Federal Court of Australia

Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2023] FCA 1515

ORDERS

THE COURT ORDERS THAT:

1.    The costs of the proceeding to date be reserved.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    The question in this case is whether shotfirers who work for the Applicant (‘Orica’) at open cut black coal mines in New South Wales are ‘eligible employees’ within the meaning of s 4(1) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (‘the Administration Act’). In open cut black coal mining , shotfiring is a collection of activities by which a black coal seam is exposed by the detonation in holes in the ground of high-powered explosives (usually, but not always, ammonium nitrate). Although it is convenient to refer to the personnel involved in this activity as shotfirers there are, in fact, several roles involved in the process which leads to the firing of the ‘shot’. I will refer to all the employees engaged in these activities as ‘shotfirers’ although strictly only the individual who presses the button is the shotfirer.

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

3    The black coal mining industry has, over a long period, been the subject of industrial disputation and complex regulation. The fronts over which this has ranged have included matters of safety and the benefits due to those whose work results in the extraction of the coal. Industrial instruments of various descriptions have frequently been jurisdictionally delimited by the concept of the ‘coal mining industry’ or more recently the ‘black coal mining industry’.

4    In 1949 there was a period of intense industrial disharmony which culminated in the great coal miners’ strike of that year. After the declaration of a national emergency and the passage of the National Emergency (Coal Strike) Act 1949 (Cth), the strike was eventually broken when the Chifley government sent in the army to operate the coal mines. Following the cessation of hostilities those working in the black coal mining industry won from those operating the coal mines a portable long service leave benefit which operated by reference to the length of service in the black coal mining industry rather than the length of service with an employer. It was and is a generous scheme.

5    This scheme has been through several iterations. Between 1949 and 1992 it was regulated under various industrial instruments and funded by an excise imposed by the Commonwealth on the production of coal. In 1992 this source of funding was replaced by a payroll tax imposed on, loosely speaking, employers in the black coal mining industry. At the same time the opportunity was taken to regulate the benefit using the taxation power under s 51(ii) of the Constitution, thereby avoiding the coverage pitfalls inherent in the use of the s 51(xxxv) power to legislate with respect to the conciliation and arbitration of industrial disputes extending beyond the limits of any one State. Following this development, the reach of the benefit was much greater than the reach of the Commonwealth’s power to regulate the industrial affairs of the industry in which the benefit was conferred.

6    In 2006 the Commonwealth’s ability to regulate the black coal mining industry under the corporations power in s 51(xx) of the Constitution caught up with its ability to impose a payroll tax on that industry (and thereby provide the long service leave benefit). In 2010 this resulted, for the first time, in a single instrument which regulated the industrial affairs of the black coal mining industry. This occurred when the Australian Industrial Relations Commission made the Black Coal Mining Industry Award 2010 (‘the Award’). I will call the Commission and its successor ‘the Commission’. At this point the legislation providing for the payroll tax was dovetailed with the Award so that both operated by reference to the black coal mining industry. For the first time the Commission introduced a definition of ‘black coal mining industry’.

7    There has been intermittent litigation about the long service leave benefit which appears to have increased after the Commission’s decision to define the industry in the face of earlier decisions which had described the industry as not being susceptible to precise definition. Because the benefit is funded by means of a tax on employers it has engendered in those from whom it is collected an ambition so far as is possible to reduce their liability to its exaction. This has brought the tax lawyer’s eye to bear on the formerly amorphous concept of the black coal mining industry and this has resulted, in turn, in several bouts of litigation between the regulator of the scheme (i.e. the Respondent) and employers anxious not to pay the payroll tax if possible.

8    Largely these debates have concerned the position of third-party contractors in relation to coal mining operators. For example, in Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd [2023] FCA 68; 322 IR 129 (‘Hitachi’) the question was whether employees of a supplier and repairer of earth moving equipment were caught by the scheme. A feature of this genre of litigation is that it is becoming more complex. The Commission’s decision to define the black coal mining industry has exacerbated this problem, as this case shows.

9    The scheme operates by reference to the concept of an ‘eligible employee’. On 21 May 2019, the Respondent issued a notice to Orica requiring it to produce information and documents relating, in effect, to the question of whether its shotfirers were eligible employees for the period from 2010. Orica contends that the notice is invalid because its shotfirers were not ‘eligible employees’ over whom the Respondent’s remit extended during that period.

10    The parties agree that it would be advantageous to have the Court’s conclusions on the shotfirers’ eligibility before further debating the validity of the notice. Accordingly, the eligibility question has been severed from the remainder of the proceeding and is to be determined first. The parties were ably represented by experienced counsel. Mr Murdoch KC and Mr Fuller appeared for Orica and Mr Clarke SC and Mr Meehan (as Mr Meehan SC then was) appeared for the Respondent.

