The Coal Mining Long Service Leave Scheme – time for change Stephen Smith, Head of National Workplace Relations Policy, Australian Industry Group
T
he Coal Mining Industry Long Service Leave (LSL) Scheme is the oldest portable long service leave scheme in Australia. It was introduced more than 70 years ago and plays an important role in providing long service leave entitlements to employees in the black coal mining industry. The scheme is funded by a 2% levy on the ‘eligible wages’ of ‘eligible employees’.
For companies that mine black coal, the scheme causes few issues. The definition of an ‘eligible employee’ can be readily applied. However, for contractors to coal mining industry customers, there are major uncertainties about the coverage of the scheme, leading to major cost risks associated with back-pay claims for the levy. 64
BBMC Yearbook 2021
The scheme provides entitlements to ‘employees in the black coal mining industry’, but what does that mean given the numerous High Court, Federal Court and tribunal decisions over the years that have interpreted the phrase ‘employee in the coal mining industry’ in conflicting ways? Prior to the beginning of 2010, employers were covered by the Coal Mining LSL Scheme if they were specifically named in a coal mining industry award or if they were a party to an enterprise agreement that incorporated the scheme. This provided certainty about the employers and employees who were covered. However, in late 2009 legislative changes were rushed through Parliament in a few days without any consultation with the Australian Industry Group or other representatives of businesses in the metal, vehicle, electrical and other industries, which provide services to coal mining customers but were never covered by the Coal LSL Scheme or coal industry awards. The legislative changes resulted in the coverage of the scheme being moved into legislation from 1 January 2010. In a rushed and inadequate attempt to provide some detail on what
types of employees are in and out of the scheme, the coverage definitions in the legislation refer to the coverage clause in the Black Coal Mining Industry Award 2010. This approach was adopted even though at that time the coverage provisions in the Black Coal Award were not settled and the draft coverage provisions were strongly criticised by a Full Bench of the Australian Industrial Relations Commission (now the Fair Work Commission). The Full Bench said “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”. The definition of ‘black coal mining industry’ in the Award includes the ridiculous wording that “black coal mining industry has the meaning applied by the courts and industrial tribunals”. A recent judgment of Justice White of the Federal Court included the polite understatement that these words are “not altogether helpful”. His Honour said that the words imply that a single meaning of the term has been recognised in decisions of courts and tribunals but this is not the case.
