Claffey, D.R. v G. James Holdings P/L

[1992] FCA 608

Re: DARYL ROY CLAFFEY
And: G JAMES HOLDINGS PTY LTD
Nos. Q I8 of 1990 and Q I9 of 1990
FED No. 608
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Heerey J.(1)

CATCHWORDS

Industrial Law - award - penalty for breach - National Building Trades Construction Award 1975 - Clause 8.10 - "construction work" - glass cutting - insertion of pre-cut glass into aluminium frames - whether connected with "erection" of buildings or structures - whether work involved "fixing".

Industrial Law - award - penalty for breach - National Building Trades Construction Award 1975 - Clause 15.10 - travelling allowance - entitlement to payment on paid day off.

Words and Phrases - "construction work" - "erection".

Conciliation and Arbitration Act 1904: s.119

National Building Trades Construction Award 1975: Cll.8.10, 10.1, 15.6(a), 15.10

Saunders v Park Homes Pty Ltd, unreported, Federal Court, Gray J, 5 August 1988

Re Builders Labourers (Construction on Site) Award 1962 (1965) 6 FLR 498

HEARING

BRISBANE

#DATE 21:8:1992

Counsel for the applicant: Ms C E Holmes

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr J Murdoch

Solicitors for the respondent: Steindl Robertson McPherson

ORDER

IT IS ORDERED THAT:

1. The application be dismissed.

Note: Settlement of orders is dealt with in Oreer 36 of the Federal Court Rules.

JUDGE1

These applications for the imposition of a penalty under s.119 of the Conciliation and Arbitration Act 1904 (the Act) raise questions of construction of the National Building Trades Construction Award 1975 (the Award) and in particular whether two workers were engaged in "construction work" within the meaning of cl.8.10 of the Award. An issue also arises as to payment of a travelling allowance on a paid day off under cl.15.10.

The Respondent's Plants

1. The cases are concerned with work performed in 1985 and 1986 by two workers, Mr Trevor Seeley and Mr Phillip Llewelyn, at two plants of the respondent in the suburbs of Brisbane. Those plants were, at relevant times, situated at Montague Road, West End and Fison Avenue, Eagle Farm.

2. At West End Mr Seeley and Mr Llewelyn were engaged in glass cutting. Glass was cut for use as windows and panels in domestic and commercial buildings. Some of that glass was destined for other factories of the respondent to be made up into windows. Other glass was cut for cabinet makers, shopfitters and furniture or mirror manufacturers. The only evidence as to the proportion of glass cut for different categories came from Mr Llewelyn, who put it at 80 per cent glass intended for building purposes and 20 per cent other uses. Mr Llewelyn was speaking at a distance of six years about really what was no more than his general impression at the time so one could not treat his figures as having any great inherent accuracy. I think that having regard to the standard of proof applicable I could find no more than that most of the glass cut at West End was destined for buildings but that a significant and regular part of the glass was cut for use other than in buildings. The cutting of glass involved the use of hand held tradesmen's tools such as glass cutters and pliers.

3. The work at Eagle Farm was mainly concerned with the insertion of glass into frames to provide windows and panelling for commercial and domestic buildings. Those frames were made up at the same plant from extruded aluminium. The glass was obtained in pre-cut form from the West End plant. Occasionally the workers at Eagle Farm might find it necessary to cut glass down because of some change of mind on the part of the client, but that was a very rare occurrence. The work done by the relevant workers at Eagle Farm was essentially part of a production line fitting pre-cut glass into frames. This was done primarily through what is called wet glazing, which involves the use of a silicon gun. There was overhead lifting equipment to move the frames around the factory. The two men did not go to the building site with the panels or have anything to do with their ultimate installation. Tradesmen's tools which were used included a silicon gun, snips, spatular putty knife and a spray bottle. Generally speaking the work at the time in question at Eagle Farm was done with the glass in a horizontal plane. On-site glazing techniques involved the glass being in a vertical plane. However the same tools were used.
   The Award Provisions

4. Clause 8.10 provides as follows (the actual text is continuous; I have broken it into parts and sub-parts to facilitate discussion):
   

"10. 'Construction work' means

(a) all work performed under this award in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures,

(b) including

(i) the making, assembling or fixing of woodwork and fittings in connection therewith,

(ii) the making, preparing, assembling and fixing of any material necessitating the use of tradesmen's tools or machines including all work performed by stonemasonry classifications (provided that in the States of South Australia, Victoria and Western Australia work in stonemasonry yards and/or shops and in cemeteries shall not be regarded as construction work) and

(iii) the prefabricating of a building in an open yard.

