Coinvest Ltd v Baytech Trades Pty Ltd
[2014] VCC 1555
•17 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-14-00413
| COINVEST LIMITED (ACN 078 004 985) | Plaintiff |
| v. | |
| BAYTECH TRADES PTY LTD (ACN 147 997 788) | Defendant |
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JUDGE: | Her Honour Judge Kennedy | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2 and 3 September 2014 | |
DATE OF JUDGMENT: | 17 September 2014 | |
CASE MAY BE CITED AS: | Coinvest Ltd v. Baytech Trades Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1555 | |
REASONS FOR JUDGMENT
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Catchwords: Construction Industry Long Service Leave Act 1997 (Vic)- whether workers performed construction work in the construction industry for the purposes of the Act and Construction Industry Long Service Leave Rules
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. D’Abaco | Maddocks Lawyers |
| For the Defendant | Mr C. O’Grady | AI Group Legal |
HER HONOUR:
1The plaintiff seeks the sum of $57,440.74 as outstanding long service leave charges in respect of certain workers employed by the defendant and hired out to NHP Electrical Engineering Products Pty Ltd (NHP) to build electrical switchboards. The plaintiff also seeks declaratory relief in respect of such workers.
2The defendant admits that the workers performed work for NHP which included the manufacture of electrical switchboards, but denies that the charge is payable and says that the workers are not engaged in “construction work” in the “construction industry” pursuant to the Rules made by the plaintiff trustee.
3The defendant otherwise does not challenge the quantum calculation but denies that the charge is payable to the extent that any individual is not undertaking work of a kind provided for in the applicable Award.
4The issue for the court is therefore whether the relevant workers were engaged in construction work in the construction industry as defined in the Rules.
Witnesses
5The trial was conducted on the basis of affidavit evidence with limited further examination and cross examination.
6Three workers were called; 2 by the plaintiff (Mr Anderson and Mr Matthews) and one by the defendant (Mr Dunphy).
7The plaintiff also called its CEO, Mr Hartley, and adduced an affidavit as to calculations from Mr Rukesh Sadhai.
8The defendant called a Ms Ramsay, Recruitment Consultant at the defendant, and Mr Blanche, Managing Director of the defendant. An affidavit of the National Manager of the defendant, Ms Michelle MacDonald was also adduced. The defendant also called Mr Coslovich, a Director of Product Quality, Engineering and Manufacturing at NHP.
9Finally, a Mr Smith (Director, National Workplace Relations of the Australian Industry Group), also gave evidence as to the award system generally on behalf of the defendant.
10The evidence was largely uncontested with only minor discrepancies arising.
Background
Plaintiff and the Fund
11The plaintiff is the trustee of the Construction Industry Long Service Leave Fund ("the Fund"), which is established by the Construction Industry Long Service Leave Act 1997 (Vic) ("the Act').
12Pursuant to s1 of the Act, the purpose of the Act is to repeal the Construction Industry Long Service Leave Act 1983 and provide for the scheme established by that Act to be administered in accordance with a trust deed by a company incorporated under the Corporations Law.
13The Fund is established under a trust deed executed by the plaintiff dated 1 April 1997 (“the Trust Deed”). The Fund provides portable long service leave benefits to workers in Victoria who perform construction work in the construction industry in Victoria. The Fund is used, among other things, to pay long service leave benefits to casual employees who may move from employer to employer and would thus be otherwise unable to access a long service leave entitlement.
14Pursuant to s6(1), every worker is entitled to long service leave, and to be paid benefits out of the Fund, in respect of continuous service in the construction industry.
15Pursuant to s4(1), an employer must pay to the plaintiff a long service charge in respect of every worker employed by it to perform “construction work” in the “construction industry”.
16The plaintiff may recover the amount of the Charge owing to it by an employer, plus interest, as a debt in any court of competent jurisdiction – ss 5(1) and 5(2) of the Act.
17The date by which the Charge is payable, the period in respect of which it is payable, the amount of the Charge payable and the method by which that amount is to be calculated are as determined from time to time by the plaintiff in accordance with the Trust Deed -s4(2) of the Act.
18Under clause 5 of the Trust Deed, the plaintiff is empowered to make rules relating to the Fund (“the Rules”).
19 The court was provided with Rules of the Construction Industry Long Service Leave Fund as at December 2011. Both parties accepted that these rules were the appropriate form to resolve the issues in dispute in this proceeding.
20 The terms “construction work” and “construction industry” are not defined in the Act. They are defined in clause 1.1 of the Rules. For the purposes of the Act, the definitions of these terms in the Rules apply - s. 3(2) of the Act. It will therefore be necessary to examine these definitions further, below.
Defendant and NHP
21 The defendant is a labour hire company. The defendant prepares job descriptions based on information provided by the client which are then provided to candidates. Typically the average duration of a placement of a labour-hire worker with a client is about 8 weeks. The defendant invoices its clients on the basis of the hours and times at which its employees have worked.
