decades, engaged by multiple employers, but would only be the subject of the long service scheme for those periods where their employment contract prescribed the matters that the respondent stipulates must be prescribed. This is completely antithetical to the intention of the scheme.
174 Secondly, being so employed in the black coal mining industry does not require that the employee be employed “in black coal mining”. I accept the applicant’s submission, 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: Bis Industries at [217]–[218]. This submission is supported again by the breadth of the definition, together with its adoption of the meaning of “black coal mining industry” as contained in the Award (extracted at [23] and [24] of these reasons). This definition in turn embraces the meaning of the phrase “applied by the courts and industrial tribunals, including the Coal Industry Tribunals”, subject to the stipulated inclusions and exclusions. The inclusion of “(d) other work on a coal mining lease directly connected with the extraction, mining and processing of black coal” is again indicative of a definition of broad import.
175 As submitted by the applicant, which I accept, the mirroring of the definition in the Award was clearly deliberate and tied to the coverage of the scheme and Federal awards in the black coal mining industry from 1992 to 2009, and then from 2009 when long service leave was not a permitted matter in modern awards. The mirroring was to preserve the existing legislative scheme so it applied universally in the black coal mining industry. I accept also the applicant’s submission, that the respondent’s construction would likely have the effect of substantially narrowing the scheme to a very limited number of employees: Those whose contracts prescribed that they were to work in the black coal mining industry, their duties were to be carried out at or about a place where black coal is mined and their duties were to be directly connected with the day to day operation of a black coal mine.
176 Thirdly, the question of whether a person is “employed in the black coal mining industry” is one of combined law and fact, involving 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: Bis Industries at [219]. Justice White’s reasoning with respect to the definition of “black coal mining industry” in the Award is informative in this case, given the Administration Act adopts the meaning of the phrase as contained in the Award.
177 However, one cannot simply embrace the definition such that it limits the multi-tiered definition of “eligible employee”.
178 Fourthly, 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”.
B. “duties directly connected with the day to day operation of a black coal mine”
179 The determination of whether duties are directly connected with the day to day operation of a black coal mine was considered comprehensively by White J in Bis Industries and requires consideration of three matters, namely the concepts of “duties”, “direct connection” and the “day to day operation of a black coal mine” at [248]. “Duties” comprise all the functions and proper actions required of the employees under their contracts of employment and under the applicable statutes and regulations: at [239]. The employees’ duties must be “directly connected” with the day to day operation of a black coal mine, which encompasses a number of activities, not limited to the extraction of coal from the seam: at [250]. The term “directly connected” requires a particular form of relationship between the employees’ duties and the day to day operation of the mine where that connection should be direct or immediate: at [252]. The phrase “day to day” indicates the connection “must be with the daily, regular or routine activities of the coal mine”: The activities do not need to be carried out on a day to day basis: at [251]. Those activities may, by virtue of the interactions between the sub-clauses of cl 4.2 of the Award, include activities that do not involve the actual extraction or mining of black coal: at [253].
Whether the determination is confined solely to a consideration of the employees’ contracted terms
180 I do not accept the respondent’s contention that the determination of whether an employee is employed in the black coal mining industry is resolved solely “by reference to the contractual relationship, rights and obligations between the parties, as opposed to post-contractual conduct (such as, for instance, where, when and how the Relevant Employees happened to work at or about a black coal mine site)” with reliance on three recent High Court decisions: WorkPac Pty Ltd v Rossato [2021] HCA 23; 271 CLR 456; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 398 ALR 404; and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 398 ALR 603.
181 In each of those cases the High Court was considering anterior questions as to whether a person was an employee or an independent contractor or a ‘casual employee’, and in essence the character of the employment relationship by reference to common law principles, not 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. Contrary to the urging of the respondent, the High Court trilogy of cases above does not comprise a panacea for its constructional pain.
182 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, namely an employee will be “employed in” the black coal mining industry if they are “contracted” to be employed in work in the black coal mining industry. The determination of whether an employee is within a particular industry and falls within the definition of “eligible employee” is a factual question requiring consideration of all the surrounding circumstances: R v Hickman; Ex parte Fox and Anor [1945] HCA 53; 70 CLR 598 at 608.
183 This is not to say that the relevant employees’ employment contracts will not be relevant in determining whether the employee is employed in the black coal mining industry. Consistent with the approach identified by White J in Bis Industries at [219], the terms of a contract will comprise a relevant circumstance in answering the statutory question. As submitted by the applicant, the contract is an appropriate starting point, but the analysis is not confined to its terms.
184 The contractual designation by the parties that an employee is engaged in a particular industry or that a particular industrial instrument (e.g. an award or agreement) applies to the employment could not be determinative of the statutory question. A party is not able to contract out their rights and obligations established by awards: Josephson v Walker [1914] HCA 68; 18 CLR 691 at 700; Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250 at [23]–[35]; Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; 99 FCR 95 at [17]–[25]. Accordingly, the respondent’s submission that the focus upon the contractual rights and obligations “coheres with the corresponding inquiry under the FW Act concerning modern award coverage”, purportedly with reliance on s 48(5) of the FW Act, is misconceived.
185 Aspects of the determination of whether the person is an “eligible employee” require a factual inquiry as to where the employee’s duties are undertaken, the nature of those duties and their connectedness to the operation of the mine. The location dimension of limb (b) (“whose duties are carried out at or about a place where black coal is mined”) necessarily requires an assessment of where the employees’ duties are actually carried out. Similarly, both limbs require the determination of whether the employees’ duties are “directly connected with the day to day operation of a black coal mine”. Necessarily, this requires an assessment of the “day to day operation” of a relevant mine and an assessment of whether the employees’ duties are “directly connected” with that operation.
186 Accordingly, contrary to the respondent’s submission, the adoption of the applicant’s construction will not lead to “everyone [in its business] being in the industry or not in the industry who was a field services employee”. This submission completely overlooks the numerous parts of each of the limbs which require satisfaction with respect to each employee who is the subject of the application. Each require separate factual and legal analyses such that an employer cannot contract out of its obligations under this scheme by creating an anodyne generic contract.
187 To the extent that the respondent suggests that such an assessment would entail a “wide ranging review of the entire history of the parties’ dealings” or “raking over the day-to-day workings of a relationship”, this is unlikely to be the case. Often it will be a manageable assessment, as in the present case. The respondent 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.
188 Furthermore, there is an air of unreality in the respondent’s submission to suggest that employment contracts contain the level of specificity required to so “designate” or not “designate” an employee satisfying all of the matters which require determination of whether an employee is an “eligible employee” under the Administration Act. The respondent’s own “template contracts” which it contended, on its evidence, apply across its operations to give them the greatest flexibility and efficiency, are largely agnostic as to where the work is to be performed and the actual duties of the work to be performed. By virtue of the same, the respondent would not be able to rely on recent High Court authority. The plurality in Personnel Contracting made very clear that one’s ability to determine at common law employment status by reference to the contract could only occur where the contract “comprehensively” prescribed the rights and responsibilities of the employment: Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [43], [47], [59]; per Gordon J at [173] and [190].
189 Further, there is an apparent inconsistency in the respondent’s position. The respondent relies on evidence as to the nature of its business now, not at the time of the contract: For example, it relies on evidence as to its business revenue in the period between 2020 and 2022. The respondent appears to contend that peculiar to limb (a), the analysis must be post-contractual, but in all other respects the analysis of limbs (a) and (b) is limited to the express terms of the contract. The reason for this approach is unexplained by the respondent. It reveals, again, the lack of persuasiveness in the respondent’s submission. The definition of “eligible employee” includes questions which on any view cannot be answered by the contractual terms only.
190 Lastly, the respondent contends that this “focus on the contractual rights and obligations similarly coheres with the Scheme’s evident purpose”, namely a safety net entitlement, which demands certainty. This argument is superficially attractive but ultimately is not persuasive for the following reasons. First, it assumes contractual comprehensiveness which does not apply in this case and is unlikely to apply in most cases. Secondly, the Scheme demands specific consideration of contractual performance (for the reasons set out at [185]). Thirdly, the Scheme requires employers to make determinations on a monthly basis, given that the levy must be paid within 28 days of the end of the month in which the eligible wages were paid and a “return” must be prepared and provided to the applicant within 28 days of the end of the month in which the eligible wages were paid (ss 3B, 4 and 5 of the Collection Act). The requirement of a monthly assessment, together with specific recognition of casual employees being included in the Scheme (see for example, ss 39A(3), 39AA(2)(c) of the Administration Act) assumes, consistent with the intention of the Scheme, that an employee may “dip in and out” of working in the black coal mining industry, just as an employee may “dip in and out” of working for one or more employers in the industry. I accept the submission of the applicant that the Scheme caters for the interests of both the employer and the employee to ensure, by way of monthly assessments, that the employer does not pay more than required. Fourthly, to the extent that the respondent’s submission was articulated to “turn upon the daily or weekly vagaries of the particular arrangements of (or at) a particular mine…[where] an employer may not have direct oversight of, nor immediate practical day-to-day control over, at least some of those practical arrangements”, a similar argument was raised and rejected by White J in Bis Industries at [263]–[264]. The circumstances of this case, are a case in point.
191 The respondent referred to the operation of s 39A of the Administration Act, which prescribes the qualifying service period for which long service leave entitlement applies, and used Mr Garland’s circumstances as an example. Section 39A(2) identifies periods where long service leave does not accrue, which include, inter alia, periods of unauthorised absence (s 39A(2)(b)(i)), periods of stand down (s 39A(2)(b)(ii)) and periods during which the employee is absent from work “because of a personal illness, or a personal injury” (s 39A(2)(b)(iii)). On the respondent’s contention, by reason of this complexity within the Scheme as to when an employer is bound to pay the levy or not for qualifying service, if there is not contractual certainty, it illustrates uncertainty. However, this argument lacks merit.
192 The Scheme was necessarily created to apply to itinerant employees, who come in and out of the industry and who are employed by many different employers over time. The Scheme includes casual employees. The Scheme also does not require a qualifying period by which the employee must have been first employed by a particular employer in order for the employer to be required to pay a levy. The employer must do so within 28 days after which the employee has performed the work. Therefore, the Scheme demands, contrary to the respondent’s dislike, that all employers attend to the determination of whether their employees are “eligible employees” on a monthly basis. The dipping in and out of the Scheme, and the attention it demands of employers, is central to the operation and intention of the Scheme: To apply to employees with multiple employers, unpredictable hours and work patterns. This is clearly recognised by the terms of ss 39A and 39AA of the Administration Act, which refer to the “qualifying service” being a period during which the employee is an eligible employee “of one or more” employers, where the “qualifying service” includes a “casual employee” who is an “eligible employee at any time during a week” (emphasis added) and where the employee is a “part-time” or a “casual” employee “at any time during the week”.
193 For the respondent to contend that there is a lack of certainty, is overstated. All employers are required under the FW Act to create and keep records as to the employee’s employment (full-time, part-time, permanent, temporary or casual), the date upon which the employment began, the rate of remuneration paid, the number of overtime hours worked, a copy of any agreement regarding the averaging of hours, any leave taken, the superannuation contributions made and must issue pay slips each pay period in the prescribed form (s 535 of the FW Act, Part 3-6, Division 3 of the Fair Work Regulations 2009 (Cth)). All employers are required to determine whether their employees are covered by industry awards. Many employers’ employees are covered by a range of different awards and an employer is required to routinely assess at the inception of employment, and over the course of their employment reassess, award coverage of its employees individually for a multitude of reasons, including that the nature of employees’ duties and responsibilities change, awards are varied and coverage provisions change, and where the nature of the employer’s enterprise changes.