For the purpose of this definition 'maintenance' is confined to tradesmen employed by Building and Construction Industry employers respondent to this award."

Glass Cutting at West End

1. Starting with what I have called part (a) of cl.8.10, there is no basis for finding that the work was done in connection with repair, renovation, maintenance, ornamentation or demolition of buildings or structures.

2. As to erection, I think the cutting of glass at West End was no more than the preparation of material which might be used by other workers at a building site in the erection of a building. There was a historical connection, in the sense that glass has to be cut at some stage if it is to be used for a window in a building. But while not wishing to decide the point merely on a simplistic test of on-site or off, I think that, at least in relation to the particular work of cutting glass to size for windows, there is a lack of sufficient connection with the operation of erection. Erection involves raising up. In ordinary language, one would think that the erection of a building or structure connotes the putting together of materials so as to create a finished entity ready for use or occupation. Usually this is something done on the site - as is the repair, renovation, maintenance, ornamentation or demolition of buildings or structures. In some circumstances the building or structure itself may be moveable - as exemplified by the transportable homes considered by Gray J in Saunders v Park Homes Pty Ltd (unreported, 5 August 1988). But that only means the erection takes place in a factory rather than the place (or places) where the home is to rest.

3. What was done at West End was work in connection with the preparation of materials for ultimate use in the erection of buildings or structures. I do not think it was work in connection with the erection of buildings or structures. In this regard it was not essentially different from the manufacture of bricks, nails or paint.

4. Part (b)(i) of the clause is not applicable because woodwork was not involved.

5. Part (b)(ii) seems to me to require fixing as an essential element; note the expression "making, preparing, assembling and fixing" in (b) (ii) in contrast with "making, assembling or fixing" in (b)(i). Thus although tradesmen's tools were used in cutting glass at West End (even though cranes and other equipment which would not be so regarded were also used), the work was not "construction work" within the meaning of cl.8.10 because the workers did not fix it in place on the building being erected.

6. Part (b)(iii) has no application because the work did not take place in an open yard.

7. Industrial awards are often the result of intensive negotiation or arbitration. Some points are won and some lost, with the consequence that the end product is not always totally coherent and internally consistent. Thus care must be taken in arguing the construction of one clause by reference to its compatibility with other parts of the Award or seeking unifying themes. Nevertheless, I think the construction I have adopted is reinforced by the terms of cl.10.1 dealing with industry allowances. That clause provides:
   

"1. Industry Allowance - in addition to the rates prescribed in clause 9.1 an employee shall be paid an allowance at the rate $12.70 per week to compensate for the following disabilities associated with construction work (as defined).

(a) Climatic conditions when working in the open on all types of work.

(b) The physical disadvantage of having to climb stairs or ladders.

(c) The disability of dust blowing in the wind, brick dust and drippings from 'newly poured' concrete.

(d) Sloppy and muddy conditions associated with the initial stages of the erection of a building.

(e) The disability of working on all types of scaffolds or ladders other than a swing scaffold, suspended scaffold, or a bosun's chair.

(f) The lack of the usual amenities associated with factory work (e.g. meal rooms, change rooms, lockers). Provided that the industry allowance for repair work shall be $9.40.

Provided that the rate prescribed in this clause shall not apply to employees when employed in stonemasons monumental and off-site building construction yards in Queensland."

1. As I read the clause, a worker would not have to show the existence of any of the particular circumstances (a) to (f) in order to get the allowance. Nor would the worker get $12.70 per week for each circumstance applicable. Rather the circumstances in (a) to (f) serve as justification and explanation for the grant of allowances for construction work in general - and also serve to preclude special claims when, for example, bad weather or dust conditions exist. So viewed, cl.10.1 supports the conclusion that "construction work (as defined)" will usually refer to work in connection with the erection of buildings that is done outdoors, and not in factories (see cl.10.1(f)). I say usually, because Saunders shows the particular nature of a building may in fact result in its being erected at a factory and transported as a building to some other site or sites. However the glass cut in the respondent's West End factory was destined for ultimate use in the construction of conventional buildings insofar of course as it was not intended for use in other manufacturing.
   Glazing Windows at Eagle Farm

2. I think the work done here was work in connection with the manufacture of windows. No erection work took place until the windows were transported away from the factory to the building site and there fixed to the building. The workers in question played no part in these steps. They were involved in work in a factory setting as part of a production line process which had as its end product a component for use in the erection of a building.