22 One of the defendant’s clients is NHP. Among other things, NHP builds electrical switchboards and electrical panel boards at its premises in Laverton North, which are used in commercial and industrial applications. Such work is mostly performed by NHP’s own workforce. However, from time to time it engaged a labour hire company, such as the defendant, to provide workers to supplement its own workforce on a casual basis.
23 The defendant and NHP had entered into a written contract dated 8 March 2011. It provided that NHP, as Principal, had requested Baytech to provide on-hired workers (and recruitment services) in accordance with various terms and conditions to perform work at NHP’s premises.
24 However, Mr Blanche agreed that the nature of the work provided by the workers employed by Baytech to work at NHP was electrical in nature and that the services they provided were in fact “electrical services.” He also agreed that the services provided by the defendant to NHP were the services of the workers. However, he emphasized that the defendant provided labour only and maintained that it was the workers (being the defendant’s employees) which actually provided the electrical services.
Recruitment of workers by defendant to work at NHP
25 Ms Ramsay accepted that in putting position descriptions together the defendant relied on information provided to it by NHP including an NHP position description for Electrical Fitters which read as follows:
Apply specialised electrical theory & practical knowledge to assemble operational industrial electrical control switchgear and power distribution equipment…
26 “Key Accountabilities” also included “Assemble and test electrical distribution equipment, motor control assemblies, switch gear, isolators and other electrical equipment and components according to engineering drawings and specialised knowledge of electrical principles”.
27 An NHP position description in relation to “trade assistant” also summarised the position as being to “support all electrical fitters in daily production activities as determined by the workshop Team Leaders”.
28 Ms Ramsay also placed an advertisement for electrical fitters which was in evidence. It stated that “Our client is currently seeking a number of experienced Electrical Fitters for their busy manufacturing factory located in Laverton North. This is a great career opportunity to join Australia’s Leading Marketer of Electrical Engineering Products.” Further, “to fulfil the role you will require [ a number of matters are then listed, including]: a trade qualification (minimum electrical fitter); switchboard manufacturing experience; solid understanding of drawings; strong electrical experience, assembling components and general wiring”. The role was also said to not be commissioning or decommission work. “The role involves wiring switchboards and panel boards. You MUST have previous wiring experience”.
29 Upon being retained, workers signed standardised “employment agreements for a casual on-hired worker.” Mr Matthews’ evidence was that he was also given a document entitled “Baytech – Job Description and Key Site Requirements” which described his job title as an “electrical fitter” and described his duties as follows:
Assemble and manufacture low voltage switchboards and panels, Electrical Fitter qualifications are a must along with previous experience and must be able to read electrical drawings.
Nature of work
30 An indicated already, three employee electricians were called to give evidence (Anderson, Matthews, and Dunphy). Although there was some minor divergences there was general consistency about the main aspects of the work in relation to switchboards and panel boards.
31 A preliminary issue was whether there was in fact any difference between switchboards and panel boards. Mr Blanche suggested that there was a distinction. However, Mr Coslovich’s evidence was that there was no real difference between the two terms, which could be used interchangeably. I accept this latter evidence. Mr Coslovich possessed superior technical qualifications (he had a degree in electrical engineering). His evidence was also consistent with the preponderance of the evidence which suggested there was no material difference.
32 The workers were given a folder containing drawings for the particular switchboard. According to Mr Coslovich, typically, a large commercial building is scoped and a specification is designed to scope the needs of the specific installation, including electrical equipment. NHP then prepared drawings so it knew which components needed to be added to the switchboards which are approved by the customer.
33 The workers then began building the switchboards in accordance with the drawings, fixing the various components to a circuit board following the drawings. There could be several hundred components. The components included circuit breakers, mainswitches, changeover switches, contactors, current transformers, fuses, and earth and neutral brackets.
34 The workers made sure all the wiring was connected between the components. The switchboard was then fixed inside a metal enclosure with a door.
35 The time to build a switchboard was subject to variation. According to Mr Dunphy, the time it took to build the switchboards varied between several hours and up to 6 weeks.
36 After the board was finished it went to the testing bay. If there were any problems it was returned to the worker to fix. After that, the switchboard was sent to NHP’s customer.
37 In terms of complexity, there was some divergence in the evidence. Thus, although Mr Matthews and Mr Anderson suggested that you would need electrical knowledge and background to do the work, Mr Dunphy suggested that the work could be performed by a second year apprentice or unskilled labourer. Mr Coslovich also claimed that the fitters were not required to apply specialised electrical theory or have specialised knowledge of electrical principles.
38 To the extent it is necessary, I generally prefer the plaintiffs’ witnesses on this matter. Thus, although I accept that Mr Dunphy may have genuinely held his views, this assessment must be considered in the context of his qualifications as an A grade electrician with some 30 years’ experience. Given such a background it is unsurprising that he found this particular work “boring”.
