Detector Inspector Pty Ltd v CoInvest Ltd
[2025] VSC 135
•25 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S ECI 2024 01916
| DETECTOR INSPECTOR (VIC) PTY LTD (ACN 602 592 110) | Plaintiff |
| v | |
| COINVEST LIMITED (ACN 078 004 985) (trading as LEAVEPLUS) | Defendant |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 2 & 3 December 2024 |
DATE OF JUDGMENT: | 25 March 2025 |
CASE MAY BE CITED AS: | Detector Inspector Pty Ltd v CoInvest Ltd |
MEDIUM NEUTRAL CITATION: | [2025] VSC 135 |
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EMPLOYER AND EMPLOYEE – Long service leave – Whether plaintiff required to make contribution to portable long service leave fund – Plaintiff seeking declaration that employees are not covered by portable long service leave scheme – No declaration should be made – Whether plaintiff is ‘in the construction industry’ – Whether work performed is ‘construction work’ – Plaintiff is in the construction industry – Work performed is ‘construction work’ – Whether certain rule amendments invalid because not approved by Governor in Council – Rule amendments did not require Governor in Council approval – Whether plaintiff prejudicially affected by a statutory rule which was approved by Governor in Council – Whether s 16 of Subordinate Legislation Act1994 applies – Construction Industry Long Service Leave Act 1997 ss 4, 6 and 7 – Subordinate Legislation Act ss 3, 16 and 17 – Baytech Trades Pty Ltd v CoInvest Ltd [2015] VSCA 342; EnergyAustralia Pty Ltd v CoInvest Ltd [2025] VSC 100 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Young KC Ms R Amamoo | Marshall+Dent+Wilmoth Lawyers |
| For the Defendant | Mr P Hanks KC Ms M Brady | Maddocks |
HIS HONOUR:
This case concerns the portable long service leave scheme (‘portable long service leave scheme’) established by the Construction Industry Long Service Leave Act 1997 (Vic) (‘the Act’).
The plaintiff, Detector Inspector (Vic) Pty Ltd (‘Detector Inspector’) operates a business carrying out safety checks and maintenance of smoke alarms, electrical and gas appliances in residential rental properties in Victoria. It employs gas fitters, electricians and smoke detector technicians (‘the employees’).
The defendant, CoInvest Ltd currently trades as LeavePlus (‘LeavePlus’) and is the trustee of the Construction Industry Long Service Leave Fund (‘the fund’).
A dispute has arisen between Detector Inspector and LeavePlus regarding whether Detector Inspector is required to make contributions to the fund in respect of the employees. On 20 February 2024 LeavePlus determined that the employees are covered by the portable long service leave scheme and that Detector Inspector is required to make contributions to the fund in respect of the employees (‘the determination’). Detector Inspector says their employees are not covered by the portable long service leave scheme and so they are not required to make contributions.
Detector Inspector seeks relief in the form of an order quashing the determination, declarations to the effect that the employees are not covered by the portable long service leave scheme and a mandatory injunction seeking return of an amount it paid to LeavePlus in respect of the employees, together with interest. LeavePlus says that relief should not be granted.
For the reasons that follow, Detector Inspector is not entitled to the relief it seeks.
The Act
The Act establishes a portable long service leave scheme for workers employed to perform construction work in the construction industry. Section 4 of the Act obliges an employer to pay to LeavePlus a long service leave charge in respect of every such worker employed by them. Section 4 also provides that the charge must not be more than 3% of the ordinary pay of the worker.
Section 6 of the Act creates an entitlement to long service leave for workers in respect of their continuous service in the construction industry.
The Act contains a number of relevant definitions:
(a) fund means the Construction Industry Long Service Leave Fund established under the trust deed;
(b) trust deed means the trust deed executed by [LeavePlus] as trustee on 1 April 1997 as amended and in force for the time being; and
(c) trustee means [LeavePlus] or any new trustee appointed under, and in accordance with, the trust deed.
Critically, however, the Act does not define the terms construction industry or construction work. Instead, s 3(2) of the Act provides:
Words and expressions used in the rules set out in Schedule 2 of the trust deed and in this Act have the same respective meanings in this Act as they have in those rules as amended and in force for the time being.
Section 7 of the Act provides an important limitation on the powers of LeavePlus and is central to the resolution of many of the questions which arise in this proceeding. It provides as follows:
Restriction on powers of trustee
(1)The trustee must not, without the prior approval of the Governor in Council, exercise any power, authority or discretion given to the trustee by the trust deed the exercise of which would have the effect of enlarging the class of persons capable of being paid benefits out of the fund.
