Coal Mining Industry (Long Service Leave) Administration Regulations 2018

These Regulations set out administrative particulars for the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the Act). They operate chiefly to prescribe (1) minimum qualifications and exclusionary criteria for any person or entity who is contracted to administer the Coal Industry Long Service Leave Fund (the Fund), in s 6; and (2) categories of eligible employees who may enter into waiver agreements under s 39B of the Act, in s 7. The instrument also repeals the earlier 1993 Regulations (Schedule 1) and fixes the commencement date as 1 July 2018 (ss 2 and Schedule 1). The Regulations are made under the Act (s 3) and incorporate definitions from the Act while adding a definition of “officer” for the purposes of the Regulations (s 5).

Mechanically, the Regulations require the Corporation that runs the Fund to be “satisfied on reasonable grounds” about certain matters before entering into, or continuing, a contract to administer the Fund. If the administrator is an individual, the Corporation must be satisfied about educational qualifications and experience, insolvency status, certain convictions, personal character and likely conduct (s 6(2)(a)-(e)). If the administrator is a corporate entity, the Corporation must be satisfied that the entity is not a Chapter 5 body corporate (Corporations Act 2001 concept) and, generally, that each officer of the administrator meets the individual requirements; the Board can nevertheless appoint a corporate administrator even if not every officer meets those standards provided the Board is satisfied the Fund’s administration will not be prejudiced (ss 6(3)-(4)). Section 7 prescribes six kinds of eligible employee who can enter waiver agreements under s 39B of the Act, including particular age-and-service bands, managerial and senior professional roles, salary thresholded employees (with a Consumer Price Index adjustment mechanism), and those on undergraduate or work training placements (s 7(a)-(f)). Section 8 makes s 6 applicable to administration contracts both in existence on 1 July 2018 and those entered into thereafter.

The Regulations therefore create gatekeeping criteria for administrators of the Fund and narrow, by category, which employees can waive long service leave entitlements under the Act. They replace the 1993 Regulations in full (Schedule 1).

The Regulations are short and focused on two core regulatory mechanisms: administrator qualification criteria and prescribed classes of employees who may execute waiver agreements.

Administrator qualifications (Part 2, s 6)

• Gatekeeping standard: the Corporation must be “satisfied on reasonable grounds” about specified matters before contracting with an administrator (s 6(1)-(3)). That phrase imports a reasonableness standard, leaving a measure of administrative judgment to the Corporation and the Board.
• Individual administrators: five discrete criteria are specified. The individual must have appropriate educational qualifications and experience (s 6(2)(a)); must not be insolvent under administration within the meaning of the Corporations Act 2001 (s 6(2)(b)); must not have been convicted within the last 10 years of an offence involving financial dishonesty (s 6(2)(c)); must be “of good fame and character” (s 6(2)(d)); and must be likely to be an “honest, efficient and fair administrator” (s 6(2)(e)). Those criteria mix objective and evaluative elements.
• Corporate administrators: the appointed corporate administrator must not be a Chapter 5 body corporate (s 6(3)(a)), and subject to s 6(4) each officer of that corporation must meet the individual criteria applicable to persons (s 6(3)(b)). The Board may nonetheless approve a corporate administrator even though one or more officers fail the individual tests, provided the Board is satisfied the Fund’s administration will not be prejudiced (s 6(4)).
• Temporal reach: s 8 applies s 6 to both pre-existing and future contracts (s 8(a)-(b)).

Prescribed employees and waiver agreements (s 7)

• Section 7 prescribes kinds of “eligible employees” for the purposes of s 39B of the Act. The categories are:
  • employees aged at least 55 with no qualifying service under s 39A (s 7(a));
  • employees aged at least 55 with at least 8 years’ qualifying service under s 39A (s 7(b));
  • managers of corporations that employ eligible employees in the black coal mining industry (s 7(c));
  • senior professional employees engaged in management of such corporations (s 7(d));
  • employees with an annual salary (including allowances) that met $174,700 in 2017 and thereafter is adjusted by CPI from 2017 (s 7(e)(i)-(ii)); and
  • persons employed under an undergraduate placement or work training placement (s 7(f)).
• The note in s 7 indicates that eligible employees of these kinds may make waiver agreements under s 39B; the Regulations do not set the content of waiver agreements, only who may enter them.

