Coal Industry Superannuation Act 1989

Mine worker (section 4(1)) is the central defined category. It includes: (a) persons employed in the coal mining industry of Western Australia under an industrial instrument (defined in section 4(3) to include awards and agreements under the Industrial Relations Act 1979 or the Fair Work Act 2009 (Cth)); (c) elected officials of a registered organisation whose membership is principally mine workers and who have been employed in a coal mine for at least five years; (d) persons employed (by service agreement or subcontract) by a contractor working in or about an open cut or coal mine; and (e) certain small contractors who are principally engaged in excavation, overburden removal, coal winning, or coal transport, use not more than one vehicle, and employ no other persons. The definition expressly excludes directors of a company that owns a coal mine (paragraph (f)) and superintendents or instructors of mine rescue corps (paragraph (g)). The Governor may extend the definition by regulation (section 4(2)).

Employer (section 3(1)) means a natural person, firm or body corporate that employs mine workers. This includes both mine operators and contractors who employ persons falling within paragraph (d) of the mine worker definition.

Scheme means the superannuation scheme constituted by the Act (section 3(1)). It is not a separate legal entity; it is the statutory arrangement whose content is in the superannuation rules.

Superannuation rules means the rules made by regulations under section 7A(1) (section 3(1)). These rules are the heart of the scheme. They must provide for membership, employer participation, benefits, contributions, and may include provisions for consistency with the SIS Act (section 7A(3)).

Designated fund means a regulated superannuation fund that the Governor designates by regulation under section 7B. Contributions are paid to it and benefits are provided through it. The fund must be a successor fund in relation to a transfer of benefits from the previous fund (section 7B(2)(b)). The Minister must be satisfied on those points before designation.

SIS Act means the Commonwealth Superannuation Industry (Supervision) Act 1993 and its regulations (section 3(1)). This is the primary Commonwealth regulatory framework for superannuation funds. The scheme must be structured to be consistent with it.

Scheme contributions and scheme benefits follow the meanings in the superannuation rules. The Act itself does not prescribe amounts or conditions; those are left entirely to the regulation-making power.

The Act directly affects three groups: mine workers, employers, and the trustee of the designated superannuation fund. Mine workers as defined by section 4 are the intended beneficiaries of the scheme. They are required to become members if the superannuation rules so provide (section 7A(2)(a)), and they must pay contributions at rates or amounts set by those rules (section 7A(2)(e)). The definition is broad: it covers employees under industrial instruments (including those covered by Commonwealth enterprise agreements), certain union officials with a five-year employment history in coal mines, employees of contractors working in or about a coal mine, and solo contractors using one vehicle. It does not cover company directors of coal-mine owning companies or mine rescue instructors. The breadth means that a significant portion of the Western Australian coal mining workforce is captured, including those not directly employed by the mine owner but working through labour hire or subcontract arrangements.

Employers are any entity that employs one or more mine workers. They are required to participate in the scheme (section 7A(2)(b)) and to pay contributions (section 7A(2)(e)). This obligation is mandatory; an employer cannot choose to opt out or offer an alternative superannuation arrangement, at least as far as the Act is concerned. The employer must contribute to the designated fund at the rate set by the superannuation rules. This imposes a direct cost on employers and adds to the overall cost of employing labour in the coal industry. Unlike a standard award or agreement superannuation requirement (which usually nominates a fund chosen by the employer or by negotiation), this Act binds the employer to a fund designated by regulation, removing the employer's choice.

The trustee of the designated fund is obliged to provide the scheme benefits (section 7B(2)(a)(ii)). The trustee must accept contributions from members and employers, manage the fund, and pay benefits in accordance with the superannuation rules and the fund's governing rules, subject to the SIS Act. The trustee may be a corporate trustee or a board of trustees, but the Act does not prescribe its structure.

Indirectly, the Act affects other entities. If the designated fund is changed, the trustee of the predecessor fund must facilitate the successor fund transfer (section 7B(2)(b)). The Act also interacts with industrial relations bodies, as the definition of industrial instrument draws on State and Commonwealth workplace laws. The review provision (section 32) imposes a periodic assessment burden on the Treasurer.