194 The respondent raised a number of questions as to the operation of s 39AA of the Administration Act, which contains the formula to calculate the amount of long service leave (for which the levy is payable) for a week of qualifying service. The Scheme operates such that if an employee is a full-time employee at all times during the week, then the “working hours” used for the purpose of the formula are set at 35 hours regardless of the hours actually worked by the employee. This formula is suggestive of certainty rather than uncertainty and the extent to which variation occurs for part-time and casual employees is based on the total number of hours worked during the week, this is information the employer would be readily cognisant of.
195 In addition, the respondent contended that by operation of s 39EA of the Administration Act, which states that Pt 5A of the Administration Act applies in relation to eligible employees and their employers to the exclusion of a State or Territory law that deals with long service leave, the applicant’s argument that there is an ability to dip in or out of the Scheme cannot be the case because of the difficulty arising with respect to any calculation. The resolution of whether the respondent is required to comply with any State law requires consideration of the State law. The applicant referred to the fact that certain of the corresponding State legislation dealt with this issue (s 4(2) of the Long Service Act 1987 (SA), s 4(2)(b)(i) of the Long Service Act 1955 (NSW)). The existence of there being corresponding rights and obligations under State and Federal law is not unique or unusual and is an issue requiring resolution routinely by employers.
The applicant’s alternative case – the constructional question is resolved in its favour by virtue of the employees’ contracts
196 In the alternative, the applicant submits that if, contrary to its primary submission, that the constructional question is resolved by the employees’ contracts, then the same result, in the applicant’s favour, occurs. This is said to be done by application of orthodox principles of construction where the Court considers the terms of the employees’ contracts together with “the surrounding circumstances known to the parties, including the purpose and object of the transaction and by assessing how a reasonable person would have understood the language in that context”.
197 In particular, by application, the “objective facts” of which the Court may be satisfied are that the employees were employed “in the black coal mining industry to repair and maintain the equipment on those black coal mine sites by actually working on or about those black coal mine sites”.
198 By application of orthodox principles, a contract may be construed and interpreted by an examination of the text of the document in the context of the surrounding circumstances known to the parties, including the purpose and object of the transaction and by assessing how a reasonable person would have understood the language in that context (see e.g. Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40]; Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; 210 CLR 181 at [11]; Zhu v Treasurer of NSW [2004] HCA 56; 218 CLR 530 at [82]; and International Air Transport Association v Ansett Australia Holdings Ltd (Subject to Deed of Company Arrangement) [2008] HCA 3; 234 CLR 151 at [8] and [53]).
199 Regard may be had to the contract’s purpose – the genesis of the transaction, the background, the context and the market in which the parties are operating – to aid the construction of a contract’s term: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; 149 CLR 337 at 350–351. These principles were reaffirmed more recently by the High Court majority in Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35] in the context of a commercial contract:
[T]his court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”.
(Footnotes omitted, emphasis added.)
200 By reason of my finding that the question of whether an employee is an “eligible employee” within the meaning of the Administration Act is a question of fact not determined solely by what is contained in the contract, it is not necessary for me to consider the applicant’s alternative case. I would, however, make the following brief observation in relation to it. I do not consider one is able to determine whether an employee is “employed in the black coal mining industry”, which is a mixed question of fact and law, by reference solely to the terms of the employee’s contract by resort to the application of orthodox principles of contractual construction. Contractual construction concerns the construction of the meaning of a particular term or terms within a contract, not the resolution of a broader statutory question.
Issue 1: Are the Respondent’s employees “eligible employees” within the meaning of limb (b) i.e. are they employed in the black coal mining industry?
201 Issue 1 requires that the following matters be determined:
(a) whether the employees were “employed in the black coal mining industry” (the employment limb);
(b) whether the employees “carried out” duties “at or about a place where black coal is mined” (the location limb); and
(c) whether the employees’ “duties” “are directly connected with the day to day operation of a black coal mine” (the operational limb).
Employment Limb – Are the specific employees employed in the black coal mining industry?
202 For the following reasons, I find that each of the employees were or are (in the case of Mr Stair) employed in the black coal mining industry.
203 The respondent contended, in broad summary, that the relevant employees were not employed in the industry: (a) given the absence of specific contractual designation (which for the reasons outlined above, I reject); (b) by virtue of the employees’ contractual terms the contract is with the respondent who provides services to, and not in, the industry; and (c) by virtue of no relevant part of the respondent’s business having a “substantial character” in the black coal mining industry. I reject those submissions for the following reasons.
204 First, there were a number of contractual terms that indicate that the employees were employed in the industry during their employment with the respondent.
205 The employees’ stipulated “place of work” was Hitachi’s Muswellbrook Branch. The 2010 contracts (for Mr Gee, Mr Garland and Mr Cooper) were also on the Hitachi Muswellbrook letterhead, and were each entered into by a representative of Hitachi Muswellbrook (save for Mr Stair for whom a Mr Jamie Payne signed Mr Stair’s contract and it was not clear on the face of the contract whether Mr Payne worked at the Muswellbrook Branch). All four employees were employed at the request and behest of the Muswellbrook branch. Each contract described the Hitachi Muswellbrook branch operating a 24x7 operation/roster “to support our customers”.
206 The contracts themselves provide indicators that these employees were to be based out of the Muswellbrook branch, for the benefit of that branch. Three of the contracts required the employee to report to a person in the role of Field Service Supervisor: Mr Gee, Mr Garland and Mr Cooper were required under the contract to report to Hitachi’s “Field Service Supervisor”. Mr Stair was to report to Hitachi’s “Project Manager”. The evidence revealed that the Field Service Team, as the name suggests, is responsible for servicing Hitachi equipment for customers “in the field”, that is, at customer sites, and the other contract (Mr Stair’s) required the employee to report to the person who was the Hitachi site manager at Liddell at the relevant time.
207 The Muswellbrook branch was, at all relevant times, based in, and primarily providing services to clients in, the black coal mining industry in the Hunter Valley of New South Wales and surrounding areas. Mr Moledo conceded under cross-examination that the Muswellbrook branches’ clients were “predominantly” in the black coal mining industry, where the majority of the Muswellbrook branch’s revenue was generated from the black coal mining industry and necessary labour needed to be available to work to a roster dictated by the client and the maintenance schedule. The fact that the Muswellbrook branch was primarily providing services to clients in the black coal mining industry is reflected in the objective evidence of the mining contracts which it entered into with companies in the black coal mining industry. This includes a number of MARCs which were in existence and ongoing at the time of entry into the relevant employees’ employment contracts, which includes Maintenance Schedules containing allocated hours for Hitachi personnel to perform work at the customer sites. I accept the submission of the respondent that its “maintenance offering to the black coal mining industry” comprises 2.6% of its revenue. However, given the breadth of the phrase “employed in the black coal mining industry”, it is not limited to a consideration of the employer’s business model.
208 The respondent submitted that the employees were required to repair, service and maintain Hitachi-supplied equipment (not simply those used by clients in the black coal mining industry). The contracts do contain embedded flexibility regarding location and duties (e.g. “the company may require you to work at other locations in accordance with the needs of the business”), consistent with the respondent’s model whereby it may require employees to work at multiple sites where its machinery is being used whether in the black coal mining industry or any other industry. However, I do not accept that by virtue of the respondent structuring its business according to “field service teams” this means that the relevant employees do not fall within the definition of “employee within the black coal mining industry”. The respondent relied on the evidence of Messrs Gleeson, Trench and Moledo. Generic evidence of the arrangement of an employer’s enterprise, whilst of some relevance, is no answer to specific evidence on the relevant employees’ circumstances. Here, what is being determined is whether these specific employees are “eligible employees”. It is a question of fact determined by each of their circumstances. Furthermore, the fact that certain of the enterprise’s employees may be properly designated as being within one industry does not mean that other employees within an enterprise may not fall within another industry: Such a circumstance is ordinary within an Award system. There are no, and have never been, clean lines of demarcation.
209 Whilst I accept that where an employee routinely performs work at multiple client sites (some of which are black coal mines), the Court will be required to consider each employees’ circumstances: It is a question of degree requiring consideration of all the circumstances. Here, however, save for the contractual flexibility, none of the employees were deployed in the manner contended for by the respondent. They were routinely deployed either solely at one black coal mine site or at multiple black coal mine sites. All that the respondent’s illustrative examples of the experience of four other employees in 2020 and 2021 achieve (extracted above at [105]), is to provide instances of the experience of other employees. None of those employees’ contracts were provided. None of those employees gave evidence. No evidence was adduced to suggest that they were deployed to service the MARC contracts.
210 Each of the relevant employees was engaged to perform maintenance and repair on Hitachi machinery where the position was also described as having a primary purpose to provide “quality diagnostic and general maintenance service for our customers’ equipment”, each required an ability to work unsupervised, each was described as being a role to provide a service for external customers, and a condition of employment for each employee was having and maintaining a current driver’s licence.
211 Importantly, each job description identified that the employee must have “[s]ound technical knowledge of mining equipment” as an “essential” component of the employee’s experience (and no requirement to have such skill with respect to any other form of machinery). Mr Gee was to be employed as a “Field Service Roster Fitter 1”, and Mr Cooper and Mr Garland were to be employed as “Roster Mechanical” Fitters. Mr Stair was employed as a High Voltage Electrical Fitter, in the “Field Service” Department.
212 The relevant employees were required to report to and be supervised by a Hitachi supervisor. In so far as they liaised with clients concerning aspects of their duties, they did so pursuant to their contractual obligation to follow Hitachi’s directions but where the contract was agnostic to the client industry those employees were to service.
213 Secondly, the unchallenged evidence of the employees was that they in fact carried on repair and maintenance work (or supervision) exclusively (or at least almost exclusively) at black coal mine sites (Liddell or otherwise), as part of field labour supplied by the respondent for the maintenance and repair of the mining machinery at those mines. As identified, at [4], above, Mr Stair has worked solely at or about the Liddell mine; Mr Gee has worked at or about the Liddell mine save for a six month spell at the Glendell mine; Messrs Garland and Cooper have been engaged at various black coal mining sites.
214 Thirdly, I accept that their work was performed almost exclusively on Hitachi machinery but they did also assist mine sites, on an occasional and ad hoc basis, with the servicing of other machines. Such work came outside the scope of the MARC and was subject to additional charging.
215 Fourthly, I accept that the relevant machinery (maintained by the relevant employees) was used to move overburden from the mine pit, in the day to day operations of the mines. However, I do not accept that the removal of the same, in contrast to coal, detracts from the argument that that work has association to the “black coal mining industry” for the reasons outlined in these reasons above. The removal of overburden has been found, and correctly so, in multiple authorities, to have the requisite connection to the industry: see Bis Industries at [231], [257]–[259]; Federated Engine Drivers & Firemen’s Association of Australasia v Roche Bros (Queensland) Pty Limited [1990] ACIndT 4388, 11.