11    An ‘eligible employee’ is defined in s 4(1) of the Administration Act in these terms:

eligible employee means:

(a)    an employee who is employed in the black coal mining industry by an employer engaged in the black coal mining industry, whose duties are directly connected with the day to day operation of a black coal mine; or

(b)    an employee who is employed in the black coal mining industry, whose duties are carried out at or about a place where black coal is mined and are directly connected with the day to day operation of a black coal mine; or

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

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

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

12    It will thus be seen that the Administration Act is concerned only with the black coal mining industry. For those who are interested, the mining of brown coal seems to be largely integrated into the electricity sector and is subject to separate industrial regulation. Returning to the case at hand, sub-ss (c) and (d) of the above definition can be put to one side. There is no dispute that the shotfirers performed their duties at black coal mines or that the performance of their duties was directly connected with the day to day operation of a black coal mine. The question is whether the shotfirers were ‘employed in the black coal mining industry’ for the purposes of sub-s (b) (‘the location limb’). Sub-section (a) (‘the employer limb’) does not arise for consideration in this case. If the shotfirers were employed in the black coal mining industry then the location limb will be satisfied and the employer limb will not matter. If they were not employed in the black coal mining industry neither limb will be satisfied.

13    Nevertheless, the relationship between these two limbs contemplated by the definition in s 4(1) has important ramifications. The employer limb differs from the location limb inasmuch as it requires an employer to have a particular quality (‘engaged in the black coal mining industry’) whereas the location limb does not mention the employer at all but requires instead that the employee work at or near a particular location (unsurprisingly, a black coal mine). Accordingly, an employee who works for an employer engaged in the black coal mining industry does not need to work at or near a black coal mine and, if an employee is employed in the black coal mining industry at or near a black coal mine, it does not matter at all who their employer is or in which industry that employer happens to be engaged.

14    If the analysis were to end there, it would be clear that the shotfirers were employed in the black coal mining industry all other things being equal. However, the antipodean fascination with definitional exactitude has given rise to an implausible, yet entirely respectable, argument that they were not. This case, and the definition which the Award provides of the black coal mining industry, perhaps illustrate why, where drafting is concerned, a zeal for conceptual precision is unwise. This is particularly so where, as here, the concept sought to be delineated is inherently fuzzy. Drafting is complex. The more components there are in it the more susceptible it is to Murphy’s Law which holds that if something can go wrong it will eventually do so. The more elements there are in a scheme of regulation the more ways it can go off the rails and the greater the likelihood that it will do so. In this case, as will be seen, the rails are only indistinctly visible in the rear vision mirror.

15    To have been within the location limb the shotfirers must have been ‘employed in the black coal mining industry’. The black coal mining industry is defined in s 4(1) this way:

black coal mining industry has the same meaning as in the Black Coal Mining Industry Award 2010 as in force on 1 January 2010.

16    The black coal mining industry is defined in the Award in cll 4.2 and 4.3:

4.2    For the purposes of this award, black coal mining industry has the meaning applied by the courts and industrial tribunals, including the Coal Industry Tribunal. Subject to the foregoing, the black coal mining industry includes:

(a)    the extraction or mining of black coal on a coal mining lease by means of underground or surface mining methods;

(b)    the processing of black coal at a coal handling or coal processing plant on or adjacent to a coal mining lease;

(c)    the transportation of black coal on a coal mining lease; and

(d)    other work on a coal mining lease directly connected with the extraction, mining and processing of black coal.

4.3    The black coal mining industry does not include:

(a)    the mining of brown coal in conjunction with the operation of a power station;

(b)    the work of employees employed in head offices or corporation 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 a plant or char plan 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.

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

18    It is also agreed that Orica’s provision of shotfiring and explosive services at these black coal mines was an integral part of the operation of those mines. The evidence of Professor Bruce Hebblewhite made this inevitable. Professor Hebblewhite is an Emeritus Professor at the University of New South Wales specialising in mining engineering. He described in detail the manner in which shotfiring is used to remove overburden from above a coal seam. In particular, he explained that blast design and scheduling are critical parts of the mining operation. This is because a smooth blasting process ensures that the overburden is removed at a sufficient rate to permit the coal to be extracted in accordance with the mine’s production schedule: Court Book 707.

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

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

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

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

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

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

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

Does cl 4.3(g) only apply to the employer?

26    I do not accept the Respondent’s theological submission that cl 4.3(g) only applies to the employer and does not apply to the shotfirers themselves. This was the second path by which the Respondent sought to evade the application of cl 4.3(g) to the location limb. Here, the argument was that because cl 4.3(g) operated by reference to whether an employer was engaged in the black coal mining industry, it had no bearing on whether an employee was employed in that industry. The question is whether the exclusion from the black coal mining industry of the supply by an employer of shotfiring services necessarily entails the simultaneous excision from the industry of the work of the employees who carry out that shotfiring.

27    If the reference to the supply of services in cl 4.3(g) is read as a reference to the physical acts constituting the supply of the services then those physical acts are taken out of the black coal mining industry. Those physical acts include in their entirety the performance by shotfirers of their duties. If cl 4.3(g) is read this way, then it excludes not only the employer from the black coal mining industry but also the shotfirers.