Employer duties. The primary duty is to participate in the scheme (section 7A(2)(b)). The superannuation rules will spell out the mechanics: when membership starts and ends, what contributions are required, and how they are paid. The employer must pay contributions at the specified rate. There is no opt-out. The Act also provides protection for employers: nothing in the Act affects their right to terminate employment (section 28(1)), and membership of the scheme is not a guarantee of continued employment. Section 28(2) is important: no right or expectation of future accrual of a benefit under the scheme may be used to inflate damages in a wrongful dismissal action against the employer. That provision limits the potential liability an employer might otherwise face if a dismissed worker argued they lost future superannuation benefits.

Mine worker duties. Mine workers must become members of the scheme if the rules require it (section 7A(2)(a)). They must pay contributions as specified (section 7A(2)(e)). The Act does not impose any further positive obligations on members. They must comply with the rules governing membership, which may include conditions for admission, continuation, and cessation of membership.

Member rights. Members have a right to receive scheme benefits as set out in the superannuation rules (section 7A(2)(c)). The rules may also provide for protection, adjustment, reduction, forfeiture, and application of benefits (section 7A(2)(d)). The Act itself does not guarantee any minimum benefit. Importantly, section 29 preserves a member's rights in relation to any claim for damages or compensation arising out of his or her employment. A benefit payable under the scheme is not affected by any damages or compensation payable to or in respect of the member (subsection (2)). This prevents double counting or reduction of the superannuation benefit by reason of a workers' compensation or common law damages award.

Trustee duties. The trustee of the designated fund must provide the scheme benefits (section 7B(2)(a)(ii)). This is a statutory obligation, but the Act does not prescribe the trustee's duties in detail; the SIS Act and general trust law apply. The trustee must also comply with the superannuation rules and the fund's governing rules.

Rights of the Governor. The Governor has broad regulation-making powers: to make superannuation rules (section 7A(1)), to designate and revoke a fund (section 7B), and to prescribe matters necessary for consistency with the SIS Act (section 31(l)). These powers are exercisable by regulation, meaning they can be changed without amending the Act itself, subject to disallowance by Parliament.

The Act as reprinted contains no penalty provisions. Part 3, which was deleted by the 2013 amendments, originally included sections 7 to 28A and 28B. Those sections almost certainly contained offence provisions and penalties for non-compliance, such as failing to pay contributions or providing false information, but they have been removed. The current Act is silent on enforcement. This is unusual for a compulsory superannuation scheme. The absence of penalties in the Act does not mean there is no enforcement mechanism. The superannuation rules made under section 7A may include penalty provisions, as they are regulations capable of creating offences. However, the Act itself does not authorise the imposition of criminal penalties beyond what is permitted by the Interpretation Act 1984 (WA) for regulations generally. The SIS Act also imposes its own civil and criminal penalties for superannuation fund trustees and employers who fail to comply with contribution obligations or other requirements. The designated fund, being a regulated superannuation fund, must comply with the SIS Act, and the Australian Prudential Regulation Authority (APRA) may take enforcement action for breaches. For employers, the superannuation guarantee regime under the Commonwealth Superannuation Guarantee (Administration) Act 1992 still applies if the employer fails to make the required minimum contributions. However, the WA Act does not duplicate those provisions.

The review provision (section 32) includes consideration of the requirement for employers to pay contributions, but it does not create enforcement powers. The practical enforcement of contribution obligations under the scheme therefore likely relies on the superannuation rules, the trust deed of the designated fund, the SIS Act, and the usual industrial and employment remedies (such as underpayment claims in the Industrial Relations Commission or the Fair Work Commission). The Act's silence on penalties creates a compliance risk: if the rules are not specific, there may be no effective mechanism to compel employer contributions beyond the Commonwealth superannuation guarantee system. The Treasurer's review may address this gap.