216 Fifthly, the relevant employees worked in the mine operator workshops at the mine sites (not off site) with employees of the mine operator (or in the mine pit attending to breakdowns) and shared equipment and consumables with the mine operator. As can be seen from the evidence above, there was no dispute between the parties that the relevant employees worked principally at the main workshop operated by the mine operator on the mine site. There was detailed evidence as to the Liddell maintenance workshop at which Mr Stair solely and Mr Gee primarily worked. However, this evidence did not describe the workplaces of the other employees. Nonetheless, it is my view that the evidence of all employees did establish that the employees worked at the mine operator workshops at the mine sites (not off site) and with employees of the mine operator (or in the mine pit attending to breakdowns). Each of the employees gave similar evidence of shared tools and consumables with the mine operator. Further, the performance of breakdown work in the pits was routine.
217 Sixthly, the evidence revealed a degree of integration between the mine site and Hitachi workforces. The relevant employees, whilst supervised by Hitachi’s onsite supervisors, also routinely worked with and received direction from mine supervisors. As stated, at [150] above, there was no uniformity in the evidence of the relevant employees as to the nature and degree of the supervision and/or direction received from Hitachi and the mine operator. As such, I have limited my findings to the relevant employees having worked with and received direction from mine supervisors. The evidence established that the relevant employees were routinely allocated duties and required to liaise with LCO supervisors when performing their work. This arose because the MARCs required a degree of cooperation and this was necessarily so given the relevant employees were on site performing daily functions on machinery being utilised by the mine site.
218 Seventhly, the relevant employees were required to participate in site inductions, shift pre-start meetings, tool box talks and safety meetings. The employees received training about and were required to comply with the policies and procedures of the mine operator.
219 Eighthly, the evidence revealed that the relevant employees worked various rosters depending on the nature of the work they were performing. Those rosters were created by Hitachi and did on occasion correspond with the crews of the mine sites.
220 This evidence reveals, even on the respondent’s test, a substantive connection between the principal purpose of the employment and the industry.
221 For these reasons, I am satisfied that the relevant employees were “employed in the black coal mining industry”.
The Location Limb – Whether the employees’ duties were carried out at or about a place where black coal is mined?
222 I accept the applicant’s contention that as to whether the employees’ duties are carried out at or about a place where black coal is mined is determined by considering the “employee’s duties” as being “functions”, as per Bis Industries at [239], namely all the functions and proper actions required of the employees under their contracts of employment and under the applicable statutes and regulations.
223 This limb is satisfied where the work carried out by the relevant employees formed part of their assigned duties. The contract required that the employees “work at other locations [beyond the Branch Workshop] in accordance with the needs of the business”. Here, it is uncontroversial that the work was carried out at or about a place where black coal is mined, given it was carried out at black coal mine sites (on the mine site, workshop or the mine pit). The respondent readily accepted that a substantial proportion of the employees’ day-to-day tasks were “in fact” carried in, at, or about black coal mines.
224 On the respondent’s submission, this acceptance in fact, does not resolve the quandary, consistent with the reasoning of the recent High Court trilogy of cases referred to above at [180], the proper inquiry is directed toward the contractual bargain: The full scope of the duties the employees agreed to perform, namely, the “Overall Position Purpose” in each is similar: “[t]o provide quality diagnostic and general maintenance service for our customers’ equipment in a professional, timely manner”. The full scope of their duties, properly characterised, involved “the performance of work on any Hitachi plant and equipment, anywhere”. Nothing in the contractual bargain confined those duties to black coal mine sites.
225 On the respondent’s view, to the extent that White J reached the opposite conclusion in Bis Industries (at [242]–[244]), that conclusion is either distinguishable on the facts here or otherwise incorrect. The respondent submitted that White J’s conclusion was distinguishable, given the relevant employees’ contracts of employment demonstrates that they are and were not ever “employed in” the black coal mining industry.
226 For the reasons set out at [180]–[195] above, I do not accept that the location limb is determined solely by what is contained in the employees’ contracts – it is a question of fact to be determined by the circumstances, including but not limited to what is contained within them. 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.
227 I am satisfied that the location element of limb (b) is established.
Operational Limb – Are the specific employees’ duties directly connected with the day to day operation of the black coal mine?
228 For the following reasons, I am satisfied that the operational limb has been satisfied.
229 A review of the relevant employees’ duties, as encompassed by all of the functions and proper actions required of the employees under their contracts of employment and under applicable statutes and regulations, revealed that they were employed within the Muswellbrook Branch to carry out their current duties and responsibilities as contained within their Position Description in Schedule A to their contracts “to provide quality diagnostic and general maintenance service for [the respondent’s] customers’ equipment”, where those customers were predominantly in the black coal mining industry.
230 Whilst I accept that in determining what constitutes the employees’ duties consideration is given to the employees’ contracts of employment and what may be required of them, I do not accept the respondent’s submission that the terms of the contract must in effect designate the same for the reasons set out above.
231 The respondent contends, in the alternative, even if one focuses upon the work actually performed rather than the work contractually agreed, the requisite direct connection is absent. According to the respondent’s submission, it is not enough that the plant and equipment maintained by the relevant employees is located at or about a black coal mine site or is used in the operation of, or is even essential to the operation of, a black coal mine site. Such connection cannot be sufficiently direct to engage the coverage clause: If it were otherwise, The King v Central Reference Board; Ex Parte Thiess (Repairs) Pty Ltd [1948] HCA 9; 77 CLR 123 (Thiess Repairs) and all the cases which followed and applied it would no longer apply, contrary to the express intent and drafting of the Award as picked up and applied by s 4 of the Administration Act.
232 The respondent heavily relied on a number of the early High Court authorities which had considered how one determines whether an enterprise is within a particular industry: Thiess Repairs at 135; R v Moore; Ex Parte Australian Workers’ Union (1976) 11 ALR 449 (Poon Bros) at 454–5 (Barwick CJ, Gibbs, Stephen, Mason and Jacobs JJ agreeing); contra Bis Industries at [260]–[262].
233 The respondent submits that these authorities reveal that one cannot adopt a narrow approach to the consideration of the nature of the respondent’s business by reference to one branch, namely the Muswellbrook Branch, to mount a case that has a substantial character in the black coal mining industry, which it contends is contrary to the reasoning in Thiess Repairs (at 135) which requires consideration of “the substantial character of the industrial enterprise” (namely the whole enterprise) (see also Poon Bros at 455), and Bis Industries at [281] which the respondent states is on “all fours”.
234 Care needs to be taken when seeking to adopt the dicta from these authorities when construing an aspect of one limb of the statutory definition of “eligible employee”. A review of the multi-tiered limbs of the term “eligible employee” as well as the expansive definition of “coal mining employees” and “black coal mining industry” under cl 4 of the Award, reveal that the drafters of the Award and then later the Administration Act, intended to encapsulate broad definitions which, for example, adopted a broader test than the “substantial character of the industrial enterprise” test (which, as apparent, focuses on the employer’s enterprise). Limb (b) and cl 4.1(b)(ii) of the Award illustrate this expansion. Accordingly, the respondent’s reliance on Thiess Repairs and Poon Bros, for example, reveal the shortcomings of the respondent’s approach. As recently observed by the Full Court of this Court in Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; 245 IR 449 (TWU) at [21]–[22], the test to be applied is to discern the objective meaning of the words in an “Award” to the extent that they are adopted in a statute. Here, like in TWU, the definition in limb (b) embraces employees’ duties to be determined by reference to their relationship to the day to day operation of a mine rather than looking at the employer’s enterprise (relevant to limb (a)).
235 Similarly, the same caution must be exercised when relying on dicta from the recent Full Court decision of BioGiene Pty Limited v Mullan [2022] FCAFC 73. The respondent relied on BioGiene at [36]–[38], there the Full Court held that “[t]he question that arises presently is whether cleaning qualifies as an activity that is relevantly (which is to say, for the purposes of cl. 4.2(b) of the MIA [Meat Industry Award 2010]) related and ancillary to the primary activities of the… abattoir. In our view, it does not.” The respondent conceded that the maintenance of haulage equipment “is ancillary to the operation of a mine” but an activity being ancillary is not enough. However, the reasoning in BioGiene is of limited utility in this case: The central question in BioGiene was whether or not BioGiene was an employer “in the meat industry”, not the application of a test which concerned the activities of an employee within an industry.
236 There was an apparent acceptance by the respondent that the employees maintained equipment located at or about a black coal mine site, which was used in the operation of the mine and essential to its operations. To the extent that the respondent’s submission brought into issue that the relevant excavator and trucks were used to remove and transport overburden, not black coal, there is evidence from the employees that they observed the trucks being used to transport coal itself, for which there was no challenge. In any event, the removal of “overburden” plainly amounts to the performance of duties directly connected with the day to day operation of a black coal mine site given, without its removal, the black coal would not be exposed and capable of extraction: Its removal has been previously expressed to be integral to the day to day operations of an open cut mine: Roche Bros at 11. The fact of this recognition is poignant given the definition of “black coal mining industry” in the Award, as adopted in s 4 of the Administration Act, is that the term is to have the meaning applied by the courts and industrial tribunals, including, specifically, the Coal Industry Tribunal. Furthermore, Bis Industries specifically accepted that the day to day operation of a black coal mine encompasses a number of activities and is not limited to the particular activity of extraction of coal from the seam: at [250]. To find otherwise would involve the adoption of an unduly narrow conception of the expression.
237 In Bis Industries, the relevant employees performed work on diesel powered equipment necessary for the daily operation of the mines (including performing inspections so that machinery could be used underground, repairs performed underground and scheduled maintenance undertaken): at [254]–[256]. While this machinery was ancillary to the actual extraction, processing and transport of the coal, it was nevertheless held to be sufficiently directly connected: at [265]. Justice White also referred to other examples of necessary incidents of the daily activities of a coal mine, including transport of the production groups from the mine entrance to the coal face: at [260].
238 It follows that the duties of the relevant employees are directly connected with the day to day operation of a black coal mine. The evidence reveals that the relevant 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.
Issue 2: Are the Respondent’s employees “eligible employees” within the meaning of limb (a) i.e. are they employed in the black coal mining industry and had duties directly connected with the day-to-day operation of a black coal mine?
239 Issue 2 requires that the following matters be determined:
(a) whether the employees were “employed in the black coal mining industry” (the employment limb);
(b) whether the employer is “engaged in the black coal mining industry” (the employer limb); and
(c) whether the employee’s “duties” “are directly connected with the day to day operation of a black coal mine” (the operational limb).
Employer limb – employed by an employer engaged in the black coal mining industry
240 My conclusion with respect to limb (b) means it is unnecessary for me to consider this part of the case, however for completeness, I make the following brief observations. I rely on my views above, as they relate to the employment and operational elements of this limb.
241 For the reasons which follow, I am of the view that the applicant, if it had been required, is unable to satisfy the employer element and therefore the employees are not “eligible employees” within the meaning of limb (a).