39 Mr Coslovich’s qualifications also suggested he might have a tendency to downplay the complexity of this sort of work. There was also a commercial motive for him to do so given it appears that the plaintiff is currently considering whether to take action in relation to NHP’s own employees.
40 In any event, the evidence of the plaintiffs’ witnesses was consistent with the objective evidence contained in the advertisements and the job descriptions previously summarised. It also appears more likely given the potentially dangerous nature of the product being built. Ms Ramsay, who was physically located at NHP four days a week, also ultimately accepted that an unskilled labourer could not perform the work, nor a second year apprentice. She also accepted that the defendant does not in fact employ unskilled labourers to undertake the work.
41 I therefore accept that the work was skilled work which required electrical qualifications as the employer’s own documentation suggested.
42 The type of work described was generally performed by electrical fitters. However, both Mr Blanche and Ms Ramsay gave evidence that trade assistants were also employed who supported the electrical fitters in the work they undertook. This was consistent with the NHP position description, described above.
43 The preponderance of the evidence was also that these workers generally performed the same type of work as the NHP direct employees.
Events leading to issue of this proceeding
44 On 30 January 2013 , Mr Matthews contacted the plaintiff to enquire whether the defendant had paid long service leave charges in respect of his work at NHP between October 2012 and December 2012.
45 Over subsequent months CoInvest and the defendant entered into various communications as to whether the defendant was liable to pay long service leave charges to the plaintiff in respect of its employees working at NHP.
46 On 7 June 2013 the plaintiff issued a notice to the defendant under section 10 of the Act requiring it to provide further information about various matters including the identity of the workers and their position descriptions as well as a description of the duties performed by each worker.
47 On 17 July 2013 the defendant responded to the plaintiff. This response included the 2 NHP position descriptions. It also included a spread-sheet of workers most of whom were described as casual “electrical fitters” or “trades assistants”.[1]
[1] “JEH10” contained in Exhibit C, Affidavit of John Ernvin Hartley of 17 July 2014 appearing at CB 85 – 538.
48 There were however also references to “break press operators”, “test bay” employees and “standard starters.”
49 The evidence of Ms Ramsay was that the test bay employees tested the switchboards assembled by the other workers to ensure they had been properly made and that all the wires were connected and there were no faults. Electrical fitters were engaged in this capacity. A “standard starter” also had a general knowledge of electrical components and performed electrical fitting work (although it was unclear what). She was unsure what a brake press operator did.
50 On 30 January 2014 , the plaintiff issued this proceeding.
Principles
51 The mischief which the Act seeks to remedy is to provide portable long service leave benefits to workers in the construction industry who would otherwise be unable to qualify by reason of the itinerant nature of their employment.[2]
[2] Jemena Asset Management (3) Pty Ltd & Ors v CoINVEST Limited (2011) 244 CLR 508, page 528.
52 Given this purpose in providing benefits for a category of the workforce, the scheme is generally entitled to a beneficial construction.[3]
[3] Lindner Pty Ltd v Builders Licensing Board (1982) 1 NSWLR 612, page 613.
53 This approach will be borne in mind in turning to the concepts of “construction work” and “construction industry”.
Construction work
54 Rule 1.1 provided that “construction work” includes “Electrical Trades, Work”
55 “Electrical Trades Work” was defined to mean work performed in the Construction Industry in Victoria being “work of a kind for which a rate of pay is fixed by a Prescribed Electrical Contracting Award”.
56 A “Prescribed Electrical Contracting Award” was further defined to include the Electrical Contracting Industry Award 1992 (clause 1.1) (the 1992 Award).
57 The parties helpfully filed an “Agreed statement of issues” which particularised the various sub-issues in dispute in relation to this concept of “construction work” which included the following question:
1. Is the work carried out by the defendant’s workers for NHP Electrical Engineering Products Pty Ltd (the Work) Construction Work within the meaning of that term in the Construction Industry Long Service Leave Rules (Rules)? In particular:
(a) Is the Work of a kind for which a rate of pay is fixed by a Prescribed Electrical Contracting Industry Award?
(b) Is the Prescribed Electrical Contracting Industry Award the Electrical Contracting Industry Award 1992 or the Electrical, Electronic and Communications Contracting Award 2010?
(c) Is the kind of work for which a rate of pay is fixed by the Prescribed Electrical Contracting Industry Award limited by the scope and application of that Award?
(d) If the answer to (c) above is “Yes”:
(i) is the defendant an “electrical contractor” for the purposes of the Award?
(ii) does the defendant contract to provide “electrical services” for the purposes of the Award to NHP Electrical Engineering Products Pty Ltd?
(e) Is the Work of a kind performed by the classifications of Trades Assistants, Electrical Fitters, “A” Grade Licensed Electrical Mechanics or Electricians Special Class contained in the Electrical Contracting Industry Award 1992 or the Electrical, Electronic and Communications Contracting Award 2010?