The primary interaction is with the Commonwealth Superannuation Industry (Supervision) Act 1993 (SIS Act). The Act defines the SIS Act in section 3(1) and includes multiple provisions aimed at ensuring consistency. Section 7A(3) permits the superannuation rules to include any provision necessary or convenient for consistency with the SIS Act. Section 7B(4) does the same for the designation regulations. Section 31(l) extends the general regulation-making power to matters necessary for SIS Act consistency. This means the entire scheme must operate within the SIS Act framework: the designated fund must be a regulated superannuation fund, contributions must be made in accordance with SIS Act standards, and benefits must comply with preservation and cashing rules. The SIS Act's sole purpose test, arm's length rules, and trustee duties will apply to the designated fund.

The Act interacts with industrial relations laws through the definition of mine worker. Paragraph (a) of the definition refers to employment "in terms of an industrial instrument". Section 4(3) defines industrial instrument to include awards and agreements under the Industrial Relations Act 1979 (WA) and the Fair Work Act 2009 (Cth), as well as transitional instruments. This means changes to those laws or to the coverage of specific industrial instruments can affect who is a mine worker. The definition of registered organisation for union officials also draws on Commonwealth and State registration laws.

Section 28 interacts with employment law. It expressly preserves an employer's right to terminate a member's employment and prevents the fact of membership from being a guarantee of continued employment. Subsection (2) prevents any claim for lost future superannuation benefits from increasing damages for wrongful dismissal. This limits the potential common law liability of employers.

Section 29 interacts with workers' compensation and common law damages. A member's benefits under the scheme are not reduced or affected by any damages or compensation they receive from the employer. Conversely, the scheme benefits do not extinguish or reduce the member's right to sue. This is important for coal mine workers who may suffer workplace injuries and receive both superannuation benefits (such as total and permanent disability benefits) and workers' compensation.

The Act also interacts with the Coal Industry Superannuation Act 1987 (NSW)? No, that is a different State. There is no interaction mentioned in the WA Act. The Act stands alone as a Western Australian law.

Finally, the Act interacts with the Commonwealth superannuation guarantee regime. Employers in the coal industry must still comply with the Superannuation Guarantee (Administration) Act 1992. If the scheme contributions under the WA Act meet or exceed the compulsory superannuation guarantee percentage, the employer will have satisfied both obligations. If the scheme rate is lower, the employer must top up to the guarantee rate. The Act does not address this interaction, but it is a practical overlay.

The Coal Industry Superannuation Act 1989 received Royal Assent on 12 December 1989 and commenced (other than sections 1 and 2) on 1 July 1990. It has been amended multiple times. The compilation table lists the following significant amendments:

• Acts Amendment (Public Sector Management) Act 1994 (No. 32 of 1994), section 19, effective 1 October 1994. This made minor changes relating to public sector management.

• Acts Amendment (Coal Mining Industry) Act 1994 (No. 45 of 1994), Part 2 and section 19, effective 22 September 1994 (Part 2) and 16 November 1994 (section 19). This amended the definition of mine worker and other provisions.

• Mines Safety and Inspection Act 1994 (No. 62 of 1994), section 109, effective 9 December 1995. This made a consequential amendment to the mine worker definition.

• Coal Industry Superannuation Amendment Act 1995 (No. 46 of 1995), effective 15 May 1996 for most provisions. This made substantial changes to the scheme, including the contribution and benefit provisions then in Part 3.

• Trustees Amendment Act 1997 (No. 1 of 1997), section 18, effective 16 June 1997. This made minor trustee-related amendments.

• Coal Industry Superannuation Act Amendment Order 2000, published in the Gazette 29 September 2000. This amended Schedule 1 (since deleted) by order under section 3(2).

• Coal Industry Superannuation Amendment Act 2006 (No. 16 of 2006), effective 14 June 2006. This inserted the long title and made other changes.

• Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006), Schedule 1 clause 25, effective 1 February 2007. This made minor financial amendments.

• Standardisation of Formatting Act 2010 (No. 19 of 2010), section 4, effective 11 September 2010. This was a formatting change.

