March 1, 2023
Long service leave win for coal contractors
A recent Federal Court judgment has upheld the principle that if you perform coal mining work in a coal mine, you should receive coal mining entitlements. It sounds obvious, but some contractor employers have been arguing that if their primary business is not coal mining, they shouldn’t have to stump up.
The February 8 judgment concerns a long-running attempt by equipment supplier Hitachi to avoid paying the Coal Industry Long Service Leave Scheme levy for some of their employees who work in Hunter Valley coal mines maintaining machinery. Hitachi argued that because their business is not primarily in coal mining, they should not have to participate in the scheme. Hitachi are backed by the Australian Industry Group who want to narrow the scope of the scheme to exclude mechanical and electrical contractors working in coal mines.
The Coal Industry Long Service Leave scheme is administered by the federal statutory body Coal Long Service Leave (Coal LSL) and requires employers to pay a levy for eligible employees based on hours worked. The levy goes into a fund to cover the cost of their access to thirteen weeks’ paid leave after eight years of service in the industry for each eligible employee. It’s a portable scheme, meaning workers maintain their entitlement regardless of whether they have changed employers during that time.
The Coal Industry Long Service Leave scheme is unique. It was fought for by coal miners in our District over 70 years ago. Born from the bitter seven-week coal strike of 1949, it was the first scheme in Australia for blue collar workers. It remains one of the most comprehensive schemes in Australia and is considerably more beneficial to employees than National Employment Standards and State based long service schemes.
Under the Coal Long Service Leave Act, a worker becomes eligible for the scheme either if their employer’s primary activity is mining black coal, or if the employee’s duties are directly connected with the day-to-day operation of a black coal mine.
In the matter brought by Coal LSL against Hitachi Construction Machinery, Justice Raper found that even though Hitachi is not primarily a coal mining company – only a small fraction of its overall revenue comes from the industry – its Muswellbrook branch does primarily service the black coal industry through major machinery service and repair contracts at local coal mines.
She found that four workers, representative of employees of the Hitachi Muswellbrook branch had worked as mechanics carrying out or overseeing the repair and maintenance of mining machinery at Hunter Valley coal mines. They were eligible to be covered by the scheme due to the nature and location of their work duties being connected to the daily operation of coal mines.
This judgment is important because it adds to the weight of legal opinion that eligibility for coal mining entitlements, including coverage by the Black Coal Mining Industry Award, should be based on the activity of the employee, including their work tasks and environment, and not solely the industry of the employer.
It affirms the right of mechanical and electrical contractors in coal mines to be covered by the Coal LSL Scheme and the requirement for their employers to contribute to the scheme.
Hitachi may appeal this decision and employers will always find new ways to try and wind back worker entitlements, but it’s always worth celebrating when our justice system delivers a win for workers.