58 These reasons will therefore answer these agreed questions in resolving whether the work was “construction work.”
(a) Is the Work of a kind for which a rate of pay is fixed by a Prescribed Electrical Contracting Industry Award?
59 The phrase “of a kind” has been given some judicial consideration. It requires the Court to consider the nature of the work being undertaken. It includes a consideration of not only the basic mechanics of the tasks being undertaken, but also the place where the work is undertaken, the conditions under which the work is performed, and the standards and end to be achieved: EPM Concrete Pty Ltd & Anor v Building & Construction Industry Long Service Leave Payments Corporation (the EPM case). [4] Consideration should also be given to what a worker is “in fact doing” rather than just the title of the position.[5]
[4] (1985) 23 IR 430, page 437.
[5] Builder’s Licensing Board v Pride Constructions Pty Ltd [1979] 1 NSWLR 607, page 612.
60 The plaintiff’s case was that the relevant workers were engaged in work “of a kind” described by the classifications of Electrical fitters or Trades Assistants, both of whom had rates of pay fixed under the 1992 Award. It also suggested that some of the employees might come within the additional classifications of “‘A’ Grade Licenced Electrical Mechanic” (clause 4.5 of Part B) (Mr Matthews) and “Electrician Special Class” (clause 4.9 of Part B) (Mr Anderson, who was working on more complex switchboards). However, there was insufficient evidence to justify classification of all the workers on this basis.
61 Clause 7.2 of Part B of the 1992 Award fixes a weekly rate of pay for the classifications of Electrical Worker Grade 1 to Electrical Worker Grade 10.
62 The kind of work engaged in by such “Electrical Workers” is not clearly defined but apparently reflected a reclassification of various workers including those formerly classified as trades assistants and electrical fitters. Thus, the definition of an electrical fitter was included within an Electrical Worker Grade 5 (see clause 4.5 of Appendix 1 to Part A and clause 8.2.5.3 of Part B) while a Trades Assistant was included as an Electrical Worker Grade 2 (clause 4.2.1.1 of Appendix 1 to Part A and clause 8.2.2.1 of Part B).
63 In the result, both parties accepted that the Award prescribed rates of pay for Electrical Fitters as defined in clause 4.4 of Part B as follows:
4.4“Electrical Fitter” shall be an electrical fitter employed by an Electrical Contractor normally engaged in making, repairing or maintaining electrical machines, instruments or appliances, but it does not include electrical fitters employed in the manufacturing section of a contractor’s business.
64 An initial issue is the use of the term “normally” and whether it governs the fitter or contractor. However, the context of the clause suggests that the word “normally” governs the fitter given it appears to be qualifying the tasks actually performed by the fitter (making, repairing etc). This position was also taken by the defendant in its written submissions.[6]
[6] Defendant’s Outline of Closing Submissions, filed in Court on 3 September 2014, paragraph 8.
65 The relevant requirements were therefore that the fitter:
· was employed by an “Electrical Contractor”;
· was normally engaged in making, repairing or maintaining electrical machines instruments or appliances;
· was not employed in the manufacturing section of the contractor’s business.
Electrical contractor
66 Clause 5 of Part A of the Award dealt with the “incidence, scope and application” of the Award. Clause 5.1 provided that the award shall apply to the provision of electrical services by electrical contractors.
67 Clause 5.2 then made provision for various definitions “for the purpose of this clause”. The court is not called upon to consider whether the award itself is actually binding such that the definitions may not necessarily have application. Nevertheless, given the absence of any definition elsewhere the definitions will be considered.
68 Clause 5.2.1 defines an electrical “contractor” as any entity which contracts to provide electrical services.
69 Two issues therefore arise: whether the workers were providing “electrical services” and, if yes, whether the defendant was an entity which “contracts to provide electrical services”.
Electrical services
70 Clause 5.2.2 provided that electrical services includes:
5.2.2.2 the installation of electric light and power, all classes of assembly, wiring, repair and maintenance of electrical installations and appliances including, without in any way limiting the generality of the foregoing, the assembling, installing, diagnosing, servicing and rectifying of faults in any of the following….
71 I accept that the work undertaken by the Workers at NHP constitutes the assembly and wiring of various electrical components. Thus each of the workers need to “assemble” various parts and then “wire” them together resulting in an electrical switchboard or panel board.
72 Mr Blanche accepted that the core task performed by the electrical fitters employed by the defendant at NHP was to assemble components and general wiring. Mr Coslovich also agreed that the services provided involved assembly and wiring of electrical components to form electrical switchboards.
73 It is true, as the defendant highlighted, that the workers did not actually engage in the “installation” of the switchboards. However, the term “assembly” is important and suggests a broad concept beyond the actual act of “installation” (as used in the first line of the definition). Thus, the acts contemplated go beyond the act of “installing” and extend to “assembly” and “wiring”. In fact, an “assembly of an electrical installation” is actually contemplated by the clause and is to be given some meaning.[7]
[7] cf Defendant’s Outline of Closing Submissions, filed in Court on 3 September 2014, paragraph 29.