(2)Without limiting subsection (1), that subsection—
(a)has effect with respect to any addition to, or any amendment, modification, variation, deletion, revocation, substitution or replacement of, the whole or any part of the trust deed by which—
(i)the meaning or scope of the expressions "construction work" or "construction industry" is enlarged, whether directly or indirectly; or
(ii)an award is prescribed for the purposes of the fund;
(b) does not have effect with respect to a decision as to whether or not a particular person is within a class of persons then capable of being paid benefits out of the fund (whether as a result of an amendment of a prescribed award or otherwise) or as to the amount of any benefit to which such a person is entitled;
(c) does not have effect with respect to a decision as to the amount of any benefit capable of being paid out of the fund.
The Rules
As is evident from the definitions cited above, at the time the Act was made LeavePlus was trustee of the fund pursuant to a trust deed executed on 1 April 1997 (‘trust deed’). Schedule 2 of the trust deed contains rules of the fund (‘the Rules’) and those rules have at all times contained the critical definitions of ‘Construction Industry’ and ‘Construction Work’ which together determine whether an employer is required to make contributions in respect of an employee. The Rules capitalise defined terms. For consistency where I refer to terms defined in the Rules, I have adopted the same approach.
Since the Act came into force the Rules have been amended or, at least, purportedly amended on three relevant occasions:
(a)an amendment on 13 October 1998, following approval by the Governor in Council on 29 September 1998, which inserted a definition of ‘Electrical Services’ (‘the 1998 amendment’);
(b)an amendment on 2 December 2008 which changed the definition of ‘Award’ (‘the 2008 amendment’); and
(c)amendments on 11 November 2014 which replaced the former rules with a new set of rules (‘the 2014 amendments’).
For ease of reference, in this judgment, I will refer to the Rules in the form after the 2014 amendment as ‘the current Rules’ and the Rules prior to that date as ‘the former Rules’.
Detector Inspector says:
(a)the 2014 amendments are invalid in several respects;
(b)the 2008 amendment is invalid;
(c)the 1998 amendment cannot prejudicially affect Detector Inspector or subject Detector Inspector to any liability because it is a statutory rule and there has been no compliance with s 17 of the Subordinate Legislation Act 1994 (Vic) (‘SLA’); and
(d)by reason of those matters, the determination should be set aside.
The detail of the relevant changes effected by the 2014 amendments is discussed below. In the former Rules, Construction Work had, in effect, been defined by reference to ‘work of a kind for which a rate of pay is fixed by’ a prescribed award. In the current Rules, the references to prescribed awards have been removed and an attempt has been made to replicate the substance but improve the drafting of relevant award provisions, particularly in three appendices. Detector Inspector says, amongst other things, that the redrafting exercise has resulted in amendments caught by s 7 of the Act. The 2014 amendments were not approved by the Governor in Council before they were made. Detector Inspector submits that the result is those amendments are invalid.
The 2014 amendments which form the basis of Detector Inspector’s submissions may be summarised as follows:
(a)the removal of a routine or minor maintenance exception from the definition of Construction Industry and its placement in the definition of Construction Work (‘the routine or minor maintenance amendment’);
(b)the removal of the phrase ‘who contract to provide such services for which a rate of pay is prescribed under the Electrical Contracting Industry Award’ from the definition of ‘Electrical Services’ (which in turn forms part of the definition of Construction Industry) (the ‘ECI Award amendment’);
(c)a reconfiguration of the definition of ‘fire alarm systems’ in the definition of Electrical Services (‘the fire alarm systems amendment’); and
(d)the removal of references to prescribed awards, in particular in the definition of Electrical Trades Work and Building Trades Work (which in turn are used in the definition of Construction Work) (‘the prescribed award amendment’).
In addition, Detector Inspector argues that the routine or minor maintenance, ECI Award and fire alarm systems amendments are invalid because no referendum was held as required by clause 13.4 of the trust deed and makes a similar argument because no referendum was held under rule 4 of the former Rules.
Detector Inspector says the 2008 amendment required prior approval of the Governor in Council under s 7 of the Act. It was not so approved and so Detector Inspector says that amendment was invalid.
The 1998 amendment was approved by the Governor in Council. Detector Inspector says it was a statutory rule within the meaning of s 3 of the SLA. It says that there has been no compliance with s 17 of the SLA. As a result, Detector Inspector says it cannot be prejudicially affected by the 1998 amendment.
The determination
On 20 February 2024 LeavePlus’ board of directors (‘Board’) made the determination, that is it determined that Detector Inspector’s gas fitters, electricians and smoke detector technicians were performing Construction Work within the Construction Industry.
Construction Industry
‘Construction Industry’ is defined under the current Rules to mean any of the industries of:
(a)carrying out the construction (including pile driving), erection, installation, reconstruction, re-erection, renovation, alteration, demolition or maintenance of or repairs of any of the following:
(i)buildings;
…
(xvi)structures, fixtures or works for the use of any of the buildings, structures or works referred to in paragraph (a)(i) to (a)(xv) above;
…
(f)carrying out Electrical Services.[1]
(emphasis added)
[1]Court Book (‘CB’) 1840-1841.