28    On the other hand, if cl 4.3(g) is read not as a reference to physical acts but instead to legal relations then it can only apply to the employer because, as a matter of law, the services are only provided by the employer.

29    Against reading cl 4.3(g) as referring to legal relations is the observation that the Award is an industrial instrument in which such niceties usually have no place. On the other hand, the Award’s coverage clause, cl 4.1, in terms assumes as a matter of concept the idea, perhaps challenging to those untutored in black coal mining litigation, that an employee may be employed in the black coal mining industry by an employer which is not itself engaged in that industry:

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 of class of work in Schedule A – Production and Engineering Employees or Schedule B – Staff Employees of this award.

30    If the Award did not accept the possibility of employment in the black coal mining industry by an employer which is not engaged in that industry, cl 4.1(b)(ii) would be unnecessary. Thus, the terms of the Award of which cl 4.3(g) forms but part, assume that the work of an employee may be within the black coal mining industry even when the employer is not engaged in that industry. The kind of strangeness which the Respondent’s submission entails is therefore already present in the Award and, as such, is less persuasive against the Respondent’s submission than it might otherwise be.

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

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

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

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

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

34    A subsequent Full Bench cast some doubt on whether Dyno Nobel had paid sufficient attention to the words ‘in connection with’ in the eligibility rule: Harnischfeger of Australia Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 152 IR 243 at [70]-[73]. For present purposes, however, that debate has no relevance to the conclusion reached about the substantial character of the business of Dyno Nobel. Further, there can be no doubt that the Full Bench did not entertain for even one moment the recherché idea that shotfiring was not an activity which takes place in the coal mining industry.

35    As already noted, before the Commission issued the Award it received numerous submissions on earlier drafts. These submissions included a submission by Dyno Nobel that it should not be subject to the Award because of its victory in preventing the CFMEU from representing its shotfirers in Dyno Nobel. I accept that in a poorly executed sort of way cl 4.3(g) appears to be a response to the decision in Dyno Nobel, as did White J in Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 (‘Bis’) at [82]. If the excision from the black coal mining industry effected by cl 4.3(g) were read so that it does not include the performance by shotfirers of their duties then it would follow that the black coal mining industry, by reason of cl 4.2(d), would include the work of shotfirers at black coal mines even if it did not include the supply of those same services by Orica. Consequently, the shotfirers would be employed in the black coal mining industry for the purposes of cl 4.1(b)(ii) and a firm engaging them would be covered by the Award through cl 4.1(a). In particular, it would entail that firms such as Dyno Nobel were covered by the Award. Since this is a result which cl 4.3(g) appears to have been intended to avoid, I conclude that cl 4.3(g) relates not only to the provision of shotfiring services by an employer but also to the performance by employees of the duties by which those services are provided. This reading is also consistent with a good dose of common sense.

The meaning of ‘otherwise’ in cl 4.3(g)

36    The next issue is whether Orica is ‘otherwise engaged in the black coal mining industry’ for the purposes of the proviso in cl 4.3(g). The parties agreed that the word ‘otherwise’ means that in assessing whether it is engaged in the black coal mining industry for the purposes of cl 4.3(g) the provision of its shotfiring services at black coal mines is to be disregarded.

37    Where the parties differed was whether the proviso to the exception in cl 4.3(g) was engaged because Orica was otherwise engaged in the black coal mining industry through the activities of a business unit unrelated to its shotfiring services known as Minova. I will return to the detail of that business shortly but for present purposes it suffices to know that a key feature of the Minova business is that it was involved in the underground mining of black coal. It is not a feature of the underground mining of coal that large explosions are used to uncover a seam of coal and, indeed, large explosions in underground mining are generally not a good idea. Unsurprisingly, therefore neither the Minova business nor its client mine operators employed any shotfirers.

38    If the proviso to the exception in cl 4.3(g) is enlivened by the Minova business it will have the consequence that Orica’s shotfiring services are not excised from the black coal mining industry. On that hypothesis, it would be open for the curious to decide whether, quite apart from the Minova business, Orica was engaged in the black coal mining industry through the shotfiring services it provided. As a matter of logic, however, it is difficult to see how this question can ever be material given the parties were in agreement that those shotfiring services were to be disregarded for the purposes of the analysis required by cl 4.3(g). Thus, in the way in which the case has been presented the question of whether Orica was engaged in the black coal mining industry by reason of its supply of shotfiring services can never matter.

39    I mention this matter because much of the agreed statement of facts and a good deal of the evidence is devoted to the question of how substantial Orica’s shotfiring business was and, more importantly, the degree to which it was integrated into the operations of the coal mining operators to which Orica provides its services. The relevance of the material relating to the extent of integration can only be to the question of whether Orica was engaged in the black coal mining industry through its provision of shotfiring services. However, in their submissions neither party explored the implications of the integration evidence, no doubt for the reasons set out in the preceding paragraph.

