Coal Mines (Pensions) Act 1958

Mine worker. The term “miner” is defined in section 5 as “any person employed in or about a mine”. The Act does not define “mine worker” separately, but that phrase is used throughout Part III. The eligibility conditions in sections 104 and 105 refer to a person who is “engaged in the coal mining industry as a mine worker” or has “actually worked as a mine worker” in or about a coal mine in Victoria or Australia. The definition of “mine” in section 5 includes every shaft in the course of being sunk, every tunnel and road in the course of being driven, and all shafts, tunnels, roads, works, tramways and sidings, both below and above ground, in and adjacent to and belonging to a mine under the Act.

Owner, manager and agent. Section 5 defines “owner” broadly as the immediate proprietor, lessee or occupier of a mine or any portion thereof, but excludes a person who merely receives a royalty, rent or fine, or is merely the proprietor of a mine subject to a lease, grant or licence, or is merely the owner of the soil and not interested in the minerals. A contractor for the working of a mine is treated as an owner but does not exempt the actual owner from liability. “Manager” means the person having the management of the mining operations. “Agent” means any person appointed as the representative of the owner in respect of the mine, superior to a manager.

The Board. By section 100A, Part III is administered by a Board that administers a public sector superannuation scheme and is appointed by the Minister by notice in the Government Gazette. References in Part III to the Pensions Tribunal or the Tribunal are to be read as references to the Board, and references to the Chairman of the Tribunal are to be read as references to the President or Chairperson of the Board.

Permanent incapacity. Section 105(1) provides two alternative paths to a permanent incapacity pension. The first path requires proof that the mine worker has been incapacitated by an injury (not intentionally self-inflicted) arising after 31 December 1941, that by reason of that incapacity he is unable to continue as a mine worker and that the incapacity is likely to be permanent. The second path requires proof of at least 85 per cent permanent incapacity for work otherwise than by intentional self-inflicted injury, inability to continue as a mine worker, continuous engagement as a mine worker in Victoria for not less than 20 years immediately preceding cessation of employment, and payment of contributions to the fund for at least five years. A further proviso excludes persons whose employment ceased before the commencement of the Coal Mine Workers Pensions (Amendment) Act 1957 by reason of the incapacity from the second path.

Dependants. Section 106 identifies three categories for additional payments: a wife (until death or until she ceases to be his wife), each child and step-child under 16 who is totally or mainly dependent on the mine worker’s earnings (until age 16), and where no wife’s addition is payable, one female over 16 who is totally or mainly dependent on his earnings and caring for a child or step-child under 16 (until her death, marriage or cessation of dependency). Section 107(1) provides a pension to the widow or the female who would have received an additional payment, and also to the children, upon the death of a person who had been awarded or was eligible for a disablement or retiring pension, or of a mine worker whose death was due to injury not intentionally self-inflicted.

Commutation. Section 115A enables a person receiving a pension to elect in writing to convert the pension entitlement to a lump sum determined by the Board on actuarial advice.

Inalienability. Section 122(1) declares that a pension is absolutely inalienable, whether by way of sale, assignment, charge, execution, bankruptcy or otherwise. However, the proviso allows the Tribunal (the Board) to pay the whole or any portion of the pension to another person for the use of the pensioner or in satisfaction of any just debts or liabilities, with or without the pensioner’s consent. Section 122(2) makes it an offence to demand or accept from a pensioner any certificate, acknowledgment or undertaking that would constitute a legal or equitable assignment of or charge upon a pension.

Accident Compensation Tribunal. References to this Tribunal appear in sections 107(4), 113(5)-(9), 125 and 130. It has jurisdiction to hear appeals from determinations of the Board as to liability to contribute or eligibility for a pension (section 113(6)), and may award costs (section 113(7)). The Minister may refer any question arising under Part III to it (section 125(1)). Its decisions are final and conclusive (section 113(9)).