‘Electrical Services’ is relevantly defined to mean:
(c)all classes of installation, assembly, diagnosing, servicing, wiring, rectification of faults in, repair and maintenance of, electrical installations and appliances including, but not limited to, any of the following:
…
(xvi)electrical switchboards; and
…
(e)fire alarm systems work, meaning all industries or trades concerned with the installation, repair, modification, maintenance, testing and servicing of fire alarms, fire detectors, fire-suppression signs, bells and associated equipment,
carried out by:
(f)Workers; or
(g)Working Sub-Contractors,
where the Worker’s Employer or Working Sub-Contractor contracts to provide:
(h)the services listed in (a) to (e) above to a third person; or
(i)Workers or Working Sub-Contractors to provide the services listed in (a) to (e) above to a third person.[2]
[2]CB 1843-1844.
The Board determined that Detector Inspector’s business could properly be described as carrying out the installation, maintenance of or repairs to fixtures for use in buildings. The Board determined that the work performed by the gas fitters employed by Detector Inspector was work performed within the Construction Industry because gas stovetops, hot water services and installed gas heaters would all constitute fixtures of a building and the gas fitters were engaged in the repair or maintenance of those fixtures.
LeavePlus determined that Detector Inspector was also carrying out Electrical Services because:
(a) it sent its electricians to customers’ buildings to carrying out tasks including the installation, testing, servicing, rewiring, repairing and maintenance of switchboards (and other electrical installations and appliances) as well as testing and maintaining smoke detectors; and
(b) its smoke alarm technicians were installing, maintaining and testing smoke detectors and so Detector Inspector was carrying out ‘fire alarm systems work’.
Construction work – gas fitters
‘Construction Work’ is relevantly defined in the current Rules to mean:
(a) work:
(i) performed in the Construction Industry; and
(ii)which is Building Trades Work, Electrical Trades Work, Metal Trades Work or Other Trades Work’; or
…
but does not include work comprising maintenance or repairs of a routine or minor nature by a Worker for an Employer who is not engaged substantially in the Construction Industry;[3]
[3]CB 1842.
The current Rules define Building Trades Work as follows:
(a) work of a kind which is within:
(i) the scope; and
(ii)one or more of the classifications,
set out in appendix A which is performed in Victoria; or…[4]
[4]CB 1840.
Appendix A contains 16 ‘scopes’, scope 4 includes work performed by plumbers in connection with the maintenance of a building but only by persons engaged by building and construction industry employers. That work is specifically defined to include plumbing, gas fitting, pipe fitting or domestic engineering work, whether prefabricated or not and work in connection with gas appliances, fittings, services or installations. Plumbers (including but not limited to gasfitters) are listed in the classifications in Appendix A.
LeavePlus determined that the gas fitters employed by Detector Inspector were carrying out Building Trades Work because:
(a) their work is performed in connection with the maintenance of buildings;
(b) Detector Inspector could be characterised as a building and construction industry employer because it was in the construction industry as defined and, relying on EPM Concrete Pty Ltd v Building and Construction Industry Long Service Leave Payments Corporation,[5] the two industry descriptors could be regarded as equivalent;
[5](1985) 23 IR 430.
(c) they carry out maintenance work in respect of gas fitting and/or in connection with gas appliances, fittings, services or installations; and
(d) they are plumbers.
Construction Work – electricians
Electrical Trades Work is relevantly defined by the current Rules to mean:
(a)work of a kind which is within one or more of the classifications set out in Appendix B and which is performed in Victoria; or…[6]
[6]CB 1844.
Appendix B sets out 34 classifications including:
11. Electrical tradesperson.
…
14 Electronic equipment tester/installer, including but not limited to a person:
…
14.3who inspects and/or tests fire alarms or security alarm equipment.[7]
[7]CB 1922.
LeavePlus determined that the electricians employed by Detector Inspector fell into two categories:
Service Work Electricians who were qualified electricians required to carry out the work of inspecting and testing switchboards, power points, lights and electrical appliances, as well as performing minor repairs to faulty or damaged switches and the like, and may involve testing and maintenance of smoke detectors.
Further Works Electricians who are qualified electricians required to carry out switchboard repairs and upgrades, consumer mains upgrades, re-wiring and installation of appliances, and repair and replacement of lighting, transformers and power points.[8]
[8]CB 374.
The Board determined those two categories of electrician fell within Appendix B classifications including electrical tradesperson or electronic equipment tester/installer.
Construction Work – smoke alarm technicians
Appendix B of the current Rules contains a classification ‘Alarm/security tester’. That classification includes a person who is engaged to ‘carry out basic inspection and test procedures on electrical fire detection systems, including, but not limited to, panes, local alarms, detectors, signs and/or associated ancillary equipment’ and who ‘is able to carry out minor repairs and changes to detector circuitry, replace detectors, globes, batteries, etc as required’.[9]
[9]CB 1921.