3. For the reasons already mentioned, parts (b)(i), (ii) and (iii) have no application.

4. The respondent relied on the decision of the Commonwealth Industrial Court in Re Builders Labourers (Construction on Site) Award 1962 (1965) 6 FLR 498. However the award under consideration in that case did not contain any definition of the term "construction work". There was no provision comparable to the definition in the Award in the present case which, for present purposes, hinges on the word "erection". Also, the nature of the work in Builders Labourers was rather special involving as it did precast slabs complete with wiring and plumbing ready to be assembled on site.
   Travelling Allowance

5. A separate issue arises in relation to Mr Seeley, viz whether he was entitled under cl.15.10 to a travelling allowance on a paid day off.

6. Clause 15 is headed "Compensation for Travel Patterns, Mobility Requirements of Employees and the Nature of Employment in the Construction Work covered by this Award". Clause 15.1 to 15.5 deal with specification of the circumstances in which allowances are payable. Clause 15.6 deals with the situation where the employer provides transport for the worker. Clause 15.6(a) provides:
   

"6. (a) Subject to paragraphs (b) and (c) hereof the allowance prescribed in this clause except the additional payment prescribed in subclauses 15.4 and 15.5 shall not be payable on any day on which the employer provides or offers to provide transport free of charge from the employee's home to his place of work and return; provided that any transport supplied is equipped with suitable seating accommodation and is covered when necessary so as to be weatherproof."

Clause 15.10 provides:

"10. The travelling allowances prescribed in this clause shall not be taken into account in calculating overtime, penalty rates, annual or sick leave, but shall be payable for any day upon which the employee in accordance with the employer's requirements works or reports for work or allocation of work and for the paid day off as prescribed in clause 16 or subclause 22.4."

1. At the relevant time Mr Seeley was being provided with transport by the respondent on his working days. Clause 15.6(a) thus had the effect that he received no travelling allowance. Counsel for the applicant contends that while the result may be quite illogical, under cl.15.10 Mr Seeley was nevertheless entitled to a travelling allowance on his paid day off.

2. I think the clear words of cl 15.10 do compel that conclusion. The competing construction would require cl 15.10 to be read as though it contained the additional words "except where the employee has, immediately prior to the paid day off, been provided with transport free of charge under cl 15.6(a)". This involves doing substantial violence to the plain words of cl 15.10. There would also presumably need to be further modification if the employee had, in the preceding work period, received travelling allowance for some days but free transport for others.

3. While there is some lack of logic about the applicant's contention, the same might be said of the more usual circumstances where cl 15.10 operates, viz where the employee is receiving travelling allowance on his working days. An allowance, by its very nature involves reimbursement for expenses incurred, yet it is plain that such employees are to receive travelling allowance on a paid day off even though they will have incurred no expense.

4. I think cl 15.10 is to be read as conferring an entitlement to travelling allowance on a paid day off, whether the employee on working days is receiving a travelling allowance or being provided with free transport.
   Orders

5. It follows that in No. QI 8 of 1990 (Seeley) the applicant has failed on the construction work issue but succeeded on the travelling allowance issue. I find therefore there have been breaches of a term of the Award in that respect. The applicant accepted that these should be treated as constituting a single breach of that term: cf s.119(1A). However I think there are circumstances which make it appropriate in the exercise of the discretion conferred by s.119(1) to impose no penalty at all.

6. There is no suggestion of any attempted evasion of the Award. The case arose out of a genuine dispute as to the construction of the Award. The respondent's business has been in existence since 1917. During that 75 year period there has been no conviction or penalty for breach of any industrial obligation. The respondent currently employs about 1500 workers. Its record suggests that it takes its obligations as an employer seriously. The Managing Director, the grandson of the founder of the business, was present throughout the hearing of the cases before me. I have no doubt that the respondent will comply with its obligations under the Award as interpreted by the Court in this case.

7. I shall therefore not impose a penalty and simply dismiss the application.

8. In No.QI 9 of 1990 (Llewelyn) the applicant failed on the only live issue. The application will be dismissed.