40    Returning to issue at hand, the parties thus shared the view that in assessing whether Orica was engaged in the black coal mining industry for the purposes of the proviso to the exception, its shotfiring services were to be disregarded.

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

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

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

The relevant enterprise for the purpose of cl 4.3(g)

44    At the relevant times, Orica was engaged in several different enterprises of which only two are relevant. These were (a) the manufacture and supply of commercial explosives and blasting systems; and (b) the provision of chemical and mechanical earth control products, adhesives and ground support solutions through its Minova business.

45    In the way the case has been run the enterprise in (a) has no direct relevance. However, it does have an indirect relevance to an argument developed by Orica. In assessing whether the Minova business was engaged in the black coal mining industry, Orica developed a contention that the Minova business was but a small part of its overall operations which largely consisted of the enterprise in (a). In this way, the magnitude of the enterprise in (a) was brought to bear on the characterisation of the enterprise in (b).

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

47    It is uncontroversial that one firm may through different enterprises be engaged in different industries: R v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 at 57 per Latham CJ (‘A single employer may carry on two or more industries. The same man may be a farmer and a miller and a baker’). The modern conglomerate is an example of the union of many such enterprises. Where conglomerates are concerned the question of whether a single enterprise carried on by the conglomerate is engaged in a particular industry is in nowise affected by the activities in which it also happens to be engaged through the other enterprises. For example, Boeing makes nuclear weapons and commercial aircraft. I do not think that the size of its nuclear endeavours can impact in any way on whether it is also engaged in the aircraft manufacturing industry. The same is true here. In assessing whether the Minova business is engaged in the black coal mining industry, it is irrelevant what Orica did through the explosives side of its business or how large that business was.

48    I therefore reject Orica’s approach. The question then becomes whether the Minova business was engaged in the black coal mining industry.

49    Standing back from the milieu for a moment, the unsatisfactory state of affairs achieved by the definition of the ‘black coal mining industry’ can now be discerned. The Court is to determine whether the shotfirers are employed in an industry in which they are plainly employed by disregarding entirely the fact that they perform their duties at open cut black coal mines which are directly connected to the mining of black coal. And, at least on the reasonable construction of cl 4.3(g) proffered by the parties in this case, instead of seeking to understand the nature of the work being carried on by the shotfirers (whose eligibility after all is the question at hand), the Court is instead to decide their eligibility by reference to an enterprise by which they are not employed.

The standard to be applied in cl 4.3(g) because of the word ‘engaged’

50    The word ‘engaged’ appears in cll 4.1 and 4.3. Ordinarily where the same word is used in a single clause of an instrument it should be given the same meaning throughout unless some good reason to depart from that approach appears. I perceive no such reason. In cl 4.1 it is established that the word ‘engaged’ requires an assessment of the substantial character of the industrial enterprise in which the employer is engaged: Bis at [76(h)]. It therefore bears the same meaning in cl 4.3(g). In assessing whether Orica was otherwise engaged in the black coal mining industry one must therefore assess the substantial character of the Minova enterprise. If the substantial character of that enterprise is in the black coal mining industry then the proviso to the exception will be engaged. In that circumstance, shotfiring will be in the black coal mining industry and the performance by the shotfirers of their duties as such will entail that they are ‘employed in the black coal mining industry’ for the purposes of the definition of ‘eligible employee’ in s 4(1).

51    This then gives rise to four questions. First, do the activities in which the Minova business was engaged at black coal mines fall within the black coal mining industry? Secondly, in what other activities was the Minova business engaged? Thirdly, how substantial a part of its business were its activities in the black coal mining industry? Fourthly, having regard to those matters, is the substantial character of the enterprise in which the Minova business was engaged such that it may be said to have been in the black coal mining industry or is properly characterized as having been so in substance?

Does the Minova business conduct activities which are in the black coal mining industry?

52    The agreed statement of facts referred to the contracts under which the Minova business had provided its services to black coal mine operators. These contained a complex list of services which varied from mine to mine. Orica eschewed any close examination of these matters in its written or oral submissions, a position which was mirrored in the Respondent’s written submissions. In his address, Mr Clarke SC for the Respondent did however touch upon the ventilation services discussed below.

53    Orica has always accepted that the employees carrying out these services at black coal mines were employed in the black coal mining industry for the purposes of the location limb and it has paid the tax on their wages. In this proceeding, it formally agreed that these employees were employed in the black coal mining industry. It follows that whatever the work the employees were doing at the black coal mines, it was within the black coal mining industry for the purposes of cl 4.1(b)(ii) and the location limb of the definition of ‘eligible employee’.

54    It is thus not strictly necessary to determine the nature of the services provided by the Minova business to the underground black coal mine operators because, whatever those services were, they were in the black coal mining industry. For completeness, on the evidence I would reach the same conclusion.