Primary decision-maker and regulator

• The primary decision-maker under the Regulations is the Corporation responsible for the Fund; the Corporation must make satisfaction decisions “on reasonable grounds” about proposed or existing administrators (s 6(1)-(4)). The Board of the Corporation has explicit residual discretion under s 6(4) to approve corporate administrators even if some officers fail the specified tests, provided administration of the Fund is not likely to be prejudiced.

Entities required to comply with checks

• Any person or corporation the Corporation proposes to contract with to administer the Fund (the administrator) is directly affected by the qualification criteria in s 6. Individuals who wish to act as administrators must meet educational, insolvency, criminal history and character standards (s 6(2)(a)-(e)). Corporations proposed as administrators must not be Chapter 5 body corporates (s 6(3)(a)) and are generally subject to officer-level vetting (s 6(3)(b)), subject to Board discretion (s 6(4)).

Employers in the black coal mining industry

• Employers who participate in the Fund and employ eligible employees in the black coal mining industry are indirectly affected by the waiver categories in s 7 because those provisions define which employees may enter waiver agreements with their employers (s 7 and the note following it). Employers will need to recognise the categories when negotiating waivers under s 39B of the Act.

Employees

• The Regulations directly affect specified classes of “eligible employees” by permitting waiver agreements only for the kinds listed in s 7. The categories include employees aged at least 55 with no qualifying service or with at least 8 years qualifying service (ss 7(a)-(b)); managers and senior professional employees engaged in management (ss 7(c)-(d)); high‑salary employees defined by a 2017 threshold of $174,700 with CPI adjustments thereafter (s 7(e)); and persons in undergraduate/work training placements (s 7(f)). Those categories determine who can contract out of long service leave entitlements via a waiver.

Corporations’ officers and persons with de facto control

• The Regulations’ definition of “officer” (s 5) extends to directors, executive officers and persons who have “control or substantial control” of a corporation. That definition widens the set of individuals whose histories and qualifications may be relevant to whether a corporate administrator satisfies s 6(3)(b), and therefore may affect owners or controllers who are not formally directors.

Duties imposed on the Corporation

• Duty to assess administrators on reasonable grounds: The Corporation must be satisfied on reasonable grounds about the specified criteria before entering into or continuing a contract to administer the Fund (s 6(1)-(3)). That places an evidential and decision-making duty on the Corporation to undertake due diligence and form a reasonable satisfaction in respect of proposed administrators.
• Board discretion: The Board retains an explicit discretion to appoint a corporate administrator even when some officers do not meet the individual criteria, conditioned only on the Board’s satisfaction that the Fund’s administration will not be prejudiced (s 6(4)). The duty here is to form and record such a satisfaction.

Rights and duties of individuals proposed as administrators

• Evidence obligations: Individuals must be capable of demonstrating appropriate educational qualifications and experience (s 6(2)(a)). They must also show they are not insolvent under administration (s 6(2)(b)), and that they have not been convicted within the last 10 years of an offence involving financial dishonesty (s 6(2)(c)). Those are factual matters requiring documentary proof.
• Character and conduct assessments: The Corporation must be satisfied the individual is of “good fame and character” and will be an “honest, efficient and fair administrator of the Fund” (ss 6(2)(d)-(e)). These are evaluative duties on the Corporation and correspond to rights of applicants to contest or clarify adverse assessments through administrative processes that the Act permits (the Regulations themselves do not specify appeal mechanisms).

Rights and limitations for corporations proposed as administrators

• Prohibition on Chapter 5 body corporates: The Corporation must be satisfied a corporate administrator is not a Chapter 5 body corporate (s 6(3)(a)). This is a disqualifier that limits who can be appointed.
• Officer-level vetting: Each officer of a corporate administrator is generally expected to meet the individual criteria (s 6(3)(b)). The Board may, however, exercise its discretion under s 6(4) to approve despite one or more officers not meeting the criteria, provided the Fund’s administration will not be prejudiced.

Rights of eligible employees regarding waiver agreements

• The Regulations delineate which classes of eligible employees may make waiver agreements under s 39B of the Act (s 7 and accompanying note). Those employees have the right to enter such agreements; the Regulations do not prescribe mandatory content of waiver agreements but define the right to be a party to them.