242 The evidence of Messrs Moledo, Trench and Gleeson described in detail the nature of the respondent’s operations, including its structure and the fractional percentage (2.6%) of its revenue which is raised from servicing black coal mining clients. The respondent submits that its enterprise may be described as follows:
10. Hitachi’s enterprise involves supplying new and used earthmoving and materials handling equipment, and after-sales maintenance support, to customers in a wide range of industries. Those industries include building construction, civil construction, minerals mining, forestry, waste and recycling, rail, power generation, communication and electricity infrastructure, government works, defence and agriculture. Hitachi sells to and supports clients across a broad range of sectors within the minerals mining industry, of which black coal mining is but one. Indeed, the provision of labour services to clients (for maintenance, service and repair of equipment) within the black coal mining industry comprises a mere 2.6% of the total annual revenue of Hitachi’s enterprise.
11. Hitachi operates through a network of branches across Australia grouped into four geographical regions: Northern, Southern, Eastern and Western. Each branch is a retail outlet selling Hitachi machines and spare parts: some have workshops attached to provide repair and maintenance services. No branch sells or supports machinery exclusively to one industry, or is located on a mining lease (black coal or otherwise). Perhaps not surprisingly, certain branches derive a greater proportion of their revenue from particular industries based upon their geographic location. For example, given its location in the Hunter Valley, the Muswellbrook Branch (at which each of the Relevant Employees were based) happens to derive most of its revenue from black coal mining. By contrast, branches in the Western Region (the largest by revenue) derive most of their revenue from iron ore mining (and none from black coal mining), whilst branches in Sydney and Melbourne derive most of their revenue from civil and construction customers.
12. Four of Hitachi’s five branches within the Eastern Region has a Field Service team within its service department. The Field Services team – within which each of the Relevant Employees worked – is responsible for servicing Hitachi equipment at customer sites and at Hitachi’s branch workshops. Field Service employees in the Eastern Region are trade qualified across a range of disciplines. Their work includes Hitachi machinery assembly (variously at Hitachi’s assembly yard at Muswellbrook, at branch workshops or on customer sites), commissioning/warranty work on customer sites, maintenance and repair work on customer sites and at branch workshops and planned shutdown work.
(Footnotes omitted.)
243 The applicant referred to the respondent’s evidence as to the volume of Hitachi’s sales of equipment, parts and labour to the black coal mining industry. In the 2019 financial year, for example, as the applicant relied on, the revenue generated from sales of equipment to the black coal mining industry was in the order of $254 million, revenue generated from service sales was in the order of $129 million, and revenue generated from parts sales was in the order of $197 million. Accordingly, it was the applicant’s contention that on no view can such an operation in the black coal mining industry be fairly characterised as “small and insubstantial”. The respondent is, in the applicant’s submission, an employer engaged in the black coal mining industry, as that phrase would ordinarily be understood. Hitachi’s business is fundamentally distinct, according to the applicant, from that which was the subject of the Bis Industries decision: It competes in the Hunter Valley region with other companies which supply equipment to the black coal mining industry, such as Liebherr, German OEM and Caterpillar.
244 Whilst, I accept the submission of the applicant that the definition requires that there be a sufficient connection between the employer and the black coal mining industry where it does not have to be the primary revenue stream for the entire entity, particularly where the entity has billions of dollars in revenue, I am of the view that one has to consider the true character of its business and posit what is the substantial character of the industrial enterprise in which the employer and employee are concerned? In answering this question, the enterprise’s revenue stream is relevant.
245 Whether an employer is engaged in the black coal mining industry depends on the “substantial character” of the industrial enterprise in which the employer and the employee are concerned: Transfield Services (Australia) Pty Ltd [2014] FWC 5368 at [14] Ashbury DP, citing Thiess Repairs at 135; Bis Industries at [78]–[79] and [281]. As Latham CJ opined in Thiess Repairs at 135:
Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company’s work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering works which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry.
In my opinion the question to be asked is – What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty. Ltd. That employer is not engaged in coal-mining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contracting party (Thiess Bros. Pty. Ltd.), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry. In my opinion the evidence in this case shows that Thiess (Repairs) Pty. Ltd. did not employ Belmar in the coal-mining industry. As already stated, the Central Reference Board can make an order only in relation to certain matters in or in connection with that industry, and therefore the Board had no jurisdiction to make the order for the reinstatement of Belmar.
In my opinion, therefore, the order nisi should be made absolute.
246 The evidence revealed that Hitachi’s enterprise involves the supply and servicing of earth moving and materials handling equipment to customers in a wide range of industries, as described in the evidence of Messrs Moledo, Trench and Gleeson. The volume of sales and revenue to clients within the black coal mining industry is relevant but also the percentage of that revenue to the entire operation.
247 The respondent does not engage in the extraction, processing or transport of coal at a coal mine.
248 Whilst I accept that there is some integration between the work undertaken by the respondent and the mine operation staff (overlapping work schedules, collaborative and overlapping supervision, meeting and training), in order for the work to be done according to the terms of the MARCs, the respondent remains a contractor providing personnel who will carry out servicing of machinery at the coal mine, but not where the respondent itself engages in coal mining. I accept that an employer may be engaged in the industry, without performing coal mining: The definition in the Award includes “other work on a coal mining lease directly connected with the extraction, mining and processing of black coal”: cl 4.2(d) of the Award (emphasis added). As to whether a contractor is engaged in the industry is a matter of fact and degree. It depends on the nature of the contractor’s business, whether for example, it solely or predominantly conducted its business with coal mining clients and developed a particular expertise in that industry. It may be the case that a contractor will then fall within limb (a) despite being a service provider.
249 Accordingly, truly characterised, by reasons of the facts of this case, the respondent’s business is in the industry of providing (and servicing) its equipment. The respondent provides and maintains machinery in multiple industries. It is a separate legal entity from the mine operator. It was not contracted to operate the maintenance workshop at any coal mine.
250 Therefore, if it had been necessary, I would have found that the respondent was not an employer “engaged in the black coal mining industry” and accordingly the relevant employees would not fall within the definition of “eligible employee” under limb (a).
Issue 3: Whether any recovery of outstanding levies is subject to the limitation period prescribed in s 14(1)(d) of the Limitation Act?
251 Insofar as the respondent was at any time liable for the payment of a levy with respect to any of the relevant employees, the respondent contends that the applicant may only recover those amounts of the levy due and arising within six years from the commencement of this proceeding by operation of s 14(1)(d) of the Limitation Act, which is said to apply to this proceeding as a “surrogate federal law” pursuant to ss 64 and 79 of the Judiciary Act 1903 (Cth).
252 Unusually, the legislative scheme does not limit the time period by which an action may be commenced to recover unpaid levies. However, it does impose time limits regarding the commencement of proceedings with respect to civil penalties (namely, an applicant must apply for a civil penalty order within six years of the alleged contravention), by its incorporation of the time limits contained in s 82(2) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth): s 13A of the Collection Act and s 49A of the Administration Act. There is nothing in the extrinsic material to explain this lacuna. Unsurprisingly, the respondent then submits by operation of ss 64 and 79 of the Judiciary Act that the limitation period in the Limitation Act applies.
253 Section 64 of the Judiciary Act provides that:
64 Rights of parties
In any suit to which the Commonwealth or a State is a party, the rights of the 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.
254 The respondent also appears to rely on s 79, in combination with s 64 of the Judiciary Act, as a basis for the applicability of the Limitation Act but made no submission elucidating the basis for its reliance on the same.
255 Section 79(1) of the Judiciary Act provides that:
79 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
256 I accept the submission of the applicant that while s 79 may operate, in combination with s 64 to “pick up” limitation laws, the approach taken by the High Court provides a clear indication that s 64 and not s 79(1) controls the question as to whether or not a State limitation law applies to the Commonwealth (or an entity that is within the meaning of that term for the purposes of s 64).
257 In Maguire v Simpson [1977] HCA 63; 139 CLR 362 at 377, Gibbs J decided the matter on the basis that s 64 of the Judiciary Act deals specifically with the application of State laws to the Commonwealth in an action in which the Commonwealth is a party. The other five judges in Maguire v Simpson and all five judges in Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 29; 165 CLR 55 likewise considered that where the possible application of a State limitation law to the Commonwealth is in question, the resolution of that question was to be determined by considering s 64 and not s 79(1) of the Judiciary Act.
258 In both of those cases, the High Court approached the matter on the basis that s 64 applied directly by picking up a State limitation law and applying it to the Commonwealth (in the former case) or not at all (in the latter case). In neither case did the High Court consider that s 79 could separately make a State limitation law apply, as a surrogate federal law, to the Commonwealth: see Maguire v Simpson at 376 (per Gibbs J). Moreover, in Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [36] and Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at [38] (per Gleeson CJ and Gummow J) (fn [76]), it was considered by the High Court that s 79(1) could not operate because of the operation of s 64.
259 The result is that any State or Territory limitation law would not be picked up by s 79(1) in any action brought by application to enforce payment of the levy. However, s 64 of the Judiciary Act is controlling on this question.
260 The parties agree that the applicant was at least acting on behalf of the Commonwealth so as to comprise the “Commonwealth” within the meaning of s 64. That being so, the provision is then prima facie applicable. The question which then arises is whether the effect of this provision is that the limitation period prescribed under the Limitation Act applies to the applicant’s proceeding. For the reasons which follow I am of the view that this question is answered in the negative: The provisions of the Scheme preclude any operation of s 64 which would have this effect. Section 64 cannot be properly construed as intending to indirectly apply the provisions of a State law to circumstances where the direct application of the State law would be invalidated by operation of s 109 of the Constitution: Moorebank at 63 citing Dao v Australian Postal Commission [1987] HCA 13; 162 CLR 317 at 331–332.
261 Accordingly, I am of the view that the outstanding levies (including the additional levy) are not the subject of the limitation period prescribed in s 14(1)(d) of the Limitation Act.
262 Section 14 of the Limitation Act provides:
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—
(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed,
(b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty,
(c) a cause of action to enforce a recognizance,
(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.
…
(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.
(Emphasis added.)
263 In response to the respondent’s submission as to the applicability of the Limitation Act, the applicant contended, in summary form (and for these reasons which I accept):
(a) that the limitation period for recovery of monies under the Limitation Act does not apply to the recovery of the levy because the regime for the collection from employers of eligible employees of the levy “covers the field” by operation of the principles in Moorebank; and
(b) if the scheme does not cover the field, the limitation under s 14(1)(d) does not apply because
(i) the applicant is acting on behalf of the Crown in right of the Commonwealth (i.e. the Commonwealth executive); and
(ii) for the recovery of a tax,
within the meaning of the exception under s 10(3) of the Limitation Act.
Does the legislative scheme “cover the field” for the purpose of Hitachi’s limitation defence?
264 Consistent with the High Court’s reasoning in Moorebank, the extant legislative regime (which includes the Administration, Collection and Levy Acts) covers the field and the intrusion of the Limitation Act would significantly undermine this Scheme’s ability to collect and recover the levy and the additional levy: Moorebank at 66.
265 In Moorebank, the High Court considered an appeal arising from an action brought by the Deputy Commissioner of Taxation of the Commonwealth, in the Supreme Court of Queensland, for payment of an income tax debt and in particular whether the effect of s 64 of the Judiciary Act is to apply limitation periods imposed by the Limitation of Actions Act 1974 (Qld) to an action brought by the Deputy Commissioner of Taxation for recovery of income tax. The High Court held unanimously that, because the Federal income tax law “is complete upon its face” and “cover[s] the field”, the Limitation Act (Qld) did not apply: at 64 and 66.