The Board noted that Smoke Alarm Technicians did not need to hold any particular trade qualifications but were engaged to carry out work installing, servicing and maintaining smoke detectors (as well as sometimes checking window coverings with cords for safety). Those employees were considered to fall within the classifications of alarm/security tester or electronic equipment tester/installer within Appendix B.
Routine or minor maintenance
Construction Work does not include work comprising maintenance or repairs of a routine or minor nature by a Worker for an Employer who is not engaged substantially in the Construction Industry (‘the routine or minor maintenance carve out’). LeavePlus determined that the work performed by Detector Inspector’s employees did not fall within the routine or minor maintenance carve out because Detector Inspector was properly characterised as substantially engaged in the Construction Industry. As a result, the exception did not apply.
Detector Inspector says it is not ‘substantially in’ the Construction Industry. I do not accept this is so. In EnergyAustralia Pty Ltd v CoInvest Ltd (‘EnergyAustralia’),[10] I discuss in detail various authorities regarding the process of characterisation to determine whether an employer is substantially in an industry. In short, it involves ascertaining the substantial character of the employer’s enterprise by reference to the particular industry definition which is under consideration. It does not require an identification of the predominant purpose of the employer, because an employer may be substantially within more than two industries.[11]
[10][2025] VSC 100, [47]–[68].
[11]Ibid [48].
I am satisfied that Detector Inspector is in the industry of carrying out maintenance of or repairs of fixtures and is in the industry of carrying out Electrical Services as defined. On the facts of this case, I am satisfied that that is Detector Inspector’s predominant purpose and not just a substantial purpose. Detector Inspector’s business is substantially within the Construction Industry.
Detector Inspector’s employees covered by scheme
As a result of the above, LeavePlus determined that the gas fitters, electricians and smoke alarm technicians were all employed to perform Construction Work in the Construction Industry.
Principles of construction
In its submissions Detector Inspector emphasised two aspects of the present circumstances which it said should guide my construction of the Act and the former and current Rules.
First, it emphasised the unique or nearly unique nature of the legislative regime whereby a private entity, LeavePlus, could affect the definition of legislated terms. Secondly, it emphasised that the charge imposed by s 4 of the Act was properly to be regarded as a tax. Each of these matters, it was said, should lead me to ‘narrowly construe’ LeavePlus’ power of amendment.
LeavePlus accepts that its power to amend the definitions of terms used in legislation is unusual but points to s 7 of the Act as an important safeguard in that respect. It also accepts that the charge imposed in s 4 of the Act is a tax, but says that that characterisation ultimately does not fundamentally change the task of construing either the Act or the former and current Rules.
For present purposes, it is sufficient to note that the primary task of construction of both the Act and the former and current Rules is to ascertain their meaning by reference to text, context and purpose. That fundamental task is not changed by the two considerations which Detector Inspector emphasises. In particular:
The fact that the Act is a taxing statute does not make it immune to the general principles governing the interpretation of statutes. The courts are as much concerned in the interpretation of revenue statutes as in the case of other statutes to ascertain the legislative intention from the terms of the instrument viewed as a whole.[12]
[12]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 323 (Mason and Wilson JJ).
A number of the authorities on which Detector Inspector relies stand for the proposition that it will require clear and unequivocal language to impose a tax and it will require clear and unequivocal language to construe legislation as involving the delegation of a power to tax to the Executive or, as here, a private body. So much may be accepted. Here there is clear language. Section 4 imposes a compulsory charge on employers whose employees perform construction work in the construction industry.
It was central to Parliament’s intention in enacting the Act that it wanted to step away from its prior involvement in the portable long service leave scheme and for the scheme to be administered by the construction industry. The Act repealed the Construction Industry Long Service Leave Act 1983 (Vic). In his second reading speech on the introduction of the Bill which became the Act the Minister said:
The purpose of this bill is to repeal the Construction Industry Long Service Leave Act 1983 and to provide for a portable long service leave scheme owned and administered by the construction industry.
…
The transfer of the scheme to construction industry control will devolve the government of its direct involvement in a non-key function that is presently undertaken for the benefit of a sector of private industry. It is inappropriate for government to have a role, and a related contingent liability, in providing this function. This bill enables the construction industry to control the scheme and places responsibility on the industry to manage the ongoing operations of the scheme for the maximum benefit of construction industry workers and employers.[13]
[13]Victoria, Parliamentary Debates, Legislative Assembly, 23 April 1997, 824.
The purpose of the Act is described as providing for the scheme established by the Act to be administered in accordance with a trust deed by a company. The language devolving the right to levy charges to a private body could not be clearer or more unequivocal.