74 The Macquarie Dictionary defines an installation as “a system of machinery or apparatus placed in position for use”[8] while the Merriam-Webster Dictionary defines it as including “something (such as a piece of equipment) that is put together and made ready for use”.[9]
[8] Macquarie Dictionary, 2nd Edition, 1991.
[9] Merriam-Webster Dictionaries Online, accessed 8 September 2014.
75 Although it is true that the switchboards were not formally placed in position at NHP’s premises, they were certainly “assembled” there according to specifications which would enable them to be installed at a particular premises. Seen in this light, I consider that the workers were engaged in the assembly and wiring of an electrical installation. The reference to “all classes” and the beneficial construction to be utilised also support such a finding.
76 Although I consider that “installation” and “appliances” are, in context, used disjunctively, I am also of the view that a switchboard can be properly characterised as an “appliance”. The Macquarie dictionary defines appliances as including an “instrument, apparatus or device”[10] while the Oxford Dictionaries Online definition includes “a device or piece of equipment designed to perform a specific task”.[11]
[10] Macquarie Dictionary, 2nd Edition, 1991.
[11] Oxford Dictionaries Online, accessed 8 September 2014.
77 I consider such words are broad enough to include the electrical switchboards which would be incorporated within the terms “apparatus”, and/or “device or piece of equipment” designed to regulate and distribute electricity.”
78 Accordingly I am satisfied that the workers were engaged in the assembly and wiring of electrical installations and appliances.
Contract for electrical services
79 The defendant placed emphasis on the strict terms of the NHP contract which recorded that Baytech was to provide “on-hired Workers” in circumstances where the client agreed to supervise those Workers (clause 3).
80 The defendant also claimed that “electrical contractors” generally were not intended to include labour-hire firms, citing a myriad of industrial material in support of this proposition.
81 I accept that I should read words in context. However, the defendant did not identify any contextual material in relation to the 1992 Award which suggested that the words in that Award should not have application to electrical services provided by labour hire employees. More particularly:
· much of the material adduced appears to post- date the 1992 Award and cannot thereby be of assistance.[12]
[12] e.g. see clause 4.5, 4.11(h) and the definition of ‘on hire’ in clause 3.1 of the Manufacturing Award 2010; Stage 4 Award Modernisation Decision [2009] AIRCFB 925.
· the defendant did not identify any indication in the language of the 1992 Award, considered overall, which suggests that labour hire firms should be given some separate treatment;
· the type of employees employed by such firms (casual and short-term) appear to be the very type warranting the protection of the scheme.
82 The strict form of the contract provided for the provision of workers. However, given the social purposes of the scheme, it is important to consider the true character of the services which the defendant agreed to provide. Otherwise it would be readily easy for parties to “contract out” of their obligations.
83 As seen already, Mr Blanche agreed that the nature of the services provided by those workers were “electrical services”. He also agreed that the services provided by the defendant to NHP were the services of the workers. Indeed the only services provided to NHP were the services of the workers.
84 When the true character of the services are considered, I am of the view that the defendant was contracting to provide “electrical services” on the evidence before the court.
85 It follows that the defendant was contracting to provide electrical services within the meaning of the Rules.
Normally engaged in making, repairing or maintaining electrical machines instruments or appliances
86 For reasons given already, I consider that the switchboards can properly be characterised as “appliances”.
87 Moreover, an “instrument” is a very broad word which includes a “thing with or by which something is effected”.[13]
[13] Macquarie Dictionary, 2nd Edition, 1991.
88 The evidence of Mr Coslovich was that the core function of the switchboards was the regulation and distribution of electricity. Given this evidence, the switchboards may be characterised as things which effect the regulation and distribution of electrical power.
89 I am therefore satisfied that the workers were normally engaged in making electrical appliances or instruments.
Was not employed in the manufacturing section of the contractor’s business.
90 Although the defendant made many submissions to the effect that the Award was not intended to apply to workers engaged in manufacturing work, the defendant appeared to place relatively little weight on this exclusion.[14]
[14] See e.g. Defendant’s Outline of Closing Submissions, filed in Court on 3 September 2014, paragraph 9.
91 This was appropriate given there was no evidence that the contractor (the defendant) had a “manufacturing section”. To the contrary, the evidence of Mr Blanche was to the effect that the defendant was (solely) “a labour hire company”.[15]
[15] Exhibit 5, Affidavit of Robert Graeme Blanche of 13 August 2014 appearing at CB 799 – 808, paragraph 14.
92 The exclusion therefore does not apply.
Trades Assistant
93 The parties accepted that the position of Trades Assistant is incorporated by an Electrical Worker Grade 2 (clause 4.2.2.1 in Appendix 1 to Part A ; 8.2.2.1 in Part B). Clause 7.1 then fixes a rate of pay for the position of an Electrical Worker Grade 2.
