(a) certain provisions of those Acts do not apply to the workers compensation company, and
(b) that company is taken to be the insurer of all employers in the coal industry (whether or not the employer maintains a policy of insurance with the company), and
(c) an employee or a deemed employee of such an employer is not eligible to make a claim under the Uninsured Liability and Indemnity Schemes constituted by those Acts.
30 CMI submitted that this history and the terms of the 1987 Act, in particular s 7A(2) and (3), indicate the purpose of s 7A(4). It was submitted that s 7A(2) reflects how CMI is treated differently from other WorkCover insurers and self-insurers. This difference can be seen in relation to the provisions dealing with the uninsured liability and indemnity scheme, the recovery of penalties from employers who fail to obtain policies, and insurance premiums, licensing insurers, statutory funds and insurer guarantee fund. Under s 7A(3) an employee of an employer in the coal industry is not eligible to make a claim on the uninsured liability and indemnity scheme. It was submitted s 7A(4) can be understood to be there to ensure that if an employer in the coal industry did not have a policy of workers compensation insurance (with CMI: see the Coal Industry Act 2001 (NSW), s 31) an employer of such an employee could still claim against CMI.
31 This background advances the resolution of the relevant question of statutory interpretation (being the meaning of "employer in the coal industry") to only a small degree. It is clear that the Joint Coal Board administered a joint government controlled monopoly of workers compensation insurance and that this was transferred to an industry controlled (that is union and employer) monopoly. The issue is what was and is that monopoly: of insurance to companies bearing some characteristics to enable them to be called employers in the coal industry; or of insurance to companies which employed people in the coal industry and in that sense which were employers in the coal industry?
32 It was submitted by CMI that the latter of these constructions, being that which was favoured by Central West and Allianz, required the insertion of words into the statute, a process not lightly to be undertaken and only when there has been inadvertence by Parliament: Kingston v Keprose Pty Limited (1987) 11 NSWLR 404. Whilst that principle of construction can be accepted for present purposes, I do not agree that the appellants' argument requires its application. The relevant process is one of construction and interpretation of the words used. Neither contending alternative requires the insertion of words, only the ascription of meaning.
33 The decision of this Court in Ellavale Engineering v Pilgrim concerned the meaning of the phrase "a worker employed in or about a mine" in the 1987 Act, Sch 6 Pt 18. The Court refused to limit the class of workers covered by that phrase to a worker (a "coal miner") employed by a mine operator. The Court noted (see [2005] NSWCA 272; 2 DDCR 744 at 763-4 [63] per Beazley JA) that Sch 6 Pt 18 Ch 1 lacked the words used in s 7A(4): "of an employer in the coal industry". At [86] Beazley JA did not necessarily see any incongruity in a worker obtaining benefits as a worker employed in or about a mine and that worker's employer not being "an employer in the coal industry". Her Honour said at [86] and [88]:
[86] A question also arose as to whether the appellant was "an employer in the coal industry" within the meaning of s 7A(4) of the WCA. As I understand the argument, there could be an incongruity if the respondent was a coal miner within the definition but the appellant was not an employer in the coal industry. For my part, I do not consider there to be an incongruity, or at least one relevant to the interpretation of "coal miner". The provisions operate independently and are directed to quite different ends. Sch 6 Pt 18 of the WCA is directed to preserving benefits for certain categories of persons. Sections 7A and 9A are directed to the question of who bears the burden of insurance in the coal industry. That this is so reinforces, in my opinion, the respondent's argument that the definition of "coal miner" bears the meaning for which he contends.
…
[88] I should also add that the insurance arrangements relating to employers in the coal industry are not straightforward. For example, s 7A(4) of the WCA provides that the workers compensation company (that is, Coal Mines Insurance) "is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company)". Apart from the argument that arose in relation to the insurance provisions of the WCA referred to above, there was no evidence before the Court at first instance as to how insurance relating to employers in the coal mining industry operates. Nor was there any evidence as to how, why or whether insurance arrangements peculiar to the coal mining industry affected the construction of the phrase "coal miner" within Sch 6 Pt 18. If it were relevant, the Court would have expected there would have been evidence on the point as well as submissions to this Court based on such evidence. In the absence of evidence having been adduced I would not be prepared to entertain any argument that the construction of "coal miner" within Sch 6 Pt 18 was affected by any special insurance provisions or concerns peculiar to the coal mining industry. It is worth commenting in any event that the setting of premiums for workers compensation insurance purposes is a complex and in some respects artificial exercise: see Staging Connections Pty Limited v WorkCover Authority of New South Wales [2004] NSWCA 357.
34 Pilgrim's case does not ultimately assist with the resolution of the present problem.
35 The text and immediate enactment history of the 2001 amendments to the 1987 Act, Sch 6 Pt 18 cl 3(4) and s 7A, and the WIM Act, s 9A is important. Clause 3(4) in Sch 6 Pt 18 was inserted by Sch 4.1 [2] of the Workers Compensation Legislation Amendment Act 2001 (NSW), which received assent on 17 July 2001. Clause 3(4) contained a definition of the phrase "coal miners" for the purpose of cl 3, which made the 2001 amendments to the 1987 Act inapplicable to "coal miners". The phraseology used was "workers employed in or about a mine" being the phraseology used in cl 1 already. These amendments commenced on 1 January 2002. Later in 2001, the Coal Industry Act 2001 (NSW) (assented to on 14 December 2001) inserted s 7A into the 1987 Act and s 9A into the WIM Act. The Coal Industry Act 2001 (NSW) also commenced on 1 January 2002. These near contemporaneous, and cognate, statutes used this different terminology.
36 Though the positing of different terminology that could have been used by Parliament can be of limited utility, here the phrase "all employers in the coal industry" was used, not "all employers of coal miners" or "all employers who employ workers who are employed in or about a mine".
37 Recognising ultimately that the enquiry as to meaning is text based, the task is to give context to the phrase "employers in the coal industry". It is not the employee that is to work in the industry, but the employer must be "in" the industry. The employer is a person or entity. It must employ a worker or workers to be an employer, but it, as a person or entity, must be "in" the coal industry. This can be seen to involve at least two enquiries: first the nature and limits of the term "coal industry"; and, secondly, the relationship between the employer and the coal industry such that it can be said that the former is "in" the latter.
38 Whilst they cannot be taken to govern or legally bind this Court since they concern different provisions and different words, a number of cases give assistance in the resolution of the problems by the consideration of similar expressions. In The King v Central Reference Board; Ex parte Thiess (Repairs) Pty Limited [1948] HCA 9; 77 CLR 123 a question arose whether a company whose sole business was the repair of machinery could be said to be engaged in, or to be in, the coal mining industry. Its business was situated not far from a coal mine operated by a sister company (all the shares in the two companies being owned by the one person). The question was relevant because the Central Reference Board had authority only to deal with disputes "in the coal mining industry". After discussing the meaning of the phrase "coal mining industry" at 130-131, and the factual circumstances at 131-134, Latham CJ turned, at 135, to the question whether the company was "engaged in the coal mining industry" where he said:
Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company's work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering workshop which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry.
In my opinion the question to be asked is - What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty Ltd. That employer is not engaged in coal-mining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contacting party (Thiess Bros Pty Ltd), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry. In my opinion the evidence in this case shows that Thiess (Repairs) Pty Ltd did not employ Belmar in the coal-mining industry. As already stated, the Central Reference Board can make an order only in relation to certain matters in or in connection with that industry, and therefore the Board had no jurisdiction to make the order for the reinstatement of Belmar.