More pertinently, Detector Inspector pointed to those authorities which refer to the principle of construction that, in construing legislation which imposes a tax, if two meanings are reasonably open after applying the principles of statutory interpretation, the interpretation should be resolved in favour of the taxpayer.[14] Nonetheless, that principle requires as its starting point the application for the ordinary principles of statutory interpretation, as the High Court said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):[15]
First, tax statutes do not form a class of their own to which different rules of construction apply; they are to be construed by application of the settled principles referred to above. Secondly, the fact that a statute is a taxing Act, or contains penal provisions, is part of the context and is therefore relevant to the task of construing the Act in accordance with those settled principles.[16]
[14]Redland City Council v Kozik (2024) 98 ALJR 544, [177] (Gordon, Edelman and Steward JJ), citing Herzfeld Prince, Interpretation, 2nd ed (2020), pp 273-275 [10.150] (Construction in Favour of Taxpayer); Pearce, Statutory Interpretation in Australia, 9th ed (2019), pp 344-356 [9.42]-[9.59] (Taxing or Fiscal Provisions).
[15](2009) 239 CLR 27.
[16]Ibid 49 [57] (Hayne, Heydon, Crennan and Keifel JJ).
In particular the task of construing the amendments to the Rules does not require an approach which assumes in favour of the taxpayer a narrow construction of the Rules before amendment and a broader construction of the Rules after amendment, so as to find invalidity. In construing the amendments, it is appropriate to apply the presumption against invalidity.[17]
[17]Re Baden’s Deed Trusts [1969] 2 Ch 388, 400 (Harman LJ), 402 (Karminski LJ); Inland Revenue Commissioners v McMullen [1981] AC 1, 14 (Lord Hailsham LC).
Construing s 7 of the Act
The parties were at odds over the construction which should be given to s 7(2) of the Act.
Detector Inspector said it was a deeming provision which in effect created a statutory fiction that certain things which would otherwise not be caught by s 7(1) were. So that, for example, an amendment which expanded the definition of ‘Construction Industry’ was one which required prior approval of the Governor in Council whether or not it had the effect of enlarging the class of persons capable of being paid benefits out of the fund, within the meaning of s 7(1).
LeavePlus on the other hand, said that s 7(2) was in the nature of a ‘for the avoidance of doubt’ provision, that is, it did not add to the effect of s 7(1) but rather, for the avoidance of doubt, set out categories which could fall within (in the case of paragraph (2)(a)) or outside (in the case of paragraph (2)(b) and (c)) of s 7(1).
I prefer the construction for which LeavePlus contends:
(a) First, that construction is more consistent with the language of sub-section (2) which provides that ‘without limiting sub-section (1), that sub-section’ has effect or does not have effect with respect to particular classes of activity. The language of the chapeau is more consistent with an explication of the matters which fall within or outside of sub-section (1) than it is with a deeming provision;
(b) The classes of decision referred to in paragraphs (b) and (c) of the sub-section are more consistent with s 7(2) being a ‘for the avoidance of doubt’ provision, than with it creating a statutory fiction or deeming. Those matters are not matters which obviously fall within s 7(1) and so must be deemed to fall outside it, but they are matters which, for the avoidance of doubt, the draftsperson might wish to make clear do not trigger the provisions in s 7(1);
(c) The evident purpose of s 7 when regard is had to the text of s 7(1) is to ensure that the trustee cannot enlarge the class of persons capable of being paid benefits out of the fund without prior approval of the Governor in Council. There is no particular reason why Parliament should have imposed a similar restriction on, for example, the prescription of an award if it did not have that effect of enlarging the class of persons capable of being paid benefits out of the fund or a change to the definition of Construction Industry if it did not have that effect; and
(d) Extrinsic materials confirm that the purpose of s 7 was to ensure that the trustee could not enlarge the class of persons capable of being paid benefits out of the fund without prior approval of the Governor in Council. The Explanatory Memorandum for the Construction Industry Long Service Bill describes clause 7 in almost precisely those terms. In his second reading speech the Minister said:
The bill does not permit the trustee to enlarge the class of persons to be paid benefits out of the fund, without the prior approval of Governor in Council. As a result, the government will retain an oversight function, to ensure that the trustee does not extend the coverage of the scheme beyond ‘construction work in the construction industry'.[18]
[18]Victoria, Parliamentary Debates, Legislative Assembly, 23 April 1997, 824.
Nor does the fact that s 4 is characterised as a tax provide a basis to interpret s 7 in the way for which Detector Inspector contends. Its preferred construction is not, in my view, reasonably open after application of the ordinary principles of statutory construction. In any event, its preferred construction would require Governor in Council approval for amendments which had no impact on the ambit of the tax imposed, that is, amendments which did not enlarge the class of persons capable of being paid benefits out of the fund.
In short, it is my view that s 7 only operates to require approval of the Governor in Council where the effect of the exercise of the power, authority or discretion given to the trustee is to enlarge the class of persons capable of being paid benefits out of the fund.