94 There is no actual definition of a trades assistant in the Award although an electrical worker grade 2 is defined as an employee who is engaged in assisting a tradesperson, provided that such assistance shall not include the work of a tradesperson.
95 As found already, the electrical fitters employed by Baytech to assemble the switchboards are engaged in the relevant work of a kind. The defendant accepted that if electrical fitters were so covered it could not sensibly say that trade assistants (in assisting them in their work) were not.
96 Accordingly, I am satisfied that the work of the trade assistants in assisting the assembly of the switchboards is also of a kind for which a rate of pay is fixed by the 1992 Award.
Other employees
97 The plaintiff abandoned any claim in relation to brake press operators in the course of closing.
98 As indicated above, the evidence suggested that test bay employees engaged in testing equipment. Ms Ramsay’s evidence was unclear as to precisely what work standard starters performed.
99 Though these workers may be engaged as “electrical fitter” this does not resolve whether these workers were performing work of a type prescribed in the 1992 Award. In particular, the concept of “testing” of the equipment does not appear to be incorporated in the definition of “electrical services”, nor is it incorporated in the definition of the electrical fitter’s work engaged in “making, repairing or maintaining” electrical machines instruments or appliances.
100 Accordingly, the plaintiff has not established that test bay employees and standard starters are performing work of a kind for which a rate of pay is fixed by the 1992 Award.
Summary
101 I am satisfied that the work of the electrical fitters and trade assistants in assembling the switchboards is of a kind for which a rate of pay is fixed by the 1992 Award.
Industry(b) Is the Prescribed Electrical Contracting Industry Award the Electrical Contracting Award 1992 or the Electrical, Electronic and Communications Contracting Award 2010?
102 Both parties accepted that the 1992 Award was the prescribed award for the purposes of the definition of “construction work”.[16]
(c) Is the kind of work for which a rate of pay is fixed by the Prescribed Electrical Contracting Industry Award limited by the scope and application of that Award?
[16] Defendant’s Outline of Closing Submissions, filed in Court on 3 September 2014, paragraph 5. Summary of defendant’s position on Statement of Issues para (1)(b)
103 The task I have undertaken necessarily involves some application of the words in the Award.
104 However, the focus of the rules is on the issue as to whether the work is “of a kind” for which a rate of pay is fixed. The court is not concerned with whether the terms and conditions of the workers are actually the subject of the 1992 Award. Otherwise the Rules could have stipulated that the work be the “subject of” or “regulated by” the Award.
105 Although the relevant words of the Awards are therefore to be considered, the kind of work is not limited by the general scope and application of the award.
(d) If the answer to (c) above is “Yes”:
(i) is the defendant an “electrical contractor” for the purposes of the Award?
(ii) does the defendant contract to provide “electrical services” for the purposes of the Award to NHP Electrical Engineering Products Pty Ltd?
106 As answered already, the defendant is an “electrical contractor” which contracts to provide “electrical services” pursuant to the 1992 Award.
107 The answer to both questions is therefore “yes.”
Assistants, Electrical Fitters, “A” Grade Licensed Electrical Mechanics or Electricians Special Class contained in the Electrical Contracting Industry Award 1992 or the Electrical, Electronic and Communications Contracting Award 2010?(e) Is the Work of a kind performed by the classifications of Trades
108 For reasons already given the work is of a kind performed by electrical fitters and trades assistants contained in the 1992 Award. Some of the workers may also be A grade Licensed Mechanics (if they hold an A grade licence) and Electricians Special Class (to the extent they are engaged on complex or intricate circuitry).
Summary
109 The answers to the questions are as follows:
110 (a) Yes; I am satisfied that the work of the electrical fitters and trade assistants in relation to the assembly of the switchboards is of a kind for which a rate of pay is fixed by the 1992 Award.
(b) The prescribed award is the 1992 Award.
(c) No; Although the relevant words of the Awards are to be considered the kind of work is not limited by the general scope and application of the award.
(d)(i) Yes.
(d)(ii) Yes.
(e) The Work is of a kind performed by electrical fitters and trades assistants in the 1992 Award; however some of the workers may also be “A” Grade Licenced Electrical Mechanics or Electricians Special Class.
111 The work carried out by the defendant’s electrical fitters and trades assistants for NHP in assembling electrical switchboards is “construction work” within the meaning of the Rules
Construction Industry
112 Pursuant to clause 1.1 “construction industry” meant both the Principal Construction Industry and the Allied Construction Industry. The Allied Construction Industry was then defined very broadly and included the industry of “carrying out “Electrical Services”.