• Coal Industry Superannuation Amendment Act 2013 (No. 19 of 2013). This was the most significant amendment. Part 1 commenced 4 November 2013, Part 2 on 5 November 2013, Parts 3 and 4 on 30 June 2014, and Part 5 on 31 October 2014. It deleted Part 3 (sections 7 to 28A and 28B) and all schedules (Schedule 1, 2, 3). It inserted the current Part 2 (sections 7A and 7B), added section 32 review provision, and amended definitions. This transformed the Act from a detailed regulatory scheme into an enabling framework.

• Mines Safety and Inspection Amendment Act 2014 (No. 33 of 2014), Part 3, effective 6 June 2015. This made a minor consequential amendment to the mine worker definition.

The reprints: Reprint 1 as at 8 December 2000; Reprint 2 as at 4 August 2006; Reprint 3 as at 1 April 2016 (the current version).

The effect of the 2013 amendments was radical: the Act was gutted of its substantive provisions. All contribution tables, benefit scales, and procedural rules were removed. The scheme now relies entirely on regulations made under the new enabling provisions. The rationale for this change is not stated in the Act itself, but it likely reflects a desire to allow the scheme to be updated more flexibly and to align with the SIS Act. The long title was inserted by the 2006 amendment to clarify the Act's scope.

The Act as reprinted does not refer to any court cases, tribunals, or judicial interpretations of its provisions. The compilation table and notes contain no annotations of litigation. This is not unusual for a State superannuation Act that has been stripped of its substantive content. The original Part 3 may have generated disputes over contribution rates, benefit calculations, or employer compliance, but those provisions are now repealed. The current Act is so skeletal that there is little to litigate: the real disputes would arise under the superannuation rules, which are not part of the Act. Those rules are regulations and can be challenged on administrative law grounds (such as ultra vires or unreasonableness) if they exceed the scope of the enabling power. The successor fund requirements in section 7B(2) could also give rise to a dispute if the Minister purported to designate a fund that was not genuinely a successor fund. The protection of employer termination rights in section 28(2) has been tested in the context of wrongful dismissal claims: the section insulates employers from claims that lost superannuation accrual should increase damages. There are no reported cases on this point in the Act itself, but the principle is consistent with common law treatment of discretionary or future benefits. The interaction with workers' compensation (section 29) is also unlikely to be litigated under this Act alone, as it merely preserves existing rights. A practitioner searching for case law would need to look at decisions concerning the superannuation rules or the designated fund, not the Act itself. The absence of litigation history in the source is consistent with the Act's current form as a bare enabling statute.

The most significant gotcha is that the Act contains almost no operative detail. The superannuation rules and the designation of the fund are made by regulation, not by the Act. Anyone relying on the Act alone for a complete picture of their rights and obligations will be misled. The key documents are the Coal Industry Superannuation Regulations (which contain the superannuation rules) and the trust deed of the designated fund. Those regulations are not included in this reprint. An employer cannot determine what contributions to pay or to what fund by reading only the Act. The Act empowers the Governor to set those matters, and they can be changed at any time by regulation without amending the Act. This creates regulatory risk: the contribution rate, benefit structure, or fund designation can shift with limited parliamentary oversight (regulations are subject to disallowance but not to the full amendment process).

The definition of mine worker in section 4 may catch persons who do not expect to be covered. For example, a contractor who uses one vehicle and employs no persons is a mine worker (paragraph (e)). But if that contractor later hires an employee, the contractor ceases to be a mine worker (because the condition in paragraph (e)(iii) is that the contractor does not employ any person). The contractor's employee may then be a mine worker under paragraph (d). This can cause confusion over who owes contributions. Also, solo contractors might not realise they are classified as mine workers and may be required to make contributions on their own behalf.

Another gotcha: the Act preserves the employer's right to terminate employment (section 28) and prevents the scheme from guaranteeing continued employment. But it also makes employer participation compulsory. This means an employer cannot refuse to pay contributions even if the business is struggling or if the mine is closing. The obligation to pay contributions continues as long as the employer employs mine workers. There is no opt-out or exemption provision in the Act.