The routine or minor maintenance amendment
In the former Rules, the routine or minor maintenance carve out was an exception to the definition of Construction Industry. In the current Rules, those words are an exception to the definition of Construction Work.
Detector Inspector says that moving the routine or minor maintenance carve out from the definition of Construction Industry to the definition of Construction Work enlarges the class of persons capable of being paid benefits out of the fund, contrary to s 7(1) of the Act, and further modifies the definition of ‘Construction Industry’ such that it is enlarged and is contrary to s 7(2) of the Act. I have already given my reasons for rejecting a contention that Governor in Council approval was required for an enlargement of the definition of Construction Industry which does not also have the effect of enlarging the class of persons who are capable of being paid benefits out of the fund.
Detector Inspector says that the routine or minor maintenance amendment is caught by s 7(1) because:
(a) A company (like Detector Inspector) which might not have been part of the Construction Industry under the previous definition and whose employees perform routine or minor maintenance is now subject to the charge in respect of those employees; and
(b) Whilst s 4 of the Act requires a charge to be paid in respect of employees who perform construction work in the construction industry, the class of persons to whom benefits are payable, is expanded because s 6 of the Act defines the eligibility of an employee to receive a benefit by reference to their continuous service ‘in the construction industry’.
Neither proposition is made out.
Implicit in Detector Inspector’s first proposition is that an entity whose employees were only performing routine or minor maintenance work would not have been in the Construction Industry as that term was defined under the former Rules. That contention ignores the fact that the carve out only applies where an Employer is not ‘substantially in’ the Construction Industry.
Thus, there are relevantly three sets of circumstances which need to be considered:
(a) An Employer who is in the Construction Industry and whose employees perform Construction Work which is not repair or maintenance work of a routine or minor nature;
(b) An Employer who is substantially in the Construction Industry but whose employees perform work which is repair or maintenance work of a routine or minor nature; and
(c) An Employer who is not substantially in the Construction Industry and whose employees are engaged in work which is repair or maintenance work of a routine or minor nature.
The routine or minor maintenance amendment did not alter the characterisation of Employers in categories (a) or (b) above. Under the former Rules, they were in the Construction Industry and under the current Rules, they remain in the Construction Industry.
An Employer in category (c) above would not have been in the Construction Industry under the former Rules but might be so characterised under the current Rules. However, because the employees fall within the routine or minor maintenance carve out, their work is not Construction Work as defined. As a result, the Employer in category (c) was not obliged under the former Rules to make contributions in respect of those employees and is not obliged under the provisions of the current Rules to make contributions in respect of those employees.
It follows that for a company which is substantially in the Construction Industry, nothing has changed regarding its liability for payment in respect of its employees and for a company that was not substantially in the Construction Industry, nothing has changed with respect to its liability to pay for those employees.
As is evident, I am satisfied that Detector Inspector is substantially in the Construction Industry (category (b) above) and nothing has changed regarding its liability under the Act by reason of the routine or minor maintenance amendment. However, even if, contrary to my view, Detector Inspector were in category (c) above, nothing would have changed regarding its liability under the scheme.
The contention of Detector Inspector that the routine or minor maintenance amendment has enlarged the class of persons capable of being paid benefits out of the fund because it has altered the ultimate characterisation of the work of employees for companies like Detector Inspector who only perform routine or minor maintenance is not made out.
Section 6 of the Act provides as follows:
(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.
(2)Every working sub-contractor who is paid long service leave charges is entitled to be paid benefits out of the fund in respect of continuous service in the construction industry.
(3)The amount of the entitlement and the method by which that amount is to be calculated are as determined from time to time by the trustee in accordance with the trust deed.
Detector Inspector says that because s 6 defines the entitlement to be paid benefits by reference to continuous service in the construction industry that an amendment to the former Rules which expanded the definition of that industry had the effect of expanding the class of persons to whom benefits may be paid. In particular, it contends that workers employed on routine or minor maintenance work for Employers not substantially in the Construction Industry would be entitled to be paid benefits out of the fund under the current Rules, when under the former Rules they would not have been.
That proposition ignores how ‘continuous service’ in the Construction Industry is defined. ‘Continuous service’ is not defined by the Act, but as s 6(3) provides, is to be calculated in accordance with the trust deed. In the current Rules, continuous service has the meaning given to it by rr 31.1 and 35.1. For present purposes, it is enough to note that continuous service for a Worker or Sub-Contractor under those rules means all of the ‘Service’ of the Worker or Sub-Contractor, unless broken. ‘Service’ by a Worker or Sub-Contractor means (subject to some other matters which are not presently relevant) the performance of Construction Work by a Worker or Sub-Contractor as the case may be.