55    Professor Hebblewhite examined the various services and was able to wrangle them into three broad categories:

The provision of geological and/or geotechnical drilling and instrumentation

56    Professor Hebblewhite felt that it was difficult to provide a universal description of these services since they were very dependent on the individual application and the purpose of the relevant drilling or instrumentation. However, in general terms he thought that these activities would be carried out as part of an information gathering exercise which would then be used to inform decisions made under the mine’s ground control or strata management plan. I conclude that these services were an essential component of the mining operation itself and hence part of the black coal mining industry.

The installation of ventilation control devices

57    According to Professor Hebblewhite, the Minova enterprise was engaged in the installation, repair, maintenance and removal of various kinds of ventilation control devices (‘VCDs’). Supply of ventilation in underground coal mining was, he thought, an absolutely essential service to ensure the ongoing safe operation of the mine. He observed that VCDs had to be installed in a timely manner in conjunction with the changing state of the mine development and the process of coal extraction. Professor Hebblewhite also thought that the provision of VCDs was integrally connected with the operation of the mine. I accept that these services were an essential part of the mining operation and hence part of the black coal mining industry.

Secondary ground support

58    Professor Hebblewhite stated that these services could take many forms. One such form related to the need to provide secondary ground support to VCDs so that any additional loading or stress conditions did not compromise the ventilation systems. As with the VCDs themselves, he thought that secondary ground support services for VCDs were integrally connected with the operation of the mine. I accept that the provision of these services was an essential component in the mining operations and hence part of the black coal mining industry.

59    Quite apart from Orica’s concession that its Minova employees at the relevant mines were employed in the black coal mining industry, I would conclude on the facts that the services provided by the Minova business at underground black coal mines constituted activities in the black coal mining industry.

The Minova business’s other activities

60    It is Orica which has brought this suit. As the Applicant it bears the onus of proving its case at the civil standard. On this issue, its case is that it is not engaged in the black coal mining industry because the black coal mining industry does not include shotfiring. To make good that proposition it must show at the civil standard that it is ‘not otherwise engaged’ in that industry. It sought to discharge this onus by leading evidence in chief from Mr Sateesha Seetharam about, inter alia, the nature of the Minova business’s activities in Australia.

61    Mr Seetharam provided two affidavits and was cross-examined. He gave evidence that Minova commenced operations in 1882 in Dortmund in what was then part of Prussia and was originally known as Willich. It has been involved in a number of mergers and acquisitions since the Second World War including a period in which it was owned by interests associated with British Petroleum. It became known as Minova in 2003 before being acquired by Orica Ltd in 2006. Orica Ltd is the parent company of Orica. The Minova business has its head office in London. Administratively, the business appears to operate in four different regions although these regions are not necessarily geographically contiguous. These are: (i) Europe, the Middle East and the Commonwealth of Independent States (an intergovernmental cluster of nine States formerly part of the Soviet Union including Russia and Azerbaijan) (‘Europe’); (ii) Africa; (iii) the Americas; and (iv) the Asia-Pacific.

62    At the time that he swore his affidavits Mr Seetharam was the head of the Asia-Pacific component of the Minova business. During the period of Orica Ltd’s ownership of it, the Minova business was conducted through separate corporate vehicles in each region except, for a period, in the Asia-Pacific region. More precisely, between 2006 and 2013 the Asia-Pacific business had been conducted by an Australian Minova entity which was owned by Orica Ltd. However, from 2013 a decision was made that Orica would employ the Minova employees engaged in its Asia-Pacific business. Those operations nevertheless remained separate from the rest of Orica’s explosives business. Mr Seetharam’s evidence comfortably satisfies me that at all relevant times the conduct of the Minova business in Australia has been entirely separate from Orica’s explosives business and that the case presents as one in which one firm is engaged in two entirely separate enterprises.

63    The critical part of Mr Seetharam’s evidence was at §§11-15 of his first affidavit where he described what the Minova international business does. He described this business as consisting of the provision of ground support and geotechnical solutions. The nature of the ground support services appeared to consist of the provision of certain products used to stabilise the ground. These included resins, mechanical stabilising products, and chemical and cementitious grouts and adhesives. Minova also provided labour to apply these products (presumably to the ground) and equipment to achieve this end. Another element of the ground support services included the provision of ventilation control.

64    These ground support services appear to have been provided in four different circumstances. First, in the mining industry, although there was relatively little work in open cut mining where its efforts were only directed at slope stabilisation. I took the burden of Mr Seetharam’s evidence to be that Minova’s ground support services were much more heavily utilised in underground mining.

65    The second circumstance where the ground support services were provided was in tunnelling enterprises which, like underground mining, also occur underground. The third area, which was not explained in any detail, related to ‘surface civil engineering projects’. Since a surface civil engineering project could be almost anything (e.g. roads, dams, bridges and buildings) I infer such undertakings have a need for geotechnical and ground support services. The fourth area was referred to as ‘rehabilitation and remediation’ and appeared to be related to emergency circumstances such as, perhaps, the collapse of a retaining wall or bank.