The Regulations do not themselves create criminal offences, monetary penalties or explicit enforcement mechanisms. The instrument operates primarily as a prescriptive schedule of qualifications and categories; it delegates substantive enforcement mechanics to the Corporation and to the Act under which it is made (s 3). The Regulations therefore rely on the Act’s existing enforcement architecture for compliance with the Fund’s administrative arrangements and any consequences of non-compliance.

Administrative enforcement and decisions

• The Corporation is given decision-making responsibility: it must be “satisfied on reasonable grounds” about proposed administrators, and the Board may exercise discretion in specified circumstances (s 6). The Regulations therefore place an administrative enforcement role on the Corporation insofar as it chooses whether to enter into or continue contracts with administrators who do or do not meet the criteria. The practical enforcement mechanism is contractual: the Corporation can refuse to contract, or can terminate existing arrangements if the Act’s powers permit.

Contractual remedies

• While the Regulations do not provide express contractual remedies for non‑compliance, the Corporation’s power to decide whom to contract with (and the non-applicability to Chapter 5 bodies corporate, s 6(3)(a)) means that contractual enforcement,refusal to appoint, renegotiation, termination,will be the main means of enforcing the administrator standards. The Regulations make s 6 applicable to contracts in existence on 1 July 2018 (s 8), so the Corporation may have scope under the Act and contract law to take action against existing administrators who fail to meet the tests, subject to contractual terms and statutory powers in the Act.

Waiver agreements and employee rights

• Section 7 prescribes who may enter waiver agreements under s 39B of the Act; the Regulations do not create penalties for entering waivers improperly, but by limiting the categories they function as preconditions to valid waiver agreements. Any invalid waiver (for a person not of a prescribed kind) would likely be a matter for the Act’s substantive provisions and any dispute resolution mechanisms it provides.

Regulatory gaps and enforcement risk

• Because the Regulations are silent on enforcement mechanisms, penalties, review rights or processes for challenging the Corporation’s satisfactions, enforcement risk resides largely in the Act and in ordinary administrative law channels such as judicial review, where available under the Act and the general law. The Regulations’ silence about recordkeeping, notification, or appeals increases the legal and operational uncertainty for those who are refused appointment or who dispute a waiver’s validity.

Direct statutory linkage to the Act

• The Regulations are made under the Coal Mining Industry (Long Service Leave) Administration Act 1992 (s 3) and explicitly operate for the purposes of specified provisions of that Act (notably s 39B, as referenced in s 7). The Regulations therefore function as subordinate legislation implementing and clarifying aspects of the Act: qualification standards for Fund administrators and categories of employees who may make waiver agreements (s 7 note). Definitions such as “eligible employee”, “Fund”, “Corporation”, and “executive officer” remain those in the Act unless the Regulations supply a local definition (s 5).

Interaction with the Corporations Act 2001

• The Regulations invoke concepts and standards from the Corporations Act 2001. Section 6(2)(b) uses the phrase “insolvent under administration within the meaning of the Corporations Act 2001” as a disqualifier for individual administrators. Section 6(3)(a) uses the concept of a “Chapter 5 body corporate” to disqualify corporate administrators. The Regulations also define “officer” using the Corporations Act term “director” and the Act’s own concept of “executive officer”, then enlarging to include persons with “control or substantial control” (s 5). These cross‑references make administrative assessments dependent on legal tests, registers and determinations established in the Corporations Act regime.

Consumer Price Index and thresholding

• Section 7(e)(ii) prescribes that the 2017 salary threshold ($174,700) is to be adjusted by the “annual rate of the Consumer Price Index for 2017 and then for each completed year (if any) after 2017”. That requires the Corporation, employers and advisors to apply CPI calculations; the CPI mechanism brings in an economic indexing device external to the Act and Regulations. The Regulations do not specify which CPI series to use or the precise calculation method, leaving some implementation detail to administrative practice.

Contract law and administrative law

• The Regulations frame qualifications as preconditions to contracting (s 6(1) refers to contracts to administer the Fund). Consequently, ordinary contract law will govern formation, termination, and remedies for breach of contract with administrators. The Corporation’s exercise of discretion and “satisfaction on reasonable grounds” will also be subject to administrative law principles, such as the requirement to act reasonably and not arbitrarily, potential judicial review for jurisdictional error, and procedural fairness where the Act or general law requires it. The Regulations do not themselves state review pathways.

