After the laggard uptake by the mining and infrastructure industry of the Building and Construction Industry Payments Act Qld 2004 (BCIPA), contractors and subcontractors in these industries are now increasingly using and enforcing BCIPA claims.
While there was doubt over the application of BCIPA to mining, recent Queensland Supreme Court decisions Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd and HM Hire Pty Ltd National Plant and Equipment Pty Ltd show that BCIPA applies to most mining construction.
In Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd the work involved the stripping of topsoil and scrub with scrapers and dozers, the removal of subsoil and overburden down to the coal seam and the implementation of water management measures to ensure that the pit did not fill with water.
It was argued that the work fell within BCIPA's mining exclusion as being necessary to the coal mining process and therefore part of the extraction of coal.
The court held the work performed was:
- too remote from the process of extraction as it was remote in place (as coal was never to be extracted from the land which contained the dams and drains); and
- remote in time (as the dams and drains were built before any major digging took place and had to be in place to permit the excavation to proceed).
Moreover, the plant and machinery used by Warren was very different from the machinery used for the extraction of coal.
In HM Hire Pty Ltd v National Plant and Equipment Pty Ltd, National Plant and Equipment hired four dump trucks and a wheel loader to HM Hire Pty Ltd to be used to perform clearing and grubbing works, topsoil stripping and placement.
The court supported the decision in Thiess v Warren Brothers and stated that an extension of the meaning of "extraction of minerals" to cover work merely associated with such extraction would detract from the purpose of the legislation and the broad understanding given to the notion of "construction work".
In addition to these decisions, we are also aware of numerous BCIPA claims, adjudication applications and determinations, and subsequent Supreme Court reviews involving work in the mining and infrastructure sector.
If you are in the mining industry it is imperative that you review your contracts to ensure you have maximum protection against BCIPA or to prevent your rights under BCIPA being restricted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