113 “Electrical Services” then included the maintenance of electrical power distribution lines and all associated work as well as:
“(b) the installation of electric light and power, all classes of assembly, wiring, repair and maintenance of electrical installations and appliances including, without in any way limiting the generality of the foregoing, the assembling, installing, diagnosing, servicing and rectifying of faults in any of the following…
by Workers for Employers …who contract to provide such services for which a rate of pay is prescribed under the Electrical Contracting Industry Award.”
114 In the Agreed Statement of Issues, the parties agreed that there were a series of questions necessary to answer in considering the question of the “construction industry” as follows:
2. Is the Work carried out in the Construction Industry? In particular:
(a) What if any limits are imposed by the phrase “in the construction industry” as it appears in the Act?
(b) Is the Work carried out in the Allied Construction Industry, being the carrying out of “Electrical Services”?
(c) Does the Work entail the assembly or wiring of an “Electrical Installation”?
(d) Is an electrical switchboard or panel board an “Electrical Installation”?
(e) Does the defendant contract with NHP to provide “Electrical Services”?
(f) Is the relevant Award referred to in the definition of Electrical Services the Electrical Contracting Industry Award 1992 or the Electrical, Electronic and Communications Contracting Award 2010?
(g) Is a rate of pay prescribed for the services by the Electrical Contracting Industry Award 1992 or the Electrical, Electronic and Communications Contracting Award 2010?
(a) What if any limits are imposed by the phrase “in the construction industry” as it appears in the Act?
115 The defendant submitted that the Rules need to be construed having regard to the fact that the term “construction industry” has a natural and ordinary meaning which does not include manufacturing work carried out in a factory.[17] In so saying the defendant cited the EPM Case[18] and also highlighted that the employees were covered by the Manufacturing Award 2010.
[17] Summary of Defendant’s position on Statement of Issues, filed in Court on 3 September 2014, paragraph 2(a).
[18] See above, n 6.
116 The phrase “in the construction industry” is not defined in the Act but, rather, it is defined in the Rules. Further, by virtue of s. 3(2) of the Act, the definition in the Rules is taken to be the definition of the term in the Act.
117 Although the context suggests that the scheme should not extend beyond the construction industry,[19] the ambit and scope of the “construction industry” concept has therefore been left to the rule makers.
[19] Second Reading Speech of the Construction Industry Long Service Leave (Amendment) Bill, 7 October 2004.
118 Those rule makers, in turn, have evinced an intention to include a very broad concept of construction industry beyond the narrow range which might at first be considered “natural.” This extends to an “allied” industry which includes electrical services, including the “assembly” of electrical installations and appliances. In such circumstances, the concept of the construction industry must be determined according to the special definition in the Rules which supplants any “general or ordinary” meaning.
119 It is also important that, although manufacturing work is excluded from the definition of “metal trades work” in the Rules, this is not the case with “electrical trades work”. If the makers of the rules had wished to exclude manufacturing work from the concept of electrical trades work, it would have been relatively easy for them to do so. The fact that they have not tends to weigh against any general exclusion of manufacturing work.
120 The EPM Case[20] cited by the defendant is also distinguishable. The court there was concerned with a very different narrower definition of the “building and construction industry” in that:
[20] See above, n 6.
(a) the actual words that proved decisive in that case were the relatively circumscribed words “structures, fixtures or works” which are not in issue in this matter; and
(b) the workers in that case were not itinerant and nomadic as they are in this case.
121 The case therefore provides little assistance for the current circumstances.
122 In relation to the 1992 Award, the defendant did not highlight any general exclusion insofar as manufacturing work was concerned. I note in this respect that clause 5.3 (which was not actually referred to by the parties ) provides only a relatively narrow exclusion such that the award does not apply to the manufacturing section of the business of employers who are manufacturers or vendors of equipment who install or maintain that equipment in high and low tension power stations or substations. This does not assist the defendant.
123 The defendant also cited other industrial material, highlighting a Memorandum of Understanding cited in a decision of Commissioner Palmer when he made the 1992 Award.[21]
[21] Memorandum of Understanding, Appendix 5 to Part A of the Electrical Contracting Industry Award 1992; cited in Decision of Commissioner Palmer dated 29 May 1992
124 Insofar as the Memorandum of Understanding was concerned, it opens with the statement that the parties had discussed potential problems arising out of an “overlap” between the Electrical Contracting Industry Award and the Metals Awards. It then states that the 1992 Award should not be “used” by any party to extend the basis of its coverage into areas covered by the Metals Awards.
125 However, as indicated already, the task before the court is whether the workers were performing work “of a kind” for which a rate of pay was fixed by the 1992 Award. The question is not posed as to whether the Award itself would be “used” to actually prescribe the terms and conditions of the workers’ employment. In any event the fact that an “overlap” was cited suggests that the classifications in the 1992 Award may otherwise have application to workers also covered by the Metals Award.