Commencement and original effect

• The Regulations commence in full on 1 July 2018 (s 2(1) and the commencement table). The instrument contains the usual interpretative note that the commencement table relates only to the provisions as originally made and will not be updated in the Table for later amendments (s 2(2)).

Repeal of earlier instrument

• Schedule 1 repeals the Coal Mining Industry (Long Service Leave) Administration Regulations 1993 in its entirety (Schedule 1, item 1). That is a complete textual replacement of the 1993 instrument by the 2018 Regulations.

Authority and enabling provision

• The Regulations are made under the Coal Mining Industry (Long Service Leave) Administration Act 1992 (s 3). They therefore depend on the Act for their constitutional and statutory validity and for substantive definitions (s 5 notes that several expressions are defined in the Act). The Regulations do not themselves amend the Act; they operate as subordinate legislation under the Act’s enabling provisions.

No amending entries within the instrument

• The Regulations contain a standard clause on Schedules (s 4), which states that each instrument specified in a Schedule is amended or repealed as set out. Here, the single Schedule effects repeal. The Regulations do not themselves contain a provision amending other subordinate instruments beyond the 1993 repeal.

No internal amendment history recorded

• The text presented contains no later amending provisions, no revocations, and no subsequent amendment notes. Section 2’s note about the commencement table emphasises that the table is not updated for later amendments, but no later amendments are shown in the instrument as supplied.

Transitional application

• Section 8 expressly applies s 6 (qualifications of fund administrator) in relation to contracts that were in existence on 1 July 2018 and to contracts entered into on or after 1 July 2018 (s 8(a)-(b)). That singles out s 6 for transitional application so that the administrator qualification criteria apply to the then‑existing contractual arrangements as well as future contracts. The instrument does not specify other transitional measures or savings provisions.

No amending provision for other sections

• The instrument’s provisions apply on and after 1 July 2018; no staggered commencement or staged implementation is set out. Only s 6 is explicitly referenced in s 8 as being applied to pre‑existing contracts; the implication is that other provisions (such as s 7) operate from commencement for future arrangements but the instrument does not provide transitional entitlements or grandfathering for waiver agreements already in effect.

The Regulations themselves do not record any litigation, and no case law or disputes are mentioned in the instrument. The text contains no references to judicial decisions, tribunal rulings, or precedent. Therefore, from the instrument alone there is no litigation history to report.

Potential litigation pathways (text-grounded observations)

• The Regulations create administrative satisfactions and discretionary decisions for the Corporation and the Board (s 6). Decisions of that kind are typically susceptible to administrative law remedies where the enabling Act and general law permit review. The instrument does not specify internal appeal mechanisms or review rights. Consequently, if an aggrieved party (for example a proposed administrator refused appointment) sought review it would be under the Act’s procedures where available, or by judicial review in the courts for jurisdictional error or breach of procedural fairness. The Regulations do not identify specific administrative review processes or limits.

Disputes about waiver agreements

• Section 7 prescribes who may enter waiver agreements under s 39B of the Act. If a party claimed a waiver was invalid because the person seeking it was not of a prescribed kind, resolution would depend on the Act’s dispute resolution framework and on ordinary legal action for contractual validity or statutory interpretation. The Regulations do not create or describe litigation procedures for such disputes.

Evidence and constitutional cross-issues

• The Regulations reference Corporations Act concepts (such as “insolvent under administration” and “Chapter 5 body corporate”) and criminal history (conviction for financial dishonesty). Challenges concerning use of criminal records or insolvency registers, or the application of Corporations Act concepts, would invoke those regimes’ judicial frameworks. The Regulations do not alter those regimes but cross-reference them for eligibility.

No reported cases named in the instrument

• Because the Regulations contain no reference to cases, and the supplied text does not include an explanatory memorandum summarising consultation or litigation risk, the instrument provides no litigation history. Readers who require a litigation history will need to consult external databases, court records and tribunal decisions outside the instrument.

In sum, the instrument contains no litigation history. The decision-making it mandates,satisfactions on reasonable grounds and Board discretion,are the kinds of actions that, in practice, can produce litigation or review, but any such litigation would be traceable only through external case law and not from the Regulations themselves.