266 There are marked similarities between the structure of the relevant legislative regimes in Moorebank and in this case. As part of their Honours’ reasoning, the High Court considered the essential provisions of the Income Tax Assessment Act 1936 (Cth): see at 65. The five provisions identified by the High Court correlate in general to certain provisions contained within the Collection Act. Under the Collection Act, the amount of levy or the amount of the additional levy under s 7 is “a debt due to the Commonwealth”: s 9(1). Any of either of these amounts unpaid “may be sued for and recovered [by the applicant or other person to whom the amount is payable]…in any court of competent jurisdiction”: s 9(2). The Collection Act stipulates the due date for payment: s 4. The applicant may extend the time for payment: s 6. If any due and payable levy remains unpaid, there is a regime by which an additional levy is payable and a formula for its calculation: s 7.
267 Further, the High Court identified aspects of the taxation scheme which would be undermined if there were the intrusion of the State limitation acts. For example, reference was made to s 206 of the Income Tax Assessment Act which authorised the Commissioner of Taxation “in any case [to] grant such extension of time for payment…as he considers the circumstances warrant”: at 66. The High Court recognised the incompatibility between the operation of this broad discretionary power and the operation of the Limitation Act (Qld) given, as it reasoned, this “power to grant an extension of time ‘in any case’ plainly extends to the case where tax has already become due and payable with the result that the right of action to recover the tax has already arisen or accrued”: at 66. Notably, the applicant has a like discretionary power to extend the time for the payment of the levy and the manner of payment by instalment, under s 6 of the Collection Act.
268 Whilst I note the submission of the respondent that the High Court was considering a particular review mechanism, it is my view that if the Limitation Act did apply it would intrude on the operation of the Scheme and similar inconsistencies to those identified by the High Court would occur. For example, if the applicant granted an extension of time for payment of the levy until after the expiry of the relevant limitation period, there would be a bar on recovery.
269 The respondent sought to distinguish the Income Tax Assessment Act from the Collection Act. The respondent submits that whereas the Income Tax Assessment Act was found to have a set of detailed extensive provisions, for which there were a range of aspects that produced inconsistency with the state limitation periods, the Collection Act does not share these characteristics. Rather, the levy components are “effectively confined to six sections” (ss 4–9 of the Collection Act) and the remainder of the provisions in the Collection Act “are ancillary administrative machinery type provisions which bear no question on the actual effect of the levy or how it’s to operate”. Accordingly, the respondent contends that it is incongruous for only six sections of an act to constitute an “exhaustive and comprehensive code with respect to the question of levy, such that it has the implied effect of repealing section 64 of the Judiciary Act”.
270 I accept the applicant’s responsive submission that because the Scheme is “a different scheme” to the Income Tax Assessment Act, it does not mean that it is not a scheme that Parliament intended to operate exclusively to cover the field. The simplicity of a scheme has not precluded courts from finding those schemes are nonetheless incompatible with limitation statues: see Whittaker & Child Support Registrar (No 2) [2012] FamCAFC 203, where the Moorebank principle was applied (at [93]–[97]) and for which special leave was refused: Whittaker v Child Support Registrar [2013] HCASL 39 (see at [4]).
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.
273 The respondent further contended that the existence and nature of the review mechanisms in Moorebank was directly inconsistent with the limitation period because it meant that the period could expire while a review or repeal was active (see at 67), and it was the particular review mechanism in that case, not that there was one generally, which was relevant to the High Court’s finding.
274 However, it is indisputable that the Scheme contains review and dispute mechanisms. This demonstrates that Parliament had turned its mind to what it was going to permit and not permit. In this regard, the applicant referred to s 8 of the Collection Act whereby a person may request in writing in relation to the remission of the additional levy or part thereof. Accordingly, as the applicant submitted, Parliament has elected when it will make provision for review within the terms of the Act and where otherwise it only permits for extensions of time. As the applicant identified, there are a number of other dispute provisions under the Administration Act: ss 39BC (approval for waiver agreements), 39D (the ability of the Fair Work Commission to deal with long service leave disputes), 39DA (the capacity of employees to apply to the Court for certain contraventions), 52C (the conferral of jurisdiction on the Federal Court and Federal Circuit and Family Court of Australia (Division 2) in relation to matters under the Administration and Collection Acts) of the Administration Act. Furthermore, here the Commonwealth had chosen to impose time limits with respect to some provisions in the Scheme: Those with respect to civil penalties, by its incorporation of the time limits under the Regulatory Powers Act: s 13A of the Collection Act, s 49A of the Administration Act.
275 I accept the applicant’s submission that it does not matter that the terms of a different act are incorporated as it still demonstrates that Parliament turned its mind to there being a statute of limitations in relation to the civil penalty provisions. This intention is consistent with its legislative history, as noted by the applicant, prior to 6 November 2017 and the commencement of the Regulatory Powers Standardisation Reform Act 2017 (Cth), the Administration Act had its own regime for civil penalties (including the same six-year limitation period as is currently found in s 82(2) of the Regulatory Powers Act). I accept the applicant’s explanation that the importation of the Regulatory Powers Act is reflective of the Commonwealth’s standardisation, for some legislation, of the scheme for recovery of civil penalties and applicable limitation periods: It did not reflect any change in Parliamentary intention.
276 For these reasons, the Moorebank principles apply and the Scheme relevantly “covers the field” and by virtue of s 109 of the Constitution, the Limitation Act will not be “picked up” because it would be inconsistent with a Federal law which is comprehensive and “covers the field”.
If the scheme does not cover the field, does the limitation at s 10(3) of the Limitation Act otherwise apply?
277 Given I have found in favour of the applicant’s argument that the Scheme covers the field, I do not need to go on to consider its alternative argument that even if the Limitation Act applies, its action falls within the exception under s 10(3) of the Limitation Act. However, for completeness I will deal briefly with this alternative argument.
278 The applicant contends that the levy it collects from the employers under the Collection Act is a “tax” collected by it when acting on behalf of the Crown in the right of the Commonwealth (i.e. the Commonwealth Executive), within the ambit of the exception under s 10(3) of the Limitation Act.
279 Section 10 of the Limitation Act provides:
(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.
(Emphasis added.)
280 Section 11 of the Limitation Act contains definitions which include a definition of the “Crown” which “includes 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.”
281 To aid the applicant’s submission that it comprises a “tax”, the applicant relies on Coal Mining Industry (Long Service Leave Funding) Corporation v Commissioner of Taxation [1999] FCA 249; 85 FCR 416 (Coal LSL v Cmmr Taxation). In that decision the Full Court determined that the constitutional source of power underpinning the Collection Act was the taxation power and that the collection of the levy was a delegation of the Commonwealth’s tax collection role to the applicant, at [5], [17], [19], [22], which are extracted as follows:
5. The legislation enacted in 1992 comprised the Coal Mining Industry (Long Service Leave Funding) Act 1992 (Cth) (the Funding Act), the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth) (the Collection Act) and the Coal Mining Industry (Long Service Leave) Payroll Levy Act 1992 (Cth) (the Levy Act). That legislation gives effect to the objectives described in the Second Reading Speech. Commonwealth Government involvement, through the use of a statutory corporation and, importantly, the funding of the scheme by the use of the Commonwealth's taxing power, is maintained; but there is substantial industry participation in the administration of the scheme, particularly through representation on the board of the Corporation of both employers and employees. The new scheme differs significantly from its predecessor in that the States no longer play a role in its administration, the scheme is to be fully funded and funding is by way of a payroll tax or levy, not an excise on coal produced.
…
17. It was submitted on behalf of the Corporation, and we agree, that for present purposes it is particularly important that the scheme is funded by the use of the taxing power of the Commonwealth and that the Corporation is given, by s 11 of the Collection Act, the functions on behalf of the Commonwealth of administering and recovering the tax. Indeed, in our view, the use of the taxing power and the delegation of the tax collecting function are powerful indications that the Corporation is performing functions of government. To delegate to the Corporation a tax collecting function is to confer upon it extraordinary authority, an authority to be exercised on behalf of the Commonwealth. No doubt these matters are not conclusive: see Australian Tape Manufacturers Association Ltd v Commonwealth (Blank Tapes case) (1993) 176 CLR 480 at 501. But, as Mason CJ and Brennan, Deane and Gaudron JJ said in Australian Tape Manufacturers at 503:
“In Australia, the fact that a levy is directed to be paid into the Consolidated Revenue Fund has been regarded as a conclusive indication that the levy is exacted for public purposes.”
…
19. The Corporation performs a government function because it collects a tax, administers a fund comprising amounts appropriated from the Consolidated Revenue Fund relating to the tax and makes payment out of the Fund pursuant to statute. All this is done in pursuance of government policy.
…
22. Further, the Second Reading Speech makes it plain that the purpose of the scheme (and, accordingly, the function of the Corporation) was not simply to protect private employers from some of the consequences of the long service leave arrangements established by the award. It was recognised that it was desirable that, on an actuarial basis, the liabilities of employers under the award be fully funded and that this could only be done by spreading the burden equitably among employers and by a process of compulsion. And, most importantly, it was accepted that this had to be done not for the protection or benefit of employers, but for the protection of the public interest in maintaining an industry which produced a commodity of particular importance to Australia’s export trade. That is what was seen to justify the use of the taxing power, necessarily available only for Commonwealth purposes, and the extraordinary delegation to the Corporation of the typically governmental function of collecting the levy. The degree of ministerial control over the affairs and activities of the Corporation and the circumstance that its accounts are to be audited by the Auditor-General reinforce, because they are consistent with, the proposition suggested by those matters: that the Corporation is a public authority. Industry participation through a board comprising representatives (appointed by the Minister) of employers and employees, whose powers are quite closely circumscribed, does not, in our view, require a contrary conclusion any more than did the rather more extensive participation described in the Fruit Marketing case. Nor, in our view, is it particularly significant that the direct beneficiaries of the fund administered by the Corporation are employers who have become liable to make payments under the Award in respect of long service leave. Considerably more important, in our view, is the public purpose actuating the establishment of the fund from which the payments to private employers are to be made. That purpose, in our opinion, was a public purpose; and the Corporation has been given extraordinary power and authority to perform a public purpose of government. The consequence is that the Corporation is a public authority for the purposes of s 23(d).
282 In response to the applicant’s submissions, the respondent submitted that Coal LSL v Cmmr Taxation was not about the question of whether or not the payroll levy was a tax, but concerned whether or not the applicant was a public authority. Accordingly, the respondent submits that the Full Court’s use of the nomenclature of tax in its reasons is not determinative in the present case and does not bind the Court. Further, the respondent submitted that the Scheme rested on the corporations power (as opposed to the taxation power) in the Constitution. The applicant conceded the Scheme might rely “in part” on the corporations power, but this does not necessarily mean to the exclusion of reliance on the taxation power.
283 The applicant, in reply, submitted that the ratio of Coal LSL v Cmmr Taxation includes the reasons for a decision and the building blocks upon which a decision is made. In this regard, the applicant referred to Idya Pty Ltd v Anastasiou [2008] NSWCA 102 at [28] (per Beazley JA, Mason P agreeing) where his Honour described the distinction between the ratio of a case, for which the Court will only depart from its previous decisions where the earlier decision was wrong, and obiter dicta, which the Court is not bound by but “are often treated as persuasive”. Accordingly, the applicant submitted that it is significant that in Coal LSL v Cmmr Taxation, the reason for concluding the applicant was a public authority was because it collected a tax.
