Australia: Briefing Note - Coal Mining Industry (Long Service Leave Funding) Corporation v Orica Australia Pty Ltd [2026] HCA 30

The recent decision of the High Court in Coal Mining Industry (Long Service Leave Funding) Corporation v Orica Australia Pty Ltd [2026] HCA 30 has confirmed by majority that employees engaged in shotfiring duties at a black coal mine are eligible employees for the coal industry portable long service leave scheme.

Background

The Coal Mining Industry (Long Service Leave Funding) Corporation (the Corporation) is a statutory corporation established under the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (the Act). It administers the long service leave scheme for ‘eligible employees’ in the black coal mining industry, allowing them to accrue long service leave across different employers (subject to certain conditions). 

The Act defines 'eligible employees' to include:

• (employer limb): 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
• (location limb): 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.

The Act defines 'black coal mining industry' to have the same meaning as in the Black Coal Mining Industry Award 2010 (the BCMI Award). Clause 4.3(g) of the BCMI Award provides that the black coal mining industry does not include the supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry (the Shotfiring Exception).

Orica Australia Pty Ltd (Orica) employs shotfirers who work at open cut black coal mines in New South Wales and Queensland.

A dispute arose about whether Orica's shotfirers were 'eligible employees' under the Act. The Corporation's position was that they are 'eligible employees'. Orica's position was that they are not. This matter was determined in the Federal Court. 

The Federal Court and Full Federal Court decisions

The key issue for determination was whether the Shotfiring Exception in clause 4.3(g) of the BCMI Award applies to both the employer limb and the location limb in the definition of 'eligible employees' in the Act. This is because if the Shotfiring Exception applies to both the employer limb and the location limb, then Orica's shotfirers will not be 'eligible employees' under the Act.

At first instance,¹ Perram J of the Federal Court held that Orica's shotfirers were ‘eligible employees’ under the Act because His Honour considered that the location limb should be interpreted as not being concerned with the character of the employer, and the Shotfiring Exception went only to that issue.

On appeal,² Collier, Snaden and Hatcher JJ of the Full Court held that Orica’s shotfirers were not currently ‘eligible employees’ under the location limb because the Shotfiring Exception applied. However, they found the shotfirers were eligible employees during the period of March 2013 to February 2022 as Orica was ‘otherwise engaged in the black coal mining industry’ (for the purposes of the Shotfiring Exception) because during this time Orica had integrated the ‘Minova business’ which focused exclusively on providing services to the black coal mining industry.

The Corporation appealed the decision of the Full Court to the High Court. Orica also sought leave to cross-appeal in relation to the Full Court’s decision that it was ‘otherwise engaged in the black coal mining industry’ for the period of March 2013 to February 2022.

The High Court decision

By a majority of Gageler CJ, Gordon and Jagot JJ (with Steward and Gleeson JJ dissenting), the High Court allowed the Corporation's appeal and held that the Shotfiring Exception in clause 4.3(g) of the BCMI Award does not apply to the location limb of the definition of 'eligible employees' in the Act, and so Orica's shotfirers are 'eligible employees' under the location limb.

The majority reached this decision on the basis that:

• The employer limb includes the words ‘by an employer engaged in the black coal mining industry’. The location limb only includes ‘employed in the black coal mining industry’ with no reference to the employer’s industry. These are important points when interpreting the relevant provisions.
• The distinction between the employer limb and the location limb reflects a longstanding purpose of the Act, which is to allow employees to accrue long service leave based on continuous employment in the black coal mining industry regardless of changes in their employer. The location limb being independent of the employer’s industry enables employees to, within the black coal mining industry, move between employers without interrupting their qualifying service.
• Although the Act was amended from 1 January 2010 to include the definition of the ‘black coal mining industry’ by reference to the BCMI Award, this effectively clarified the existing position (shotfirers who were within the location limb continued to be ‘eligible employees’). 

Key implications for employers

The key implication for employers is that, when assessing whether an employee is an eligible employee under the location limb in the Act, the Shotfiring Exception in clause 4.3(g) of the BCMI Award is not relevant and does not exclude employees from coverage of the Coal LSL scheme. If employers have adopted a different approach, including in reliance on the Full Court decision, then they should update their position and processes to reflect this High Court decision. 

The BCMI Award also includes in clause 4.3(a), (c), (e) and (f) a number of other carve-outs from the definition of black coal mining industry in addition to the Shotfiring Exception. This includes carve-outs for "construction work on or adjacent to a coal mine site" and "haulage of coal off a coal mining lease (unless such haulage is to a wash plant or char plant in the vicinity of the mine)" among others. While the High Court decision does not directly address those other carve-outs, the judgment of Gageler CJ and Jagot J suggests that they are in a different category as they concern activities only rather than the character of the employer.³ As such, it appears those other carve outs may still be relevant to the location limb. That said, the practical impact of this is likely to be limited given many of those carve-outs will not be practically relevant to work undertaken at a coal mine where the location limb would otherwise potentially be engaged.

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

2. Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2025] FCAFC 65.

3. Coal Mining Industry (Long Service Leave Funding) Corporation v Orica Australia Pty Ltd [2026] HCA 30 at [72].