Thus, the fact that the routine or minor maintenance amendment expanded the ambit of the Construction Industry does not lead to the conclusion that the class of persons capable of being paid benefits out of the fund has been enlarged. Continuous Service is defined by reference to Construction Work and so the class of persons entitled to benefits under s 6 of the Act is the same under the current Rules as it was under the former Rules for Workers or Sub-Contractors performing routine or minor maintenance work.
Detector Inspector has not shown that the routine or minor maintenance amendment had the effect of enlarging the class of persons capable of being paid benefits out of the fund. As a result, that amendment did not require prior approval of the Governor in Council.
The ECI Award amendment
In the former Rules Electrical Services were defined as:
(a) The maintenance of electric power distribution lines and all associated work; and/or
(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:
…
(xiv) fire alarm systems;
…
by Workers for Employers and/or by Working Sub-Contractors who contract to provide such services for which a rate of pay is prescribed under the Electrical Contracting Industry Award.[19]
(emphasis added)
[19]CB 1345-1346.
For ease of reference, I will refer to the bolded words as the ‘ECI Award condition’ and the Electrical Contracting Industry Award as the ‘ECI Award’.
The 2014 amendment removed the ECI Award condition from the definition of Electrical Services and replaced it with the following (‘the current contracting restriction’):
carried out by:
(f) Workers; or
(g)Working Sub-Contractors,
where the Worker’s Employer or the Working Sub-Contractor contracts to provide:
(h) the services listed … above to a third person; or
(i)Workers or Working Sub-Contractors to provide the services listed … above to a third person,
but does not include services performed or work carried out in the manufacturing section of the business of an Employer who:
(j) manufactures or sells plant or equipment; and
(k) installs or maintains that plant or equipment in:
(i) high and low tension power stations; or
(ii)substations for the generation or transmission of electric power.[20]
[20]CB 1844.
Did replacing the ECI Award condition with the current contracting restriction expand the definition of Construction Industry and enlarge the class of persons capable of being paid benefits out of the fund? Detector Inspector says it did. LeavePlus says it did not.
Detector Inspector says that, in particular, the words ‘for which a rate of pay is prescribed under the [ECI] Award’ mean that that award had to apply to the work of the Workers[21] employed by the Employer in order for an Employer to fall within the definition of Construction Industry under the former Rules.
[21]Relevantly defined by the Rules, to be a person who ‘performs work under a contract of employment’.
Detector Inspector contends that the phrase ‘who contract to provide such services for which a rate of pay is prescribed under the [ECI] Award’ more naturally applies to the Worker than it does to the Employer. It says, therefore, that the inquiry is whether the relevant Worker has contracted with their Employer for a rate of pay prescribed under the ECI Award. In other words, the Workers’ work had to be subject to the ECI Award for the Employer to fall within the definition of Electrical Services and thus to fall within the definition of Construction Industry. The current contracting restriction does not require that the Workers’ work be subject to the ECI Award and does not require that the Employer be respondent to that award. Thus, on Detector Inspector’s construction of the ECI Award condition, the ECI Award amendment has enlarged the class of persons capable of being paid benefits out of the fund.
LeavePlus says that construction is not correct. It says that when the ECI Award condition is properly construed the provisions of the current Rules accurately reflect the limitation which was contained in the former Rules. LeavePlus says the words of the ECI Award condition apply to the nature of the services provided by the Employer or Working Sub-Contractor.
I do not accept Detector Inspector’s contention as to how the ECI Award condition should be construed. I have reached that conclusion having regard to the text of the ECI Award condition, its context in the former Rules and the purpose of the former Rules and Act.
The following matters, in my view, demonstrate that the ECI Award condition is not to be construed as Detector Inspector contends:
(a) First, and most obviously, the phrase ‘who contract to provide such services for which a rate of pay is prescribed under the [ECI] Award’ applies to Working Sub-Contractors. The ECI Award did not prescribe rates of pay for Working Sub-Contractors. It prescribed rates of pay for employees. This suggests that the phrase ‘for which a rate of pay is prescribed under the [ECI] Award’ is a descriptive phrase which limits the nature of the relevant services provided, rather than imposing a requirement that persons be paid under the award.
(b) A further textual indication is the use of the phrase ‘who contract to provide such services’. A Working Sub-Contractor would be described as contracting to provide services, so too would an Employer but that is not a phrase which would ordinarily be used to describe an employee working under a contract of service, rather than an independent contractor or employer operating under a contract for services. This strongly suggests that the relevant ‘who’ is the Employer and/or the Working Sub-Contractor, not the Worker.
(c) Further, the construction for which Detector Inspector contends gives the words ‘for Employers’ no work to do. If the phrase ‘who contract to provide such services for which a rate of pay is prescribed under the ECI Award was applicable only to Workers, then there would have been no need to include the words ‘for Employers’ – those words would be otiose.