284 I accept that the question in issue in that case was whether the applicant was a public authority, and the question as to whether the levy was a tax was not a specific issue that needed to be determined. Accordingly, I accept that the decision is only binding so far as it deals with the determination of whether the applicant was a public authority.
Whether the levy constitutes a “tax”?
285 As stated by Gleeson CJ in Luton v Lessels [2002] HCA 13; 210 CLR 333 at [10], in deciding whether an exaction of money or the imposition of some other financial obligation is a tax, involves an exercise in characterisation. Care must be taken to understand that the often-quoted words of Latham CJ in Matthews v Chicory Marketing Board (Vic) [1938] HCA 38; 60 CLR 263 at 276, were not relied upon to represent a definitive statement of the essence of a tax but directed to the facts of that case. In Chicory, his Honour described the levy as being 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…
286 However, as stated by Gaudron and Hayne JJ in Luton, at [49], whilst these features identified by Latham CJ are typical of a tax, their presence or absence is not determinative of whether legislation, or particular provisions of it, are characterised as a tax. This is clear from cases which have decided this issue since Chicory: Whilst not exhaustive, for example, in Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10; 176 CLR 480 at 501, the majority of the High Court held that the exaction of money need not be by a public authority to be a tax. Furthermore, the exaction of money need not be primarily for revenue raising purposes to be a tax. In Roy Morgan Research Pty Ltd v Commissioner of Taxation & Anor [2011] HCA 35; 244 CLR 97, a superannuation guarantee charge was found to be a tax even though it was found not to have been imposed primarily for revenue raising purposes: at [16], [48] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [62] (per Heydon J).
287 The applicant contends that the levy comprises a tax by the adoption of the features identified by Gordon J in an extra-curial paper (Gordon J, “The Commonwealth’s taxing power and its limits – Are we there yet?” (2013) 36(3) Melbourne University Law Review 1037–1063). Justice Gordon examined various authorities, and at pages 1041 to 1044 identified distinguishing features from those authorities relevant to determining whether an exaction of money or the imposition of some other financial obligation is a tax (for which when applied to this case would lead to the conclusion that the levy comprised a tax) which the applicant summarised as follows:
(a) there is a public purpose to it;
(b) the receipt of funds into consolidated revenue, whilst not conclusive, points to a public purpose;
(c) a legislative objective of the raising of revenue is not necessarily a determinant;
(d) it is not a charge or payment for services rendered; and
(e) the imposition of the tax must not be arbitrary and must be imposed by reference to some ascertainable criteria.
288 I am of the view that the levy comprises a tax for the reasons identified by the applicant. I would note that I do not accept that the additional levy is a tax by reason of it being a penalty for the reasons set out later in these reasons at [341]–[354].
289 First, it is clear from the nature of the Scheme that it serves public purposes. As identified by the Full Court in Coal LSL v Cmmr Taxation, the Scheme administers a fund which was initially set up after the coal miners’ strike in 1949 to ensure that there was a “portable” long service leave entitlement for employees who might be employed successively by several different employers in the industry: at [2]. If such a scheme was not available, a consequence would then be that, when an employee ultimately became entitled to take that leave, the full financial liability would fall upon that particular employer even if the employee had only worked for them for a short period. As stated by the Full Court, at [2]:
…Unless means were provided of spreading the burden equitably among employers in the industry, at least two consequences might follow. Some collieries might be subjected to financial burdens which they were unable to meet; and collieries would be discouraged from employing experienced miners.
290 In addition, the Full Court opined that the purpose of the Scheme “was not simply to protect private employers from some of the consequences of the long service leave arrangements established by the award” but was “for the protection of the public interest in maintaining an industry which produced a commodity of particular importance to Australia’s export trade”: at [22]. The Full Court did not consider it “particularly significant” that the direct beneficiaries of the fund were private employers, rather that purpose was a “public purpose” and “the Corporation has been given extraordinary power and authority to perform a public purpose of government”. Those functions included, on behalf of the Commonwealth, administering and recovering a tax: at [17].
291 The public purpose of the Scheme may also be gleaned from the history of the 1992 reforms which replaced the previous long service leave scheme in the black coal mining industry. The previous scheme was funded by way of an excise on the production of black coal, paid into consolidated revenue, for which amounts equal to these collections were appropriated for payment into a trust fund which reimbursed the relevant States which in turn reimbursed participating employers (who had paid long service leave payments). A key purpose of the reform and creation of the current scheme was to address the accrued unfunded liability for untaken long service leave estimated at $250.2 million (as at 30 June 1990). As stated in the Explanatory Memorandum 1992:
… the objective of the reforms is to ensure that the currently unfunded liability for long service leave is accounted for without imposing an unreasonable burden on the industry.
292 Furthermore, as identified by Emmett J, the primary judge whose decision was the subject of the appeal in Coal LSL v Cmmr Taxation, when quoting from the Second Reading Speech for the 1992 Bill in Coal Mining Industry (Long Service Leave Funding) Corporation v Commissioner of Taxation (Cth) (1998) 85 FCR 401 at 404, the public purposes of the Scheme included the attraction and retention of labour, including removing disincentives for employers to employ people with previous employment in the industry (such that the employer would have had to bear the additional liability for long service leave) and to provide protection to employees against employers going insolvent.
293 It is also clear that the Scheme’s purpose is to ensure parity of entitlement to long service leave by employees who, whilst employed in the industry for lengthy periods, may be employed by numerous employers. Its purpose is also to ensure that the burden of risk arising from that entitlement is spread across employers within the industry to ensure its availability and the financial viability of employers.
294 In Luton, the High Court distinguished Tape Manufacturers on the basis that the scheme was “no more than a mechanism for the enforcement of a pre-existing private liability” (at [14] per Gleeson CJ): The amounts payable under the relevant scheme were to be paid to the Commonwealth by a particular debtor in relation to a particular child or children, and an equivalent amount was then to be paid to the particular person entitled to that amount of child support. Relevantly, Gleeson CJ stated (at [12]):
What constitutes a sufficient public purpose may be a matter of contention, as in Australian Tape Manufacturers Association Ltd v Commonwealth. Quick and Garran, writing in 1901, said:
“Taxation may be now defined as any exaction of money or revenue, by the authority of a State, from its subjects or citizens and others within its jurisdiction, for the purpose of defraying the cost of government, promoting the common welfare, and defending it against aggression from without.”
That, perhaps, illustrates the risks of definition. Depending upon what is meant by “promoting the common welfare”, it may be difficult to reconcile with the decision in the Australian Tape Manufacturers Association case. Directly or indirectly, all legislation is aimed at promoting the common welfare. The legislative powers of the Parliament are to be exercised for the peace, order and good government of the Commonwealth. A law which imposes on one person an obligation to pay money to another, or to the government, will, by hypothesis, be enacted in pursuance of some policy or purpose which is regarded by the Parliament as in the public interest. The concept of “public purposes” in the present context is narrower than that.
(Footnotes omitted.)
295 The respondent relies on the above paragraph to submit that the concept of a public purpose is narrower than just the public interest, and as such the Scheme does not answer the descriptions of a public purpose.
296 For the reasons identified by the Full Court in Coal LSL v Cmmr Taxation, and as is plain from a review of the Scheme, even if the narrow definition of public purpose as opposed to public interest is embraced, the Scheme falls within this description.
297 Secondly, the levy is a debt that is due to the Commonwealth: s 9 of the Collection Act. When collected that levy is placed into the Consolidated Revenue Fund, and appropriations are then made out of the Consolidated Revenue Fund to the Fund established by the Administration Act: s 36 of the Administration Act. As Parliament explained in the Explanatory Memorandum 1992, when commenting on draft clause 3 (which is in very similar terms to the current s 3 of the Administration Act, the object provision): “The scheme is to be funded by a levy on payroll of participating employers. This levy is to be collected by or on behalf of the Corporation and paid into the Consolidated Revenue Fund. Levy Monies are to be appropriated from the Consolidated Revenue and paid into the Fund”.
298 Whilst I accept the respondent’s submission that the fact that the proceeds of an exaction are paid into the Consolidated Revenue Fund (as it is here) is not decisive in determining whether it is a tax (see Luton at [13] (per Gleeson CJ); [55] (per Gaudron and Hayne JJ)), it is a factor which I consider is in favour of the levy constituting a tax. The payment of the levy into the Consolidated Revenue Fund is an indication that it has been exacted for public purposes: Tape Manufacturers at 503.
299 Thirdly, the existence of a revenue raising purpose is not necessarily determinative. The respondent contends the levy is not a tax because the Scheme lacks a revenue raising purpose. On the respondent’s submission, the Scheme involves inter partes payment obligations, facilitating the prepayment of an employer’s share of a contingent long service leave liability to substitute entitlements that would otherwise apply under an award or a state long service leave act. The respondent submits that the absence of a revenue raising purpose (which is relevant for whether it is imposed for a public purpose) weighs against characterising the levy as a tax and although it is not determinative it “will often be significant”: Luton at [13] citing Airservices Australia v Canadian Airlines [1999] HCA 62; 202 CLR 133 at [90]–[91] (per Gleeson CJ and Kirby J); see also Luton at [16] (per Gleeson CJ), [116]–[117] (per Kirby J) [177] (per Callinan J).
300 As identified in Airservices Australia at [90]–[91], and referred to with approval in Luton at [13], the objective of raising revenue for the government is not a universal determinant as to whether an exaction is a tax or not, but I accept its absence will often be significant. As described by Gordon J in her extra-curial paper, referred to at [287] above, “the importance of a legislative objective to raise revenue is not without some controversy”: at 1042. This position is consistent with previous High Court authority: For instance, a training guarantee charge, despite not having a revenue raising objective, was characterised as a tax: Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12; 176 CLR 555 at 568–569 and 572.
301 Furthermore, by illustration, paragraph [13] of Luton was cited with approval by the plurality in Roy Morgan (where the High Court concluded that the superannuation guarantee charge constituted a tax) at [16]:
It should be added that the discernment of a legislative objective to raise revenue is not necessarily a determinant that the exaction in question bears the character of taxation. For example, the objective of the imposition of a customs tariff at a high level may be to protect domestic industry by providing a disincentive to the importation of competing products. The point was made by Kitto J in Fairfax v Federal Commissioner of Taxation with reference to the statement in United States v Sanchez:
“It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. Sonzinsky v United States. The principle applies even though the revenue obtained is obviously negligible, Sonzinsky v United States, or the revenue purpose of the tax may be secondary, J W Hampton [Jr] & Co v United States. Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate”.
(Footnotes omitted.)
302 In a similar way, the plurality in Roy Morgan observed at [48]–[49]:
48. The Court in Northern Suburbs also emphasised a point made earlier in these reasons: that the raising of revenue is secondary to the attainment of some other legislative object is no reason for treating an impost otherwise than as a tax. As Latham CJ pointed out in Radio Corporation Pty Ltd v The Commonwealth, this is so even if the legislation is designed for the purpose of carrying out a policy affecting matters not directly within the legislative competence of the Parliament of the Commonwealth.
