Tom French (Moore, Australian Labor Party) Share this | Hansard source

I rise to speak in support the Coal Mining Industry (Long Service Leave) Legislation Amendment Bill 2025. This bill amends two pieces of Commonwealth legislation: the Coal Mining Industry (Long Service Leave) Administration Act 1992 and the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992. The amendments address two matters that have arisen over the time in the operation of the portable long service leave scheme for the black-coal mining industry. The first concerns historical levy liabilities that have accumulated following disputes about the scope of the scheme. The second concerns the operation of the additional levy that applies where levy payments are made late. Each of these matters goes directly to the integrity of the scheme and to the ability of workers to access entitlements that the law provides.

To understand the significance of these amendments, it is necessary to briefly consider the purpose of the portable long service leave scheme itself. The long service leave arrangements that apply in the black-coal mining industry reflect a longstanding feature of employment in the sector. Coalmining is an industry characterised by movement of labour between sites, between contractors and between operators. Workers often spend decades in the industry, yet their employment may be spread across multiple employers during that time. In those circumstances, a traditional model of long service leave that relies upon continuous employment with a single employer does not adequately recognise the reality of working life in the industry. The Commonwealth scheme addresses that problem by allowing long service leave to accrue based upon service within the industry itself. Employers contribute to the scheme through a payroll levy paid into a central account. Service records are maintained by the scheme administrator, and, when a worker becomes entitled to long service leave, the employer is reimbursed from the fund. The practical effect is that a worker's mobility within the industry does not deprive them of the entitlement that would otherwise arise from long periods of service.

This principle—that workers should not lose their entitlements simply because of contracting structures or labour hire arrangements—is consistent with the broader industrial reforms this parliament has undertaken. The government's Fair Work Amendment (Same Job, Same Pay) Bill 2021 was introduced to ensure that labour hire arrangements are not used to undermine wages and conditions negotiated through enterprise bargaining. The same underlying principle applies here. The structure of employment should not be used as a device to avoid the obligations that arise from work performed in the industry. That act establishes the entitlement and defines who is an eligible employee for the purposes of the scheme. The legislative framework underpinning that system is set out principally in the Coal Mining Industry (Long Service Leave) Administration Act 1992. The statutory definition incorporates workers employed in the black-coal mining industry whose duties are directly connected with the day-to-day operation of the coalmine. Importantly, the act adopts the meaning of the black-coal mining industry contained in the Black Coal Mining Industry Award 2010. The award definition includes the extraction of coal, the processing and transportation of coal on a mining lease, and other work directly related with these activities.

The interaction with the statutory definition and the award coverage provisions has, over time, been the subject of litigation. In particular, a number of employers disputed whether certain categories of workers fell within the scope of the scheme. Those disputes often involved contractors performing specialist services at or around coalmines. In some cases, employers argued that these services were ancillary to mining operations and therefore outside the statutory concept of employment in the black-coal mining industry. Those issues were ultimately considered by the Federal Court in a series of proceedings, including Hitachi Construction Machinery (Australia) Pty Limited v Coal Mining Industry (Long Service Leave Funding) Corporation and Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation.

The Orica litigation provides a useful illustration of the issues that arose. That matter concerned employees engaged in shot-firing activities at open-cut coalmines. Shot firing involves the controlled detonation of explosives to remove, overburden and expose coal seams for extraction. The Federal Court noted that the process of shot firing is closely integrated with the extraction of coal and forms part of the operational sequence through which mining takes place. It is coordinated with production schedules and with safety systems operating across the mine site. The litigation required the court to examine the statutory definition of eligible employee and the manner in which that definition interacts with the coverage provisions of the Black Coal Mining Industry Award. In resolving those issues, the court clarified aspects of the scheme's coverage and the circumstances in which employees performing work at coalmines may fall within the statutory framework. It must be said that many employers complied with the scheme in good faith throughout that period. Others, however, adopted a far narrower view of the legislation and chose not to contribute levies while those disputes were being tested through the courts. Whatever the legal arguments may have been at the time, the consequence of those decisions was that workers' service was not recorded within the scheme.

The consequences of that clarification extend beyond the parties to the litigation. Where employers have previously taken the view that particular workers fell outside the scheme, levies may not have been paid in respect of those employees. The clarification provided by the courts therefore creates the possibility of historical levy liabilities arising for earlier periods. In some cases those liabilities extend back for many years. The existence of those historical liabilities presents practical challenges. Employers may face significant retrospective obligations. At the same time, workers whose service has not previously been recorded within the scheme may have periods of employment that have not been recognised for the purpose of calculating their long service leave entitlement.