Subjective standards and proof burden

• The phrase “satisfied on reasonable grounds” (s 6(2)-(3)) creates a legal standard that accepts subjective administrative judgment constrained by reasonableness. The Regulations do not prescribe the evidence required to meet that standard. Prospective administrators and the Corporation will face uncertainty about what documents or processes suffice to demonstrate “good fame and character” or that an individual “will be an honest, efficient and fair administrator” (ss 6(2)(d)-(e)).

Broad and indeterminate “officer” definition

• The Regulations define “officer” to include, beyond directors and executive officers, “a person who has control or substantial control of the corporation” (s 5). That phrase is fact-sensitive and can encompass de facto controllers who do not hold formal office. Corporations whose controllers are not formal officers may nevertheless trigger s 6(3)(b) vetting obligations, potentially complicating appointments of corporate administrators and widening the range of people whose histories must be checked.

Board discretion and inconsistent application risk

• Section 6(4) permits the Board to appoint a corporate administrator even where not every officer meets the individual criteria, provided the Board is satisfied administration will not be prejudiced. That discretion may create inconsistency in appointments and risk of challenge where the Board’s rationale is not recorded or transparent. The Regulations do not require publication of reasons or a decision-making framework for exercising this power.

CPI‑indexation vagueness

• The salary threshold in s 7(e)(ii) is to be adjusted “by the annual rate of the Consumer Price Index for 2017 and then for each completed year (if any) after 2017”. The Regulations do not identify which CPI series is to be used (e.g., All Groups CPI for Australia), nor do they provide a rounding or timing rule for annual adjustment. This creates a small but practical compliance risk for employers and advisors when determining whether an employee meets the salary threshold in a particular year.

Application to pre‑existing contracts

• Section 8 ensures s 6 applies to contracts existing on 1 July 2018. That retroactive application may require the Corporation and existing administrators to align historic contracts with the new criteria. The Regulations do not provide transitional remediations or timelines for rectifying deficiencies in existing administrators; consequently, parties may face immediate compliance obligations or contractual disputes about applicability and termination rights.

For the Corporation and its Board

• Establish a documented due diligence framework to satisfy the “reasonable grounds” standard in s 6. That framework should list the specific documentary evidence the Corporation will require from proposed administrators: certified copies of educational qualifications, curriculum vitae evidencing relevant experience, insolvency clearance searches to confirm not “insolvent under administration” under the Corporations Act (s 6(2)(b)), national criminal history checks or equivalent evidence proving no conviction in the last 10 years for offences involving financial dishonesty (s 6(2)(c)), and references or probity evidence to support “good fame and character” and likely conduct as an honest, efficient and fair administrator (ss 6(2)(d)-(e)). The Regulations do not mandate formats, so a consistent administrative practice will mitigate legal risk.

• Record decision reasoning. Where the Board exercises the discretion in s 6(4) to approve a corporate administrator despite some officers not meeting the individual criteria, the Board should record the factual and legal basis for the conclusion that “the administration of the Fund is not likely to be prejudiced”. Detailed minutes and written reasons will assist in defending decisions against administrative review or contract disputes.

• Contract clauses. Ensure contracts for Fund administration contain representations and warranties about the administrator’s compliance with the Regulation criteria, and include standard termination and rectification clauses allowing the Corporation to address later-discovered disqualifying information, consistent with the Act and contract law.

For prospective individual administrators

• Prepare and present clear evidence of educational qualifications and experience relevant to administering the Fund (s 6(2)(a)). Obtain insolvency checks or statements confirming not “insolvent under administration” under the Corporations Act (s 6(2)(b)). Provide national criminal history records, and be prepared to explain any conviction within the last 10 years, especially involving financial dishonesty (s 6(2)(c)). Supply referees and character references to support claims of “good fame and character”, and document prior roles or processes that demonstrate likely honest, efficient and fair administration (ss 6(2)(d)-(e)).

For prospective corporate administrators

• Identify all officers within the meaning of s 5 and assemble evidence that each officer meets the individual requirements in s 6(2), unless the corporation anticipates relying on s 6(4). Ensure the corporate entity is not a Chapter 5 body corporate under the Corporations Act (s 6(3)(a)). Where officers do not meet the criteria, prepare a deliberate mitigation and governance plan to show administration will not be prejudiced, to facilitate the Board’s s 6(4) satisfaction.