The Act directly affects a closed class of persons: those who were engaged in the coal mining industry as mine workers at the commencement of Part II of the Coal Mine Workers Pensions Act 1942 or at the date of retirement (section 104), and who meet the residence and work-day thresholds set out in that section. For the permanent incapacity pension under section 105, the affected persons are mine workers who became incapacitated after 31 December 1941 and meet the relevant conditions. Dependants of those mine workers - widows, children under 16, and certain female carers - are also beneficiaries under sections 106 and 107. Because the Act is effectively a legacy scheme, no new entrants appear possible; eligibility depends on service that largely predates the 1987 repeal of the operational parts of the Act. The Act therefore affects surviving pensioners and their dependants, as well as the Board appointed under section 100A to administer the scheme. The Accident Compensation Tribunal is affected as the appellate and referral body. The Minister responsible for the Act may refer questions to that Tribunal. The State of Victoria, through the Consolidated Fund, bears the financial obligation for all pensions and administrative expenses under section 119. Employers and former employers are only indirectly affected: the definitions of owner, manager and agent in section 5 were originally relevant to safety and levy provisions that have been repealed, but may still matter for determining who is an “owner” for the purpose of any residual liabilities or for establishing that a person was a mine worker in a particular mine. The Act also interacts with Commonwealth social security law and Victorian workers compensation law, so those administering those schemes need to be aware of the deduction provisions in sections 107 and 112.

Rights of mine workers and dependants. A mine worker who satisfies the conditions in section 104 has the right to a retiring pension of $102.30 per week (as adjusted under section 110). A mine worker who meets the permanent incapacity tests in section 105(1) has the right to a pension of the same amount, subject to reduction if he earns or could reasonably earn from available employment (section 105(2)). Dependants have the right to additional payments under section 106 and to a survivor’s pension under section 107. A person receiving a pension has the right under section 115A to elect in writing to convert the pension to a lump sum determined actuarially by the Board. Where a mine worker is not eligible for a pension under section 105 but proves permanent incapacity not due to his own deliberate act, he has the right to a refund of contributions (section 105(3)), though that refund forfeits prior service for future eligibility (proviso to section 105(3)). An applicant for a pension has the right, upon receipt of an adverse medical report, to obtain a second report from a registered medical practitioner mutually agreed with the Tribunal (proviso to section 105(4)). Any person aggrieved by a determination of the Board as to liability to contribute or eligibility for a pension has the right to appeal to the Accident Compensation Tribunal (section 113(6)), and that Tribunal may award costs (section 113(7)). The Minister may refer any question arising under Part III to the Accident Compensation Tribunal (section 125(1)), and all interested persons appearing are entitled to be heard (section 125(2)).

Duties and obligations. Every applicant for a pension must use the prescribed form, provide prescribed particulars, verify the application as prescribed, and lodge it with the Registrar (section 113(1)). The Registrar must investigate and report to the Board (section 113(2)-(3)). A mine worker who receives a refund of contributions under section 105(3) cannot count prior service for a future pension. The Board has a duty to allow, disallow or refer applications (section 113(5)). The Board may deduct from a pension any amount that the pensioner or a dependant is entitled to receive from a Commonwealth age, invalid or widow’s pension or wife’s allowance, or from any other pension while residing outside Victoria (section 112). The Board can also recover overpayments as a debt or adjust future instalments (section 127(1)). Persons must not make false statements or mislead the Board, Registrar, Accident Compensation Tribunal or any officer (section 130). No person may demand or accept an assignment or charge over a pension (section 122(2)).

The Act creates two principal offences. Section 130(1) provides that any person who, for the purpose of obtaining a pension for himself or another, or for obtaining exemption from any obligation under Part III, makes a false statement to or misleads or attempts to mislead the Tribunal, the Registrar, any officer concerned in the administration of Part III, the Accident Compensation Tribunal, or any other person, or otherwise commits any fraudulent act or omission, is guilty of an offence and liable to a penalty not exceeding $200 or imprisonment for 12 months. Section 130(2) empowers the court, upon conviction under subsection (1), to impose a penalty or additional penalty not exceeding twice the amount wrongly paid if it appears that the offence resulted in that wrongful payment. These penalties are modest by contemporary standards; the maximum fine of $200 has not been updated, but the imprisonment term of 12 months remains. Section 122(2) makes it an offence to demand or accept from a pensioner any certificate, acknowledgment or undertaking that would constitute a legal or equitable assignment of or charge upon a pension, if the pension were capable of being assigned. The penalty for that offence is a fine of not more than $100. Enforcement of these offences would be through the ordinary criminal courts, likely the Magistrates’ Court given the penalty levels.