66    Insofar as the mining circumstances were concerned, Mr Seetharam divided these into two further subcategories: soft rock and hard rock. He did not explain what the difference between soft and hard rock was. For reasons which I give below I would infer that soft rock mining includes underground mining for black coal in Australia.

67    In addition to its ground support and geotechnical services, Minova included the ‘former businesses’ of ‘a number of mining steel producers’ which had been at various times acquired by Orica Ltd and merged with Minova. One of these was known as Strata Control Systems and had operated in Australia. The import of this evidence is unclear to me. Read literally Mr Seetharam’s evidence at §14 may appear to suggest that the Minova business had been engaged in the production of steel. However, §14 might also bear a reading that Orica Ltd had acquired businesses which had been ‘operated’ by steel producers so that what was merged with Minova was some unidentified business owned by a steel producer and not necessarily its steel production business. For example, it is possible that a steel production enterprise might have had a need for ground support and geotechnical services.

68    On balance, the murk which is this evidence does not satisfy me that the Minova business was engaged in the production of steel. Neither party in their submissions referred me to any evidence about what the business of Strata Control Systems was. I do not think that the evidence about Strata Control Systems is sufficiently detailed to make any findings about it and as such I will disregard it.

69    Mr Seetharam then said at §15 that Minova’s operations were broadly the same across the world but that the four different regional units had different emphases. In particular, he said that the business in Australia was ‘predominantly’ in soft rock. Recalling that soft rock relates to underground mining, it may be inferred that the Minova business in ‘Australia’ related to underground mining in soft rock. In this part of his evidence Mr Seetharam referred to ‘Australia’ rather than the Asia-Pacific region. In other parts of his evidence Mr Seetharam appeared to refer to the Australian part of the business as being the parts actually located in Australia. For example, he explained the various office buildings which the Minova business had in Australia at §22. On the other hand, his reference to the four regions may imply that his reference to Australia in §15 was intended to be a shorthand reference to the Asia-Pacific region.

70    I propose to disregard the evidence concerning the activities of the Minova business in the Asia-Pacific region outside of Australia. This is for two reasons. First, Mr Seetharam’s evidence does not persuade me at any level of detail what Minova’s Asian-Pacific but extra-Australian activities actually are. Secondly, the question to which this relates is whether Orica, through the Minova business unit, was engaged in the black coal mining industry. I would read this as being a reference to the black coal mining industry in Australia: Acts Interpretation Act 1901 (Cth) ss 21(1)(b) and 46. Thus the evidence does not provide a sufficient foundation to make findings about what the Minova business was doing in the Asia-Pacific region outside of Australia and would not be relevant even if it did.

71    The task then becomes to identify what the Minova business did in Australia. Mr Seetharam’s evidence allows a finding to be made that it provides its ground support and geotechnical services ‘predominantly’ in underground mining in soft rock. However, Mr Seetharam did not give any evidence about what kind of underground mining ventures these were or what the other mining activities in which the Minova business was not predominantly engaged were.

72    The agreed statement of facts bears on this issue. Read with some care, it reveals that Minova’s Asian-Pacific segment employs 165 personnel: [18(a)], [28] and [29]. Of these 165, some 57 personnel were engaged at black coal mining sites in Australia providing Minova’s underground mining services ([28]) and their work was such that it is admitted that these persons were employed in the black coal mining industry: [34]. Since Mr Seetharam’s evidence was that the Minova business was engaged predominantly in soft rock mining ventures and since it would appear that a significant number of its employees were employed in the black coal mining industry, I would infer that the mining of black coal in which the Minova business was providing its services was soft rock mining.

73    The evidence does not disclose whether the 57 employees who were employed in the black coal mining industry did any other work outside that industry. I do not find it proven that they did.

74    According to [29] of the agreed statement of facts, the balance of 108 employees were engaged in supply chain, manufacturing, commercial sales, technology, engineering, finance, human relations and safety. In its written submissions Orica footnoted this paragraph (fn 23) to a summary which omitted any reference to engineering or technology and did so without indicating that this editing had occurred. The balance of the submissions did not, perhaps unsurprisingly, throw any light on the nature of the engineering referred to in this footnoted paragraph. So far as the technology is concerned all that was said was that Minova received IT support from Orica. I do not infer that the 108 other employees were involved in the provision of the Minova business unit’s ground support and geotechnical services.

75    On these findings, it is open to infer that the only enterprise actually carried on by the Minova business was the provision of its ground support and geotechnical services to the operators of black coal mines. There is some evidence which is against the drawing of that inference. First, there is Mr Seetharam’s evidence in his first affidavit that the predominant aspect of the Minova business’s activities in Australia was the provision of its services to soft rock mining ventures. This leaves open the possibility that some of its services were provided in hard rock mining. Secondly, it is also possible that this encompasses soft rock mining operations other than the mining of black coal. Thirdly, it is possible that the Minova business provided its ground support and geotechnical services in the three other areas mentioned by Mr Seetharam, namely, tunnelling, civil engineering services and remediation.