The successor fund requirement in section 7B(2)(b) means that if the designated fund is changed, the new fund must accept a transfer of benefits from the old fund. This protects members' existing benefits, but it also means that if the Minister cannot find a willing successor fund, the designation cannot be revoked (since section 7B(3) requires a simultaneous designation). This could create a lock-in effect: the current fund becomes irreplaceable if no other fund is willing to accept the transfer on commercial terms. Members and employers then have no choice but to remain in the existing fund even if it is underperforming or high cost.

One more subtle point: the definition of "superannuation fund" in section 3(1) means a regulated superannuation fund within the meaning of the SIS Act section 19. Section 19 defines a regulated superannuation fund as one that has more than four members unless it is a small APRA fund or an exempt public sector superannuation scheme. The designated fund must meet this definition, but the WA Coal Industry Superannuation scheme may itself be an exempt public sector superannuation scheme under the SIS Act. If it is, then the SIS Act's sole purpose test and other requirements still apply, but the fund may be exempt from some operational rules. The interaction is complex and not clarified in the Act.

For a person or entity subject to the Act, compliance requires identifying whether you are a mine worker or an employer under the definitions, then following the superannuation rules as they exist in the current regulations. Since the Act itself does not contain the rules, the practical steps are as follows.

Step 1: Determine if the Act applies. Check the definition of mine worker in section 4. For employers, if you employ any person who meets that definition, you are an employer under the Act. This includes coal mine operators, contractors who employ workers in or about a coal mine, and even head contractors whose subcontractors employ workers in the mine. For workers, if you are employed under an industrial instrument in the coal mining industry, you are likely a mine worker. Solo contractors using one vehicle and no employees must also assess their status.

Step 2: Identify the designated fund. Section 7B provides that the Governor designates a superannuation fund by regulation. You must find the current designation regulation (likely the Coal Industry Superannuation Regulations or a specific order published in the Gazette). That regulation will name the fund (for example, the Coal Industry Superannuation Fund or a successor). All contributions must be paid to that fund. Do not pay contributions to any other fund for the purposes of this scheme.

Step 3: Determine contribution rates. The superannuation rules (again, found in the regulations) will specify the amount or rate of contributions to be paid by employers and members. Section 7A(2)(e) requires the rules to specify this. The rates may be fixed amounts, percentages of wages, or determined by a prescribed procedure. Employers must calculate the contributions correctly and pay them to the designated fund within the timeframes set in the rules. Members must arrange for their share to be deducted from wages or paid directly.

Step 4: Ensure scheme membership. The superannuation rules will set out how membership is established. For employees, membership may be automatic upon commencing employment in the coal industry. For contractors and union officials, there may be an application process. Employers must facilitate membership by enrolling new employees and providing necessary information to the fund.

Step 5: Maintain records and comply with information requirements. Section 31(k) allows regulations to prescribe information to be provided in applications, returns, claims, elections, and other documents. Employers and members must comply with any such requirements. The designated fund will also have its own forms and information needs, likely including member details, contribution records, and beneficiary nominations.

Step 6: Understand the interaction with the SIS Act. The scheme must be consistent with the SIS Act (section 7A(3), 7B(4), 31(l)). This means that contributions must be paid on time to avoid SIS Act penalties and to ensure the contributions are deductible. The fund's trustee must comply with the SIS Act's investment, governance, and disclosure requirements. Employers should ensure that contributions are paid by the 28th day after the end of the quarter to meet the superannuation guarantee deadline.

Step 7: Monitor changes. The Act can be amended by regulation without a full parliamentary process. The Governor can revise contribution rates, change the designated fund, or alter membership rules. Employers and members should subscribe to WA legislation updates or check the Gazette regularly. The Treasurer must review the Act after the first designation regulations commence (section 32), which may lead to further changes.

Step 8: Preserve other rights. Section 28 and 29 protect the employer's right to terminate and the member's right to claim compensation. Employers should not assume that scheme contributions create any employment guarantee. Members should not assume that scheme benefits are a substitute for workers' compensation. Both rights are independent.