Section 127 provides a civil enforcement mechanism for overpayments. Where a pension or instalment not payable has been paid, or a sum paid is in excess of the amount payable, the amount wrongly paid may be recovered as a debt due to the Tribunal at the suit of the Chairman of the Board in his official name. Alternatively, where practicable, the Board may make adjustments in future instalments of the same or another pension. This section does not relieve a person from other liability for fraud (section 127(2)). The Board can thus pursue recovery without needing to prove a criminal offence.

The Act does not create any regulatory enforcement body; instead, it relies on the Board to administer and on the Accident Compensation Tribunal for dispute resolution. The penalties are relatively low, reflecting the Act’s origin in 1958 and the fact that most pensions are now paid to a diminishing cohort.

The most significant interaction is with Commonwealth social security law. Section 112 requires the Board to deduct from a coal pension any amount that the pensioner or a dependant is entitled to receive from a Commonwealth age, invalid or widow’s pension, or a wife’s allowance, in respect of the same period. Similarly, other pensions received while residing outside Victoria are deducted. This provision prevents double-dipping from the Commonwealth and state schemes, but means that a coal pension may be substantially reduced if the recipient also qualifies for the corresponding Commonwealth pension. Section 110(3) links the coal pension amounts directly to movements in the Commonwealth Age, Invalid and Widows’ Pensions. When those are increased or reduced, the weekly amounts under sections 104, 105, 106 and 107 are varied by adding or subtracting an equivalent amount. Section 110(4) provides that the increase applies from the first full pay period after the Commonwealth increase is paid. Section 110(6) allows the Governor in Council to declare the varied amounts by Order.

The Act interacts with Victorian workers compensation law. Section 107(3) provides that a dependant who is eligible for a pension under section 107 shall not also be entitled to compensation under the Workers Compensation Act 1958 or the Accident Compensation Act 1985, or to damages recovered independently, in respect of the death of the mine worker. However, this disqualification is not absolute. Section 107(4) sets out detailed rules: if the mine worker had received lump sum compensation for injury, or a lump sum in redemption of weekly payments, the disqualification ceases after a period calculated by dividing the total compensation by a weekly rate determined by the Governor in Council. Similarly, if compensation for death was paid into the Workers Compensation Board or to the Accident Compensation Tribunal for administration, the disqualification ends after a like period. If dependants are entitled to compensation but have not yet applied, the disqualification continues until they apply. Section 107(5) deals with damages recovered independently of workers compensation, providing for a period to be determined by regulation.

The Act also references the Accident Compensation Act 1985 for procedural purposes: the power to make rules for the Accident Compensation Tribunal under that Act extends to proceedings under this Act (section 113(8) and section 125(3)). The definition of “registered medical practitioner” in section 105(5) refers to the Health Practitioner Regulation National Law. The Act’s funding from the Consolidated Fund under section 119 interacts with the Financial Management Act 1994 (as noted in the 1994 amendment to section 119). The repeal of most original provisions in 1987 removed interactions with other mining safety laws.

The Act has been amended numerous times since its original enactment as the Coal Mines Act 1958 (assented to 30 September 1958, commenced 1 April 1959). The most significant structural change was the Coal Mines (Amendment) Act 1987 (No. 6/1987), which renamed the Act to the Coal Mines (Pensions) Act 1958 and repealed almost all of Parts I and II, leaving only Part III and some definitions. Before 1987, the Act contained extensive mine safety, inspection and regulation provisions (e.g., sections 6-61, 62-72, 73-83) and a Part II that was repealed earlier. The 1987 Act also deleted many definitions (boy, check-inspector, Court, naked-light mine, overman, Part, plan, prescribed, regulations, safety-lamp mine, shaft, ventilating district) and repealed the schedules.

The pension provisions themselves have been amended many times to increase base amounts. For example, the original $102.30 per week for main pensions and $67 per week for the wife’s addition were set by a series of amendment Acts from 1959 to 1985: No. 6565/1959, No. 6703/1960, No. 7628/1967, No. 7718/1968, No. 7857/1969, No. 8005/1970, No. 8123/1971, No. 8171/1971, No. 8278/1972, No. 8316/1972, No. 8416/1973, No. 8791/1975, and No. 10182/1985. The Coal Mines (Pensions Increase) Act 1985 (No. 10182/1985) introduced the linking mechanism to Commonwealth social security increases, replacing fixed increases with the variable system in section 110(3)-(6).