76    These matters do leave open the drawing of an inference that the Minova business unit provided its ground support and geotechnical services in other industries in Australia apart from black coal mining. However, this material is distinctly vague. I accept that inferences in either direction are open although the inference that the Minova business provided its services only at black coal mines seems the stronger of the two.

77    It was Orica which led this vague evidence. It was well within its ability to provide much less vague evidence about the operation of the Minova business unit than it has. It has not submitted that some impediment stood in its way in providing that explanation. As it happens, on the basis of the evidence, I prefer the inference that the Minova business only provided its services in Australia to the operators of black coal mines. But I am fortified in that conclusion by Orica’s failure to put before the Court a clear account of the operations of the Minova business. In a case which was about the substantial character of the Minova business, Orica’s evidence was striking in what it did not say.

78    The vagueness of Mr Seetharam’s evidence about this naturally presented a dilemma for the Respondent when it came to cross-examining him. First he was asked at T31.46 whether it was correct that he had set out the operations of the Minova business at §§11-13 of his first affidavit which he confirmed to be correct. At T32.29-33.7 this exchange took place:

Minova was principally – is principally concerned with underground coal mining. That’s right, isn’t it?---Minova operates in a number of segments. That includes mining, tunnelling, infrastructure projects across the globe. Within mining space, Minova operates in both hard rock, as well as soft rock mining markets.

And to the extent it was involved in coal mining, it was involved – it was principally concerned with underground coal mining, correct?---Correct. Minova’s operations, globally, has been predominately in underground environment. In very limited instances, we did perform small operations on an open surface mining, but that was very limited.

So in your affidavit, in paragraph 13, you refer to “ventilation control work, provided by Minova”?---Yes.

And that’s in respect of underground mining – that includes in respect of underground mining, correct?---That is predominately in the underground mining environment. And it’s in respect of underground coal mining, correct?---We do some – we do provide installation services in an underground coal mining environment, but we also supply products that are related to ventilation control systems into the hard rock mining – which we don’t service.

And ventilation control work is necessary and critical to the actual extraction of coal in underground coalmines, correct?---Correct.

79    There was no re-examination. The way I read this is that Mr Seetharam’s first answer was a statement about Minova’s overall international business. I do not read the exchange as altering the state of the evidence before he was cross-examined.

80    For those reasons, I conclude that the Minova business’s only activity in Australia was the provision of ground support and geotechnical services to the operators of black coal mines.

Was the substantial character of the Minova business in the black coal mining industry?

81    Where a firm by means of a single enterprise provides its services to firms which are in more than one industry the question of whether it is engaged in one or more of those industries is usually resolved by seeking to ascertain its substantial character. The conceptual framework for that analysis largely rests on an example given in R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 (‘Thiess’) at 131 by Latham CJ of a firm operating a laundry and providing laundry services to hotels. Chief Justice Latham posited that if the laundry provided its services to hotels but also to other customers such as restaurants it would not be possible to say that it was engaged in the hotel industry. On the other hand, if the hotel employed laundresses at its premises to do work exclusively for it, it was likely that the laundresses were employed in the hotel industry.

82    The analysis is inherently taxonomic but, like all exercises in taxonomy, is undertaken with a particular purpose in mind. The purpose in Thiess was the need to define an industry so as to provide for the regulation of its industrial affairs. If the purpose of the taxonomy were different, say health and safety, the question of characterisation might be approached differently.

83    In this case, the purposes of cl 4.3(g) remain industrial. Through cl 4.1, cl 4.3(g) is part of a machinery which defines which employers are to be bound by the Award and which are not. Thus, as I have already observed, the substantial character test remains the applicable mechanism for determining the Award’s coverage.

84    Much ink has been spilt on the circumstances in which third-party contractors providing services to black coal mine operators become thereby themselves engaged in the black coal mining industry. A comprehensive account of these cases appears in Bis and, more recently, in Raper J’s very helpful judgment in Hitachi.

85    The cases have concerned contractors which provide services to the operators of black coal mines but also to other customers. That is not the situation in this case. Here, on the facts, the only activities engaged in by the Minova business were the provision of ground support and geotechnical services to the operators of black coal mines, at black coal mines and by employees who it is not disputed worked in the black coal mining industry.

86    Without immediately embarking on the full analysis required by decisions such as Thiess and, most recently, Hitachi, it would be surprising if the Minova business were not engaged in the black coal mining industry since it is difficult to identify any other industry in which it was engaged in Australia. In terms of the laundry example, this is the same as a laundry which provides its services only to hotels and only at their premises. The substantial character test in Thiess seeks to answer the question of whether such a firm should have its industrial affairs regulated as a participant in the hotel industry. In doing so it converts an essentially normative inquiry as to whether one thinks that a firm should be regulated as part of an industry into an objective analysis of the substantial character of the employer.