49. The submission by the appellant that the Charge is invalid because the legislation confers upon employees a “private and direct benefit” cannot be accepted. Nor does this “linkage” indicate that the Charge is not imposed by the Parliament for “public purposes”. It is settled that the imposition of a tax for the benefit of the Consolidated Revenue Fund is made for public purposes. That is not to say that the receipt of funds into the Consolidated Revenue Fund conclusively establishes their character as the proceeds of a tax. But it does establish in the present case that the Charge is imposed for “public purposes” and thus, if other necessary criteria are met, as they are in this case, the Charge is a valid tax.
303 Accordingly, in Roy Morgan the High Court found that the lack of a revenue raising purpose was not fatal to the finding that the charge had a public purpose (for which it was significant but not determinative that the funds went into consolidated revenue).
304 Furthermore, it is worth pausing to consider the respondent’s description of the levy being “inter partes”. 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.
305 Fourthly, I do not accept the respondent’s contention that the mechanics of quantifying the levy produce arbitrary results which would go against characterising the levy as a tax, for the reasons identified in Issue 1 above at [190]–[195].
306 As to the levy’s purported arbitrary effect, the respondent referred to its earlier submissions that employees may fall in and out of the black coal mining industry such that eligibility could change day by day, and submitted that the Collection Act does not allow for that “degree of nuance”. Section 4 of the Collection Act provides that the levy is referable to eligible wages payable “during a month”. It follows, the respondent contends, that even if an employee is an eligible employee for a day or even an hour during a whole month, the construction on the face of the text of ss 3B and 4 of the Collection Act is that levy be paid for the hours worked in the whole month, rather than the period of time one was an eligible employee. According to the respondent, this outcome results in the levy being an arbitrary exaction, as the amount paid may exceed the number of hours actually worked by an eligible employee.
307 In this regard, the respondent refers to Gordon J’s extra curial paper referred to above at [287], at 1060–1061:
The Commonwealth’s taxing power does not permit the Commonwealth to impose ‘arbitrary exactions’. In this context, I am not dealing with contestable and incontestable taxes. Rather, to satisfy the requirement that the exaction not be arbitrary, not only must it ‘be possible to point to the criteria by which the Parliament imposes the liability to pay the tax’, but also, arguably, the exaction must have ‘a sufficiently general application’.
(Footnotes omitted).
308 The respondent thus contends that the Scheme operates in an “arbitrary and capricious” way where there’s no rational relationship between the amount levied and the qualifying service actually incurred under the scheme.
309 In response, I am of the view, first, that the respondent has overstated the potential result of the Scheme and it is not arbitrary nor does it have a capricious effect for the reasons identified above at [190]–[194]. Further, it is clear from the terms of s 43 (and sub-s (5)) of the Administration Act, as submitted by the applicant, that this section “makes clear that the setting of the levy is subject to an actuarial process”. In addition, s 43 of the Administration Act provides a mechanism by which reimbursements can be made to employers of eligible employees and the rate of the levy can, and has, changed over time (as located in the Levy Regulations).
310 Fifthly, I do not accept the respondent’s argument that the levy is akin to a “fee for service”. For a charge to be considered a fee for service, it must be “exacted for particular identified services provided or rendered individually to, or at the request or direction of, the particular person required to make the payment”: see Air Caledonie International v Commonwealth [1988] HCA 61; 165 CLR 462 at 470 (per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ). There must also be a sufficient relationship between the liability to pay the charge and the provision of services by the ultimate expenditure of the money collected: Northern Suburbs at 568 (per Mason CJ, Deane, Toohey and Gaudron JJ).
311 The respondent has not identified what the “service” provided is, or that there is a sufficient relationship between the liability to pay the charge and the provision of services by the ultimate expenditure of the money collected. As submitted by the applicant, 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. In this respect, the applicant relied upon an example:
A simple example can suffice. Hitachi may engage an employee today who already has qualifying service in the industry and then completes his or her aggregate period of service of 8 years while employed with Hitachi. In that instance, if Hitachi today pays that employee for the long service leave, it will be reimbursed irrespective of the fact that it never made any contribution or only made an insignificant contribution to the fund. Equally, the converse also proves the point. Hitachi may have made a contribution in respect of an employee for over 7 years of that person’s employment and yet when the employee becomes entitled to long service leave, that employee may be engaged with a different employer, in respect of which entitlement it obtains no reimbursement for the levy it contributed the fund for 7 years of that person’s service. That is because the trigger for reimbursement is the taking of the leave, and that payment for the leave by the current employer (who is the one that is reimbursed). The point is even more profound once it is accepted that employers may leave or enter the industry with or without any reimbursement. Seen in this way, the levy is not a fee for service, it is a tax imposed on those who decide to engage employees in the black coal mining industry, to promote the public purpose underlying the scheme. This makes it plain that the levy is imposed as an exaction to generate revenue for the public purpose of funding the long service leave of employees, and where applicable, to reimburse those employers who foot the cost of an actual payment to a relevant employee.
312 For these reasons, it is my view that the levy comprises a tax.
Whether the applicant’s proceedings constitute “an action by the Crown”
313 In order for the applicant to be exempt from the Limitation Act (if it applied), under s 10(3), requires not only establishing that the levy was a tax but also that these proceedings constitute “an action by the Crown” (which includes an action by a person acting “on behalf of the Crown”: s 10(2)).
314 The respondent submits that the applicant is not acting on behalf of the Crown within the meaning of s 10(2). For the following reasons, if I had been required to determine this issue, I would reject the respondent’s submissions.
315 The determination of whether the applicant’s action falls within the exception to the operation of the Limitation Act under s 10(3) involves a consideration of the meaning of the words in the empowering provision, being s 11 of the Collection Act, in its proper statutory context and given its proper performance when read as whole: Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 at [31] per French CJ, Hayne, Kiefel and Nettle JJ, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]–[70] (per McHugh, Gummow, Kirby and Hayne JJ).
316 The parties each relied upon numerous High Court authorities as to what the “Commonwealth”, the “Crown” and “acting on behalf of the Crown” mean: Hocking v Director-General of the National Archives of Australia [2020] HCA 19; 271 CLR 1; The Commonwealth v Rhind [1966] HCA 83; 119 CLR 584; Commonwealth v Mewett [1997] HCA 29; 191 CLR 471; Sue v Hill [1999] HCA 30; 199 CLR 462; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34; 145 CLR 330; Launceston Corporation v Hydro-Electric Commission [1959] HCA 12; 100 CLR 654 (City of Launceston); Maguire v Simpson.
317 These authorities each describe the various meanings attributed to these terms within constitutional theory and case law over time. The respondent relied heavily on Sue v Hill and City of Launceston. However, these authorities do no more than describe the variety of meanings which may apply. For example, as acknowledged by the respondent, when referring to Sue v Hill at [83]–[94], the High Court recognised the various meanings attributed to the Crown in constitutional theory: The Crown is identified, inter alia, as “the body politic” (at [84]), the “international personality of a body politic” (at [85]) and the “executive” government (distinct from the legislature): at [87]. Further, as demonstrated in the reasoning in City of Launceston, the determination that the statutory authority was not a servant of the Crown arose from a consideration of the body’s governing Act as a whole (at 660). Further, the determination of whether a statutory corporation or other instrumentality of the Crown or the Commonwealth is entitled to “Crown immunity”, and that in order to do so it must be an agent of the Crown, is not of assistance in the construction of s 10(3) of the Limitation Act.
318 In any event, as submitted by the applicant, the facts of City of Launceston were distinguishable. There, the question was whether the Hydro-Electricity Commission was exempt from liability for rent because it occupied the land on behalf of her Majesty, that is when it entered into the relevant lease and occupied it, it was doing so on behalf of her Majesty (at 660). There, the High Court reasoned that the Hydro-Electricity Commission was entering the lease in its own capacity.
319 For the reasons which follow, I accept when one considers s 11 of the Collection Act in its legislative context it was not collecting the levy in its own capacity.
Functions, powers and features of the applicant
320 The applicant is a body corporate: s 6(2)(a) of the Administration Act. It has a Board of Directors, who are to manage its affairs and the Fund: ss 9 and 10 of the Administration Act.
321 It is subject to the requirements in the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) (excepting s 59, dealing with investments by corporate Commonwealth entities: s 39 of the Administration Act).
322 As part of its functions, the applicant is required to provide certain reports and information to the responsible Minister (being presently the Minister for Industrial Relations), including a report under s 46 of the PGPA Act (s 9(3) of the Collection Act), keep the Minister informed of levy collected (s 7 of the Administration Act) and notify and make recommendations to the Minister about the sufficiency of the Fund: s 43(5)–(6) of the Administration Act.
323 Under s 7 of the Administration Act, its functions are described to comprise the following:
(a) to establish and maintain the Fund; and
(b) to make payments into and out of the Fund, and invest the Fund, in accordance with this Act and the Payroll Levy Collection Act; and
(c) to advise the Minister as to the rates of payroll levy that should be imposed on employers; and
(d) to monitor payments of the payroll levy and keep the Minister informed of any failure by an employer to pay the payroll levy; and
(da) to maintain records relating to:
(i) the employment of eligible employees;
(ii) the qualifying service completed by, and the long service leave entitlements of, eligible employees; and
(iii) employers of eligible employees; and
(iv) amounts that are, or may become, payable to employers under Part 7; and
(e) to advise the Minister generally on the operation of this Act, the Payroll Levy Act and the Payroll Levy Collection Act; and
(f) such other functions as are conferred on the Corporation by the Payroll Levy Collection Act.
324 In addition, by operation of s 11 of the Collection Act, the applicant has the following additional obligations:
(1) The Corporation has the following functions on behalf of the Commonwealth under this Act:
(a) to receive returns made, or financial statements or certificates given, under this Act; and
(b) to receive payments of levy made under this Act; and
(c) to receive payments of additional levy made under section 7; and
(d) to sue for and recover amounts of levy and amounts of additional levy that have not been paid.
325 The applicant is granted certain powers under the Administration Act (s 8), being as follows:
(1) The Corporation has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions and, in particular, may:
(a) acquire, hold and dispose of real or personal property; and
(b) enter into contracts; and
(c) occupy, use and control any land or building owned or leased by the Commonwealth and made available for the purposes of the Corporation; and
(d) appoint agents and attorneys; and
(e) do anything incidental to any of its powers.
326 The applicant may sue for an amount of levy or additional levy pursuant to s 9(2) of the Collection Act, which provides:
(2) An amount of levy, or an amount of additional levy under section 7, that is payable but has not been paid may be sued for and recovered by the Corporation or by the other person (if any) to whom the amount is payable, as the case may be, in any court of competent jurisdiction.
327 Payments which may be made out of the Fund by the applicant are restricted to payments pursuant to the following provisions of the Administration Act:
(a) section 41 (Application of the Fund);
(b) section 44 (Reimbursement for payments relating to long service leave);
(c) section 47 (Reimbursement of overpayment of payroll levy);
(d) section 48 (Payments to employees if employer insolvent etc.); and
(e) section 51 (Expenses of the Corporation)
and the following provisions of the Collection Act:
(f) section 10B (Payment of auditor fees); and
(g) section 13(7) (Power to obtain information and evidence).