The Financial Management (Consequential Amendments) Act 1994 (No. 31/1994) substituted a new section 119 providing for payment from the Consolidated Fund, and repealed section 120 (contributions to fund) and amended section 121. The Superannuation Acts (Amendment) Act 1996 (No. 4/1996) repealed former section 100. The Superannuation Acts (Further Amendment) Act 1996 (No. 82/1996) made major changes: it inserted section 100A (administration by Board), inserted section 115A (commutation), and repealed sections 101, 102, 108, 109, 111, 114, 115, 121, 123, 124, 126, 129, 131 and 132, streamlining the Act. The Medical Practice Act 1994 updated medical references, and the Statute Law Amendment (National Health Practitioner Regulation) Act 2010 inserted section 105(5) defining registered medical practitioner. The Statute Law Revision Act 2015 repealed the Schedule heading.

The Act itself does not cite any decided cases, but it establishes a detailed dispute resolution framework. The primary adjudicative body is the Accident Compensation Tribunal. Under section 113(6), any person aggrieved by a determination of the Board (acting as the Pensions Tribunal) as to liability to contribute or eligibility for a pension may appeal to the Accident Compensation Tribunal. The Tribunal hears the matter afresh and may award costs against the Board if it upholds the appeal (section 113(7)). Its decision is final and conclusive and binding on the applicant and the Board (section 113(9)). The Tribunal also has jurisdiction to hear applications referred to it by the Board under section 113(5) and to determine the pension rate and start date (section 113(11)). Section 125 allows the Minister to refer any question arising under Part III to the Accident Compensation Tribunal, where all interested persons may be heard. The power to make rules for the Tribunal under the Accident Compensation Act 1985 extends to proceedings under this Act (sections 113(8) and 125(3)). Additionally, section 105(4) requires medical questions about incapacity to be determined by the Board upon a report from a registered medical practitioner appointed by the Board, with a right of the applicant to obtain a second report. While the Act provides no further right of appeal beyond the Accident Compensation Tribunal, the phrase “final and conclusive” in section 113(9) would likely be read subject to any available judicial review for jurisdictional error or denial of natural justice. No specific litigation history is recorded in the Act, but practitioners should be aware that any challenges to Board decisions would follow the statutory appeal path to the Accident Compensation Tribunal, not the ordinary courts, unless constitutional or jurisdictional issues arise.

Several provisions contain traps for the unwary practictioner or claimant.

Pension rates are not fixed at the statutory figures. The dollar amounts stated in sections 104, 105, 106 and 107 ($102.30 per week, $67 per week, $14 per week) are outdated. Section 110(3) mandates that those amounts are varied automatically whenever the corresponding Commonwealth Age, Invalid or Widows’ Pension is increased or reduced. The current payable rates are those last declared by Order under section 110(6). A claimant or adviser relying on the printed Act without checking the current Governor in Council Order will significantly underestimate the pension.

Deduction of Commonwealth and other pensions. Section 112 requires the Board to deduct from the coal pension any amount the pensioner or dependant is entitled to receive from a Commonwealth age, invalid or widow’s pension or wife’s allowance. This is a mandatory deduction, not an optional offset. Similarly, other pensions received while residing outside Victoria are deducted. A person who also qualifies for a Commonwealth pension will therefore receive a reduced coal pension, possibly to nil. This interaction often surprises claimants who expect to receive both in full.

Dependant pension is reduced by workers compensation. Section 107(3)-(5) provides that a dependant eligible under section 107 shall not also be entitled to workers compensation or damages for the death. The disqualification lifts only after a period calculated by dividing the compensation or damages received by a weekly rate determined by the Governor in Council. This means a widow may have to wait many weeks before receiving the coal pension if a significant compensation payment was made. Practitioners handling fatal accident claims must coordinate both regimes.

The permanent incapacity alternative path is narrow. Section 105(1) provides a second path requiring 85 per cent permanent incapacity, 20 years continuous employment in Victoria, and five years of contributions. The proviso at the end of section 105(1) disallows that path if the mine worker’s employment ceased before the commencement of the Coal Mine Workers Pensions (Amendment) Act 1957 by reason of the incapacity. This cut-off date may prevent many older workers from using that path.