126 Further, as Cross J states in the decision of Builders Licensing Board v Pride Constructions Pty Ltd[22] nothing adverse arises to the plaintiff to the extent that the work might attract an award rate under other awards. Such problems as determining what rate of two awards should actually be paid in the result and/or the result of any demarcation dispute is a question for relevant industrial tribunals and not for this court.
[22] [1979] 1 NSWLR 607, page 612-613.
127 I therefore do not accept that the Rules should be construed according to any “natural meaning”. Instead, the court must apply the definition contained in the Rules.
(b) Is the Work carried out in the Allied Construction Industry, being the carrying out of “Electrical Services”?
128 The concept mirrors the definition of “electrical services” contained in clause 5.2.2.2 of Part A of the Award. For reasons outlined already I consider that the work was assembly and wiring of electrical installations and appliances.
129 The answer is therefore “yes”.
(c) Does the Work entail the assembly or wiring of an “Electrical Installation”?
130 For reasons given already the answer is “yes”.
(d) Is an electrical switchboard or panel board an “Electrical Installation”?
131 For reasons given already the answer is “yes”.
(e) Does the defendant contract with NHP to provide “Electrical Services”?
132 For reasons given already, the answer is “yes”.
Contracting(f) Is the relevant Award referred to in the definition of Electrical Services the Electrical Industry Award 1992 or the Electrical, Electronic and Communications Contracting Award 2010?
133 The definition contains reference to a rate of pay prescribed under the “Electrical Contracting Industry Award.” It does not refer to a “Prescribed Electrical Contracting Award” as is the case with the definition of “Electrical Trades Work”. Although capitalised, there also appears to be no definition of the term. However, the title precisely matches the title of the 1992 Award which is specifically included as a “Prescribed Electrical Contracting Award” (which must have been prescribed by a Special Resolution of the Board: clause 1.1).
134 The defendant submitted that the absence of the word “prescribed” was significant in the context of the definition of “electrical services” and suggested that the Award intended was the successor award known as the Electrical, Electronic and Communications Contracting Award 2010 (the 2010 Award). In support of this submission, the defendant also cited clause 1.2(g) which states that, unless the context otherwise requires, a reference to a document or agreement includes a reference to a document or agreement as novated, altered or replaced from time to time.
135 However, I consider that the reference to the Electrical Contracting Industry Award in the definition of Electrical Services is a reference to the 1992 Award for the following reasons:
· the presence of capitalised letters and the precise matching of the title contemplate a specific Award, namely, the 1992 Award rather than the (differently named) 2010 Award;
· it would be undesirable for the Award to be a different one for the purposes of the 2 definitions, particularly given the similarity of the tasks involved. Thus, it would be nonsensical to undertake the task of considering whether the work has a rate of pay fixed by the relevant Award with respect to 2 different Awards;
· clause 1.1 contains a definition of “Award” which means an award “whether presently in force or not” suggesting that a different, more specific approach should be taken with Awards over other documents. This would enable the Board to determine the classes of workers covered with some certainty.
136 Accordingly the relevant Award referred to in the definition of Electrical Services is the 1992 Award.
(g) Is a rate of pay prescribed for the services by the Electrical Contracting Industry Award 1992 or the Electrical, Electronic and Communications Contracting Award 2010?
137 The 1992 Award.
Summary
138 The answer to the questions are as follows:
(a) The concept of “construction industry” is to be considered pursuant to the special meaning given in the Rules, rather than some general “ordinary” meaning.
(b) Yes; the work was carried out in the Allied Construction Industry, being the carrying out of “Electrical Services”.
(c) Yes: the work entails the assembly or wiring of an electrical installation or appliance
(d) Yes.
(e) Yes.
(f) The 1992 Award
(g) The 1992 Award
139 The work carried out by the defendant’s electrical fitters and trades assistants for NHP in assembling electrical switchboards is in the “construction industry” within the meaning of the Rules
Conclusion
140 I consider that the following orders are appropriate:
· Declare that:
a) All work undertaken for NHP Electrical Engineering Products Pty Ltd by workers employed as electrical fitters or trades assistants by the defendant involving the assembly and/or wiring of electrical switchboards and panel boards is Construction Work for the purposes of the Construction Industry Long Service Leave Act 1997 (Vic) and the Construction Industry Long Service Leave Rules;
b) All work undertaken for NHP Electrical Engineering Products Pty Ltd by workers employed as electrical fitters or trades assistants by the defendant involving the assembly and/or wiring of electrical switchboards and panel boards is performed in the Construction Industry for the purposes of the Construction Industry Long Service Leave Act 1997 (Vic) and the Construction Industry Long Service Leave Rules.
· There be an order on the claim in the sum of $57,440.70 plus interest from and including 2 September 2014 less amounts relating to workers described as “standard starters” and “test bay workers” in JEH10 to the affidavit of Mr John Ernvin Hartley of 17 July 2014.
· The defendant pay the plaintiff’s costs (including reserved costs) of the proceeding.
141 However, I will hear from the parties as to the precise form of final orders.
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