It should also be understood that the payment framework established by this legislation is not intended to reward avoidance of obligations. It is intended to resolve historical disputes and restore the proper operation of the scheme. The expectation is that employers operating in the black-coal mining industry will comply not only with the letter of the legislation but with its purpose—ensuring that workers' long service leave entitlements are properly funded. The legislation establishes a structured pathway through which historical levy liabilities may be addressed. It is within that context that the amendments contained in this bill operate. Employers will have the opportunity to enter into voluntary payment arrangements with the scheme administrator. These arrangements allow outstanding levy liabilities to be repaid over an extended period.

The legislation also provides for a limited remission of a portion of historical liabilities where employers comply with these arrangements. The intention is to create an incentive for employers to regularise their position within the scheme and to resolve outstanding liabilities within the defined timeframe. It is important to emphasise that these provisions do not reduce the entitlements of workers. Any remission relates to the employer's levy liability rather than the entitlement of employees under the scheme. Workers remain entitled to full recognition of their service in the industry for the purpose of calculating long service leave.

The bill also addresses the practical issue of historical record keeping. Some of the liabilities identified through the litigation extend well beyond the seven-year period for which employers are generally required to retain employment records. In many cases it may therefore be difficult to reconstruct precise payroll data for earlier periods. The legislation recognises this practical reality. It allows reasonable assumptions to be made in circumstances where records are incomplete so that service can still be recognised for the purpose of determining entitlements. In this way, the absence of historical documentation will not prevent workers from accessing benefits that correspond to their period of service in the industry.

Alongside these measures, the bill also establishes a framework through which employers can regularise their position within the scheme in a manner that supports its continued financial viability. Payment arrangements may extend over several years and will be subject to the oversight of the scheme administrator. The legislation also recognises that in some circumstances employers may have previously paid long service leave entitlements directly to employees outside the scheme. Where that has occurred, the legislation allows these payments to be taken into account when determining outstanding liabilities so that employers are not required to duplicate payments in respect of the same entitlement.

The bill corrects a technical defect affecting the compliance framework of the scheme. The current legislation provides for an additional levy to apply where employers fail to make levy payments on time. The purpose of the additional levy is to encourage compliance with payment obligations. However, the statutory formula presented refers to a reference interest rate that is no longer published by the Reserve Bank of Australia. As a consequence, the mechanism does not operate as it was originally intended. The amendments replace that outdated reference with a contemporary rate published by the Reserve Bank, ensuring that the compliance provisions of the legislation continue to function as intended.

These amendments will have practical consequences across Australia's major coal producing regions. Workers in the Hunter Valley, Illawarra, Central Queensland, Mackay and Whitsundays regions are among those whose entitlements may be affected by the operation of the scheme. These regions have long been central to Australia's coal industry and remain important centres of employment and economic activity. For many communities in those regions, coalmining has shaped generations of working life.

This is also something that resonates with my own background. I grew up in regional New South Wales and, like many families in mining communities, I have relatives who worked in coal mines. In places like the Hunter Valley, the mining industry has been a defining feature of local economic and social life. Workers have spent decades in and around mine sites undertaking demanding and highly skilled work. Long service leave in that context has always represented recognition of sustained service under those conditions. It acknowledges the years that workers devote to the industry and the communities that depend upon it. In circumstances such as these, the role of parliament is to ensure that the statutory framework governing those entitlements continues to operate effectively.

Where the courts clarify the meaning of legislation, parliament must address the administrative consequences that follow from those decisions. The amendments contained in this bill perform that function. They ensure that the portable long service leave scheme continues to recognise service across the industry while addressing the practical issues that have arisen through litigation and the passage of time.

The portable long service leave scheme has been a longstanding feature of employment regulation in the coalmining industry. It reflects an understanding that the structure of that industry requires a different approach to recognising long service. By allowing entitlements to accrue across employers, the scheme ensures that workers who move between projects or operators are not disadvantaged as a result of that mobility. The amendments before the House ensure that the scheme continues to operate in accordance with that principle. They provide a pathway for resolving historical levy liabilities that have arisen following litigation. They ensure that service performed by workers within the industry can be properly recognised. They also strengthen the compliance framework that supports the financial sustainability of the scheme.

In doing so, the legislation reinforces a principle that has long been recognised in Australian industrial law: that service to an industry should be acknowledged even where employment occurs across multiple employers over time. The portable long service leave scheme for the coalmining industry is an expression of that principle. For those reasons, I commend the bill to the House.

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