Refund of contributions forfeits past service. Under section 105(3), a mine worker who is not eligible for a pension but proves permanent incapacity may get a refund of contributions. The proviso states that if that person later returns to work as a mine worker, the prior period of employment cannot be taken into account under section 104 for eligibility. Taking a refund thus resets the clock.

Inalienability is not absolute. While section 122(1) declares pensions inalienable, the proviso permits the Board to pay the whole or part of the pension to another person for the pensioner’s use or in satisfaction of just debts or liabilities, with or without the pensioner’s consent. The Board thus has a statutory power to redirect pension payments, which could be used to satisfy debts. Section 122(2) makes it an offence to demand any document that would constitute an assignment, but the Board itself can effectively assign payments to creditors.

Appeals are to a specialist tribunal, not a court. Section 113(9) says the Accident Compensation Tribunal’s decision is final and conclusive. This may limit further review, though judicial review for error of law on the face of the record or jurisdictional error is likely still available. Parties should not assume a right of appeal to the Supreme Court on the merits.

Medical dispute resolution. Section 105(4) requires the Board to determine medical questions on a report from a registered medical practitioner it appoints. The applicant has a right to a second report from a mutually agreed practitioner, but only after an adverse report. If the Board receives an adverse report and the applicant does not exercise that right, the determination may proceed without further medical input.

Compliance with the Coal Mines (Pensions) Act 1958 falls primarily on the Board appointed under section 100A and on applicants for pensions. For a prospective pensioner, the key steps are:

1. Determine eligibility. A person seeking a retiring pension under section 104 must prove continuous residence in Victoria for the five years immediately preceding retirement and actual work as a mine worker for at least 60 days in each of those years, or satisfy the alternative test of residence in Victoria for at least five out of seven years, with at least 500 days worked in a coal mine in Australia in that seven-year period, and at least 60 days in each year of residence in Victoria including the twelve months before the relevant date. The Board must be satisfied that the employment was bona fide and not arranged solely to obtain a pension. For a permanent incapacity pension, the applicant must meet either the injury-based test or the 85 per cent incapacitation/20-year continuous service/5-year contributions test. The Act does not specify a time limit for applying, but the pension commences from the date of retirement or the commencement of Part II of the 1942 Act (section 104) or from cessation of employment or the 1942 date (section 105).

2. Prepare the application. Section 113(1) requires the application to be in the prescribed form (the Board will supply it), contain prescribed particulars, be verified as prescribed, and be lodged with the Registrar. The Registrar will investigate and submit a report to the Board (section 113(2)-(3)).

3. Provide medical evidence. For an incapacity claim, section 105(4) requires a report from a registered medical practitioner appointed by the Board. The applicant should cooperate with that process. If the medical officer’s report is adverse, the applicant should promptly request a second report from a mutually agreed registered medical practitioner, as the proviso to section 105(4) grants that right “before a determination is made”.

4. Disclose other benefits. The applicant must inform the Board of any entitlement to a Commonwealth age, invalid or widow’s pension, or to a pension from outside Victoria (section 112). Similarly, if the applicant or dependants have received or are eligible for workers compensation or damages in respect of the death or injury, that must be disclosed because it affects the coal pension (section 107(3)-(5)). Failure to disclose may lead to overpayment recovery under section 127.

5. Consider commutation. A person already receiving a pension may elect under section 115A to convert the pension to a lump sum. The amount is determined by the Board on actuarial advice. This may be advantageous depending on the pensioner’s circumstances, but the decision is irreversible.

6. Avoid offences. Section 130 prohibits false statements or misleading conduct in connection with an application. Penalties include up to 12 months imprisonment and a further penalty of up to twice any amount wrongly paid. All information provided must be accurate and complete.

7. Respond to Board determinations. If the Board disallows an application or makes an adverse finding on liability to contribute, the applicant may appeal to the Accident Compensation Tribunal under section 113(6) within the prescribed period (not specified in the Act but likely set by regulation). The Tribunal’s decision is final.

8. For the Board: It must administer the scheme in accordance with Part III, appoint a medical officer, investigate applications, determine eligibility, pay pensions from the Consolidated Fund, make deductions under sections 107 and 112, recover overpayments under section 127, and determine lump sums under section 115A on actuarial advice. It must also publish Orders under section 110(6) when rates are varied.