LEGISLATION designed to close a loophole in coalmining workers’ compensation law has created a problem for companies providing various everyday services to the coal industry, according to a major employers’ group.
Australian Business Lawyers and Advisers, a subsidiary of the NSW Business Chamber, says businesses whose employees enter mine sites for something as simple as a delivery job may have to take out two sets of workers’ compensation insurance: one policy for the time they spend at a mine site and one for all their other work.
ABLA’s Newcastle spokesperson, Kyle Scott, said on Monday the situation followed changes to the coal industry workers’ comp system that were introduced on July 1 with a transition period until October 1.
The legislation, the Coal Industry Amendment Act 2018, was designed to close a legal loophole caused by a 2014 court case that had allowed labour hire firms to move away from the supposedly compulsory coal industry workers’ comp scheme run by Coal Mines Insurance or CMI.
CMI is a subsidiary of Coal Services (formerly the government-owned Joint Coal Board, which was handed to the Minerals Council and the Construction, Forestry, Maritime, Mining and Energy Union in 2001.
Coal Services is responsible for the health and safety of mineworkers and its compensation system charges premiums that recognise the health costs of long-term exposure to coal dust.
Mr Scott said the Minerals Council and the CFMEU were clearly consulted in the lead-up to the legislation but it seemed as though the “service companies” were not.
“As far as we are concerned, the amendment goes well beyond closing the loophole to arguably impact on a huge range of other businesses that supply services to the coal industry,” Mr Scott said.
He said the new definition of an “employer in the coal industry” as “any employer whose employees work in or about a coal mine” was too wide.
“Where employees spend some of their time working in or about a mine and the remainder working elsewhere, employers must now have two policies to cover that one worker,” Mr Scott said.
“They will also need to estimate the percentage of their employee’s total work activity in or about a mine, and then split and declare wages between the two policies.”
Mr Scott said the business chamber had written to the Resources Minister, Don Harwin, who had responded to say that it was not the intention of the legislation to rope in companies from outside of the industry.
He said that if the problem wasn’t fixed by regulation it would probably end up in the courts.
Asked about the chamber’s concerns, Mr Harwin said on Monday night that “the types of work that are required to have CMI coverage have remained the same, and have not been broadened under the recent amendment”.
“Workers engaged in non-mining related activities, and workers who are required to attend a coal mine site on an ad hoc or irregular basis in the course of their work, are not required to be covered by CMI,” Mr Harwin said.
Responding to ABLA’s concerns, a spokesperson for Coal Services said it had material on its website that clarified for things for employers.
As for holding two workers compensation policies, the spokesperson said this was already the case and had been since 2008.
The Coal Industry Amendment Act, which passed through NSW parliament in May, was championed by the Coalition and Labor alike as a fix for an industry with growing confusion over its workers compensation system.
In April, Resources Minister Don Harwin told parliament: “Given that the mining industry is increasingly moving towards a flexible contract workforce it is crucial that mine workers are afforded the same level of health and safety protection. Employers who are not using the Coal Mines Insurance scheme do not contribute funds to support the Coal Services health and safety monitoring of workers or the monitoring of dust and airborne contaminants. This puts coal mine workers at risk because of the difficulty in tracking health records and monitoring results over time.”
But former Mount Arthur contractor Simon Turner said on Monday that nothing has been done for people like him who had been injured while their employer was using “the wrong insurer”.
He said the industry was “still pretending that injured workers like us don’t exist”.
“The changes mean that an employer in the coal industry means any employer whose employees work in or about a coal mine,” Mr Turner said.
“That’s straight from the amendment bill. It’s also what I’ve pointed out from day one to everyone involved, starting with SIRA (State Insurance Regulatory Authority), Icare, CGU Insurance, GIO ,Chandler Macleod and WIRO (Workers Compensation Independent Review Office).
“Yet after almost three years of fighting this stuff, those of us who have been injured while our employer was not using Coal Mines Insurance as they should have been are still left where we are, still falling through the cracks with each organisation saying it’s not their job, or they don’t have jurisdiction, or they’ve already answered that question.”
Mr Turner’s plight and that of others in a similar situation attracted the interest of a specialist Canberra law firm, Adero Law, which has launched a class action to pursue the rights of present and past casual mineworkers it says have been substantially underpaid.