328 No other application to make payments out of the Fund is permitted under the Scheme.
329 The applicant’s Board may determine a matter of fact when a question arises as to whether an amount is payable to a person out of the Fund: s 49 of the Administration Act.
330 The applicant has investigatory powers to assist with compliance with the Scheme. Those powers are primarily to require the production of documents and information: s 52A of the Administration Act. It may also enter into an agreement with the Commissioner of Taxation to enable the entry upon premises and inspection of books (s 12 of the Collection Act), and to obtain information and evidence: s 13 of the Collection Act.
Consideration of the legislative scheme
331 As submitted by the applicant, in exercising its power to sue under s 9(2) of the Collection Act, the applicant is acting “on behalf of” the Commonwealth because it has a statutory function to collect the levy owed to the Commonwealth: s 11(1) of the Collection Act. A debt owed to “the Commonwealth” is one owed to the Commonwealth executive, which is in effect the “Crown”: Hocking at [74]–[75] (Kiefel CJ, Bell, Gageler and Keane JJ) citing with approval Rhind at 599; Jacobsen v Rogers [1995] HCA 6; 182 CLR 572 at 585; The Commonwealth v Western Australia [1999] HCA 5 196 CLR 392 at [31]–[36] (per Gleeson CJ and Gaudron J), [105]–[109] (per Gummow J); Sue v Hill at [90].
332 When the applicant sues for recovery, it may also seek civil penalties for breach of the Administration Act and Collection Act and is “on behalf of the Commonwealth” an “authorised applicant” for that purpose: s 49A(2) of the Administration Act, s 13A(2) of the Collection Act.
333 The levy and additional levy amounts required to be paid, being “debt[s] due to the Commonwealth” (s 9(1) of the Collection Act), are accordingly, as the applicant submits, “revenues or monies raised or received by the Executive Government of the Commonwealth” for the purposes of s 81 of the Constitution. The monies are accordingly paid into the Consolidated Revenue Fund. Monies are then appropriated out of the Consolidated Revenue Fund to the Fund established under s 40 of the Administration Act.
334 It is in this context, and is the clear purpose of the provisions (see for example the applicant’s functions at s 7 of the Administration Act and s 11 of the Collection Act, and the restrictions on the applicant to make payments out of the fund at ss 10B, 13(7) of the Collection Act and ss 41, 44, 47, 48 and 51 of the Administration Act), that the words “the Commonwealth” in s 11 of the Collection Act mean the Executive of the Commonwealth. As referred to above, the phrase “the Commonwealth” is capable of various meanings, corresponding to the several senses in which it is used in the Constitution: see Hocking at [74] (per Kiefel CJ, Bell, Gageler and Keane JJ), at [214]–[215] (per Edelman J). Here, by reason of the monies being raised or received by the Executive of the Commonwealth, the relevant meaning is that provided under s 81 of the Constitution.
335 The Limitation Act provides that the statute binds the Crown, and also provides an exclusion from the limitation periods in any “action by the Crown … for the recovery of a tax”: s 10(3). The “Crown” includes the “Crown in all its other capacities”: s 11 of the Limitation Act. This definition must include the “Crown in right of the Commonwealth”.
336 The Crown “in right of the Commonwealth”, when bringing an action for recovery of a tax, uses the executive power of the Commonwealth which is functionally exercised by the Executive Government of the Commonwealth: see Hocking at [75], [213]. As noted in Mewett at 498 (per Dawson J): “To sue the Commonwealth for such a wrong is to sue it in its executive capacity, that is to say, as the Crown in which the executive power of the Commonwealth is vested by s 61 of the Constitution”.
337 By virtue of s 11(1)(d) of the Collection Act, the applicant 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”.
338 Authorities that deal with whether a statutory corporation or other instrumentality of the Crown/Commonwealth is entitled to “Crown immunity”, and in order to do so must be an agent of the Crown, are irrelevant to the analysis. That question does not arise in the construction of s 10(3) of the Limitation Act.
339 The respondent contended that, based on the authorities, there is “no conceptual distinction” between a Crown agent or emanation and the Crown itself. In this regard, the respondent relies on Emmett J’s approach in Coal Mining Industry (Long Service Leave Funding) Corporation v Commissioner of Taxation (Cth) (1998) 85 FCR 401 at 414–415. At 415, his Honour stated:
…funded by the contribution from employers, the Corporation should not be characterised as an agent or emanation of the Crown so as to be entitled for Crown immunity.
340 I accept the applicant’s submission that this aspect of Emmett J’s decision dealing with Crown immunity is of limited utility. This judgment was overturned on appeal, albeit on the separate “public authority” point (at [22]), with the Full Court not needing to deal with the Crown immunity question: at [23]. The question of whether the applicant is an agent of the Crown (generally speaking) and entitled to Crown immunity (under the doctrine from Commonwealth v Cigamatic Pty Ltd (in liq) [1962] HCA 40; 108 CLR 372) is very different to the question of whether the applicant is a person “acting on behalf of the Crown” for the purposes of s 10(2) of the Limitation Act.
Is the additional levy a penalty for the purposes of s 18 of the Limitation Act?
341 Finally, the respondent contended at hearing that the “additional levy” (payable where the levy remains unpaid pursuant to s 7 of the Collection Act) constitutes a “penalty” within the meaning of s 18 of the Limitation Act, and therefore a two-year limitation runs from the date when the action first accrued arises.
342 Section 18 of the Limitation Act provides:
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.
(Emphasis in original.)
343 For s 18 to apply, two limbs require satisfaction: whether the additional levy constitutes a “penalty” and secondly whether the Commonwealth law constitutes an “enactment”.
344 For the reasons which follow, I am of the view that the Collection Act is not “an enactment” within the meaning of s 18. Accordingly, there is no need for me to determine the question of whether it constitutes a penalty.
345 Consideration was given to whether a Federal law comprised an “enactment” within the meaning of s 18(1) of the Limitation Act in Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Limited [2012] FCAFC 193; 209 FCR 428 at [55]–[61] per North and Flick JJ. See also Guss v Deputy Commissioner of Taxation [2015] FCA 841; 238 FCR 509 at [123] per Beach J which discussed the meaning of the word “enactment” in the Victorian limitation act. In FWO v Toyota Material Handling, North and Flick JJ determined, with reservation, for three reasons that “enactment” when used in s 18(1) is confined to an “enactment” passed by the Parliament of New South Wales (at [55]–[61]): 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. I embrace the reasoning of the Full Court and contrary to the submission of the respondent do not find that the circumstances are distinguishable.
346 The respondent submitted that the present case is distinguishable because there were other aspects of the Federal Act applicable in that case which were incongruous with the State limitation period, including that that Act had its own limitation periods for comparable contraventions. However, as can be seen from the above reasons, in the present case the Commonwealth has turned its mind to time limits for some aspects of the Scheme (e.g. by s 49A of the Administration Act, s 13A of the Collection Act and s 82 of the Regulatory Powers Act), giving rise to a presumed Commonwealth legislative intent that no limitation as to time was considered appropriate.
347 The respondent further contended that the finding in FWO v Toyota Material Handling is inconsistent with the majority’s holding in DTR Securities Pty Ltd v Deputy Commissioner of Taxation (Cth) (1987) 8 NSWLR 204 but without further elucidation. There was no specific consideration of the meaning of “enactment” in DTR Securities, the central issue was whether the “additional tax” constituted a penalty within the meaning of s 18.
348 Finally, the respondent submitted, that the Full Court’s decision in FWO v Toyota Material Handling did not accord with the “more modern” High Court authority when dealing with the general terms in State enactments, relying on Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559 where Gleeson CJ, Gaudron and Gummow JJ made observations at [68] regarding whether the reference to “court” was limited to a State court and at [140]–[142] where McHugh J referred to Thomas v Ducret (1984) 153 CLR 506 as to the meaning of “Court”. I do not accept that the High Court’s consideration of these questions in a different context renders unsound the reasoning of the Full Court in FWO v Toyota Material Handling.
349 Secondly, there is a question as to whether the additional levy sought by the respondent (if my reasoning is otherwise incorrect regarding the legislation covering the field and the additional levy constituting a tax) amounts to a “penalty”.
350 Section 7 of the Collection Act provides:
7 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:
(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.
(Emphasis in original.)
351 The additional levy is described at s 7 of the Collection Act as an amount payable “by way of penalty”. However, the applicant submitted that when regard is had to the substance of s 7, what is in fact being required to be paid is in the nature of interest – that is, an interest payment on unpaid levy which is 2 percentage points above the “maximum indicator interest rate” as defined at s 7(2). Such an amount is broadly consistent with what a court would ordinarily require an unsuccessful party to pay by way of interest. Seen in this light, the purpose of the additional levy is not to penalise the non-payer, but rather to ensure that appropriate interest amounts are paid on that levy which has not been paid.
352 In this regard, reliance was placed by the applicant on the decision of Basten JA in State Insurance Regulatory Authority v Abdul-Rahman [2016] NSWCA 210; 93 NSWLR 21, in which his Honour assessed the meaning of “penalty” under the Limitation Act and, in the discussion from [38]–[58], ultimately concluded at [58], that there was a penalty where there was “recovery of an arbitrary amount of twice the premium for failure to maintain a policy of insurance” (emphasis added), said by the applicant to be different from the circumstances here. His Honour’s reasoning is instructive as it considers those features supportive of the provision constituting a penalty and the countervailing features.
353 If it were necessary for me to determine whether the additional levy constituted a penalty, I would make a finding in the affirmative, relying on the reasoning in Abdul-Rahman. First, whilst not determinative, the additional levy is described as being payable “by way of penalty”. However, this description supports the second reason. Secondly, it is clear that the additional levy comprises interest on the levy at a penal rate. Two percentage points above the maximum indicator interest rate of that day reveals the same and why, contrary to the applicant’s submissions, the additional levy cannot be described as being akin to “interest”. Thirdly, it is clear that the intent of the additional levy is to have a deterrent or punitive effect. It cannot be said that it is merely compensatory for late payment, as suggested by the applicant.
354 Lastly, I would note, though it was not argued before me, that it does appear arguable that whilst the additional levy would be characterised as a penalty, it nonetheless could arguably fall within the description of “interest on a tax” as captured by s 10(3) of the Limitation Act. Given I am not required to decide this issue, I did not seek further submissions from the parties in this regard.
355 For the reasons given above, I consider that Messrs Benjamin Garland, Brenton Gee, Brady Stair and Graeme Cooper are and were (as the case may be) “eligible employees” within the meaning of s 4(b) of the Administration Act, namely they were each an employee who is or was during the relevant period employed in the black coal mining industry, whose duties are or were carried out at or about a place where black coal is mined and are or were directly connected with the day to day operation of a black coal mine.
356 It is my view that the applicant’s proceeding is not covered by the Limitation Act.
357 I ask that the parties confer and provide short minutes as to the appropriate orders to give effect to these reasons.
358 Lastly, the issue regarding penalty remains to be determined. I would ask that the parties confer regarding a timetable for preparation regarding the same and the matter be adjourned until 28 February 2023 for consideration of the orders to be made and the next steps in this matter.
I certify that the preceding three hundred and fifty-eight (358) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper. |
