High Court confirms long service leave coverage for shotfirer workers

On 9 September 2026, the High Court of Australia handed down its decision in Coal Mining Industry (Long Service Leave Funding) Corporation v Orica Australia Pty Ltd [2026] HCA 30. For those employers working within the black coal mining industry, it provides useful guidance on determining when certain employees will be covered by the black coal portable long service leave scheme.

The dispute was between Orica Australia Pty Ltd andthe Coal Mining Industry (Long Service Leave Funding) Corporation. This case addressed whether workers who perform shotfiring or other explosive services at black coal mines are covered by the portable long service leave scheme.

Orica employs shotfirers at open cut black coal mines in New South Wales and Queensland. Shotfiring involves placing high-powered explosives in holes in the ground which, when detonated, expose a black coal seam, enabling the extraction of black coal. The Corporation was established under the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) to administer and maintain the portable long service leave fund for the black coal mining industry.

The key issue in contention was whether Orica’s shotfirers are “eligible employees” under the Administration Act. If so, Orica is required to pay levies to the Corporation, based on the number of “eligible employees” they employ.

The definition of “eligible employee” in the Administration Act has two main “limbs”. The first is referred to as the “employer limb” and the second is referred to as the “location limb”:

• The “employer limb” covers 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.
• The “location limb” covers 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.

The definition of “black coal mining industry” refers to the meaning given in the Black Coal Mining Industry Award 2010. Clause 4.3(g) of the Award excludes from the “black coal mining industry” the “supply of shotfiring or other explosive services by an employer not otherwise engaged in the black coal mining industry”. As a result, the “location limb” does not require the employer itself to be engaged in the industry.

The key question for the High Court was whether this exclusion applies only to the employer limb of the definition of “eligible employee”, or whether it also catches the location limb.

At first instance,Perram J held the shotfirers were eligible employees, finding cl 4.3(g) was excluded from the location limb.[1] The Full Court of the Federal Court reversed, holding cl 4.3(g) applied to both limbs. However, the Full Court found that while Orica owned the “Minova” business, it was “otherwise engaged” in the industry, so shotfirers were eligible only during that period. [2]

The Corporation appealed to the High Court.

The High Court allowed the Corporation’s appeal by a 3-2 majority. The result is that Orica’s shotfirers are “eligible employees” under the Administration Act, and Orica must make levy payments to the long service leave fund in respect of those employees.

The majority held that clause 4.3(g) of the Award applies only to the employer limb of the definition of “eligible employee” and does not purport to make the status of the employer as “engaged in the black coal mining industry” relevant to the location limb. Orica’s shotfirers carry out their duties at or about a place where black coal is mined and those duties are directly connected with the day-to-day operation of a black coal mine, so they satisfy the location limb which is “decoupled” from the substantial character and overall activities of Orica’s business.

The High Court’s divergence on how clause 4.3(g) operates is worth examining because the differences illustrate how the relevant provisions will be interpreted going forward.

The Chief Justice and Jagot J applied a purposive approach to the Administration Act and the history of the Award. They held that the location limb of the definition of “eligible employee” was deliberately designed to be independent of the employer’s industry. The phrase “by an employer engaged in the black coal mining industry” appears only in the employer limb and is conspicuously absent from the location limb.

They reasoned that clause 4.3(g) assumes that an employer supplying shotfiring services or other explosive services to a black coal mine is an employer “engaged in” the black coal mining industry by reason of that supply. An employer being “not otherwise engaged in the black coal mining industry” means the employer also conducts activities which do not involve any supply of shotfiring or other explosive services to a black coal mine.

Gageler CJ and Jagot J also highlighted the principal purpose of the legislation, to provide workers with a right to accrue long service leave irrespective of changing employers. This construction aligns with the purpose of the Administration Act and avoids confining the definition such that all Orica’s shotfirers and all future shotfirers who would otherwise come within the location limb be excluded from coverage.

Gordon J agreed with the result and with the orders proposed by Gageler CJ and Jagot J but reached the same conclusion by a somewhat different analytical path. Her Honour placed particular emphasis on the text and structure of the provisions themselves, and considered that, by the introduction of the location limb, the legislature deliberately uncoupled the employee’s industry from the industry of their employer.

Gordon J considered there is a meaningful distinction between “the supply” of services by an employer and the work performed by the employees who actually deliver those services. Clause 4.3(g) is directed at whether an employer is “engaged in” the industry, a question about the employer’s business character that is only relevant to the employer limb. Her Honour also noted that the CFMEU v Dyno Nobel Asia Pacific Ltd decision of the Australian Industrial Relations Commission,[3] which clause 4.3(g) was introduced to address, was itself concerned with the industry of the employer rather than the status of individual employees. Reading clause 4.3(g) as applying only to the employer limb is, therefore, consistent with that history.

Steward J and Gleeson J both dissented, holding that clause 4.3(g) operates as a general exclusion applying to both limbs of the definition. Both considered that the clause was intended to preserve the outcome of CFMEU v Dyno Nobel, which had excluded Dyno Nobel’s shotfirers from the coal mining industry awards altogether.

Steward J gave weight to the award modernisation history and considered that the “status quo” the AIRC intended to preserve included excluding the shotfirers of employers such as Dyno Nobel and Orica. On the cross-appeal, Steward J agreed with the Full Court that Orica had been “otherwise engaged” in the coal mining industry while it owned the Minova business.

Gleeson J took a slightly different approach within the dissent. Her Honour agreed that clause 4.3(g) applies to both limbs but disagreed with Steward J on the cross-appeal. Gleeson J would have sent the Minova business question back to the Federal Court for reconsideration, arguing that the test for whether an employer is “otherwise engaged” in the industry should involve a “substantial character” assessment of the employer’s overall business. This divergence within the minority shows there was no consensus on exactly how the exclusion would operate in practice.

• The 3–2 majority provides a clear rule. The location limb of the definition of “eligible employee” stands on its own. If a worker’s 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, that worker is an eligible employee. The employer’s principal business activity is irrelevant under this limb.
• This has immediate practical consequences. Employers who provide specialist shotfiring and explosive services to black coal mines should review their workforce to identify any employees who may now be eligible employees under the Administration Act. Levy obligations to the Coal Mining Industry (Long Service Leave) Fund will apply in respect of those workers, and back-payments may also be relevant depending on the circumstances.
• Mine operators who engage third-party contractors should likewise consider whether those contractors’ on-site personnel fall within the scheme. While the levy obligation rests with the employer of the eligible employee, understanding the full scope of the workforce covered by the portable long service leave scheme is an important part of compliance planning.

Eligible Employee Status under the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth)

Following Orica [2026] HCA 30

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References

[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] [2005] AIRC 622.

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This article was co-authored by Frank Daly, Lawyer, in our Perth office.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation.

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