87    The extent of the use of contractors within the economy has expanded far beyond anything contemplated at the time of Thiess as firms have realised that lower costs can be achieved through specialisation. For example, in the context of this case, I have no doubt that at one time mine operators provided their own ground support and geotechnical services. But economies of scale mean that these services may be less expensively delivered by firms who specialise in them. Similarly, the modern airline industry more and more consists of the activities of contracting firms which provide specialist services to multiple airlines (for example, firms providing the services of baggage handling).

88    The time may come (indeed, may have come) when some enterprises are conducted by firms which, whilst in legal form are providing services, in industrial reality consist merely of a conglomeration of third-party contractors. It is possible that this development exceeds the explanatory capacity of the laundry example and a new conceptual framework may be called for.

89    In any event, the substantial character test continues to be the orthodox approach to these issues. Turning then to the analysis called for by Thiess, the relevant principles are: (i) the fact that one firm provides services to a firm engaged in an industry does not mean, in itself, that the first firm is engaged in that industry; (ii) where a contractor provides services at a black coal mine which consist of activities which are in the black coal mining industry the chief circumstance which determines whether the contractor is engaged in the black coal mining industry is the degree of separateness between the contractor’s operations and those of the mining operator; and (iii) separateness in this sense may be gauged by considering the extent of control that the mining operator has over the operations of the contractor, the organisation of the two firms, their location, their interests and their personnel and equipment: Thiess at 130-131, 134-135 and 140-141.

90    Professor Hebblewhite’s analysis of the three sets of services provided by the Minova business to mine operators included a consideration of the extent to which it interacted with the employees of the mine and the degree to which it was subject to the mine operator’s control. His evidence shows that at each mine there were mine deputies who were almost always employed by the mine operator. The mine deputies were frontline statutory officials responsible for workplace inspections and safety. The deputies would have exercised some level of authority over Orica’s employees and there would necessarily have been a degree of engagement with them. In addition, it was possible that Orica’s employees would have needed to work with mine tradespersons to arrange power, water or other services or to assist in moving equipment around the mine from one site to the next.

91    Thus the Minova business provided its services under its own steam and, no doubt, with its own expertise. Subject to the question of safety, I do not think that the mine operator could or would have told the Minova business how to do its work. But in providing its services in the confined space of an underground coal mine it was inevitable that it would have had to interact with the employees of the mine operator. And, on the paramount issue of safety, the Minova business was always subject to the direction of the deputies and hence the mine operator (even accepting that on occasions it utilised its own inspectors). It is also to be noted that safety is a larger concern in the context of underground mining than perhaps it is in other industries.

92    If the Minova business had customers which were not engaged in the mining of black coal, I would possibly have been disposed to see it in the same way that Raper J saw Hitachi in Hitachi; that is, as a provider of services to a number of different enterprises only some of which were black coal miners. However, the fact that the Minova business provides its services exclusively to black coal miners makes it impossible to say that it is engaged in any other industry apart from the black coal mining industry. All of its services were provided at black coal mines, those services were integrated into the mining operations, the services were provided by employees which Orica does not dispute were employed in the black coal mining industry and those employees were subject to the direction of the mine operator at least where safety was concerned. The degree of integration between the mine operators and the Minova business was high. I therefore conclude that the substantial character of the Minova business was in the black coal mining industry.

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

The meaning of the word ‘engaged’ in the employer limb

94    As a fall back position (which as events transpire it does not need), the Respondent also submitted that Orica was ‘engaged’ in the black coal mining industry for the purposes of the employer limb even if it was not engaged in that industry for the purposes of cl 4.3(g). I have already explained why this cannot matter. For the shotfirers to come within the employer limb they must have been employed in the black coal mining industry. If that requirement is satisfied then in the circumstances of this case the location limb is engaged and the employment limb does not arise for consideration. If the shotfirers were not so employed, neither limb will be satisfied.

95    It is therefore not necessary to address whether the word ‘engaged’ in the employer limb in s 4(1) has a different meaning to that which it bears in cll 4.1(b)(i) and 4.3(g) of the Award. Here the issue is whether the substantial character test is imported into the employer limb. The Respondent submits that ‘engaged’ in the employer limb must be given a more attenuated meaning (such as, probably, ‘involved’) because, if it is not, then the portability provisions in Part 5A of the Administration Act will be thwarted.

96    The issues raised by this submission are quite substantial. They include the prior history of the definition of ‘eligible employee’ in s 4(1) which turns in part on the fact that the legislation providing for the levy (initially an excise on coal, more recently a payroll tax) has always been based on the taxation power in s 51(ii) of the Constitution whereas the industrial regulation of the black coal mining industry had until 2010 been regulated through a patchwork of State instruments and laws, and federal awards made to resolve industrial disputes having an interstate character.

97    Since this issue does not arise on the conclusions I have reached, I do not think it would be particularly useful to express an opinion on it.

98    At this stage, the only order I will make is that the costs of the proceeding to date be reserved. The parties should liaise with my Associates to determine a suitable time to debate the validity of the notice, if that be necessary.

Associate:

Dated:    5 December 2023