(d) It is plain that the former Rules were, in this respect, drafted with an intention to draw a distinction between the industry of Employers and the occupation of employees. In that context, the definition of Electrical Services is part of a definition of the industry of employers and so it is more likely that the relevant portion of the definition seeks to characterise and qualify the nature of the industry, rather than the nature of the work performed by an employee. In other words, this also makes more likely that the ‘who’ is the Employer and the Working Sub-Contractor, rather than the employee.
(e) The definition of Electrical Trades Work in the former Rules referred to ‘work of a kind’ to which the ECI Award applied. Those words do not require that the work actually be subject to the ECI Award, but rather impose a requirement that the work performed be of the same ‘genus’ as work governed by pay rate classifications in the award.[22] If the definition of Electrical Services required that work performed actually had to be subject to the ECI Award then the words ‘of a kind’ in the definition of Electrical Trades Work would be otiose.
[22]Baytech Trades Pty Ltd v CoInvest Ltd [2015] VSCA 342, [78] (Maxwell P, Tate JA and John Dixon AJA).
(f) The provisions of the ECI Award demonstrate that it is concerned to capture work performed by Employers contracting to others for the provision of services. The award was not intended to capture work performed by electricians and others in manufacturing establishments: see clauses 5.1, 5.2.1 and 5.3 of the award and Baytech Trades Pty Ltd v CoInvest Ltd (‘Baytech’).[23] In that context, the ECI Award condition is properly to be regarded as an attempt to distinguish between ‘on site work’ and ‘in house work’.
[23]Ibid [70].
(g) Finally, as I said in EnergyAustralia:[24]
[24][2025] VSC 100.
The evident purpose of the Act and the former rules was to create a system of portable long service leave for the construction industry. That purpose would have been undermined if an employee ceased to be covered by the scheme because:
(a)they moved from an employer in the construction industry who was respondent to the award to an employer in the construction industry who was not;
(b)their terms and conditions of employment came to be regulated by an enterprise agreement or an enterprise specific award; or
(c)because their employer ceased to be regulated by the award because their employer had only been bound by the award as a member of a respondent employer organisation and had since resigned that membership.[25]
[25]Ibid [93].
I accept that there is a degree of inelegance regarding the drafting of the ECI Award condition but, having regard to all of the above matters, I am satisfied that text, context and purpose point inextricably toward a construction which focuses on whether the Employer (or Working Sub-Contractor) contracted for the provision of services which fell within the scope of the ECI Award.
The question then is whether the re-drafting utilised in the current Rules has enlarged the class of persons capable of being paid benefits out of the fund. In my view, it has not.
As I would construe the ECI Award condition, it ensured that that services provided by the Employer or Working Sub-Contractor were services which fell within the scope of the ECI Award. The ECI Award:
(a) applied to the provision of electrical services by electrical contractors;
(b) defined electrical contractor to mean an entity who contracted to provide electrical services;
(c) defined electrical services in terms which were reflected in the definition of Electrical Services in the former Rules; and
(d) specifically excluded work in the manufacturing section of the business of an employer who were ‘manufacturers or vendors of plant or equipment who install or maintain the said plant and equipment in high and low tension power stations and/or substations for the generation and/or transmission of electric power’.[26]
[26]CB 833.
The current contracting restriction:
(a) limits the scope of Employer and Working Sub-Contractor to those who contract with third parties, reflecting the limitation in (b) above;
(b) qualifies a definition of Electrical Services which is (subject to the discussion below regarding fire alarm systems) in the same terms as the definition of electrical services in the ECI Award; and
(c) provides for an exclusion which replicates the substance of (d) above.
I am satisfied that properly construed, the current Rules do not expand the class of persons to whom the definition of Electrical Services applies.
As a result, the ECI Award amendment did not require Governor in Council approval under s 7(1) of the Act.
The fire alarm systems amendment
The former Rules relevantly provided that Electrical Services means:
…
(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:
…
(xiv) fire alarm systems.[27]
[27]CB 1346.
In the current Rules paragraph (b) of the definition of Electrical Services has been split into four separate paragraphs:
(a) a paragraph specifying the installation of electric light and power, now paragraph (b) of the definition;
(b) a paragraph providing a separate descriptor of security alarm systems work, now paragraph (d) of the definition;
(c) a paragraph providing a separate descriptor of fire alarm systems work, now paragraph (e) of the definition; and
(d) a paragraph containing the balance of the former paragraph (b), now paragraph (c) of the definition.
The standalone paragraph dealing with fire alarm systems work is in the following terms:
(e)fire alarm systems work, meaning all industries or trades concerned with the installation, repair, modification, maintenance, testing and servicing of fire alarms, fire detectors, fire-suppression signs, bells and associated equipment.[28]
[28]CB 1844.
Detector Inspector says that the amendment to the definition of Electrical Services effected by the fire alarm systems amendment has expanded the definition of Construction Industry and, as a result, required prior approval by the Governor in Council. In this regard, it relies on two aspects of the standalone definition of fire alarm systems work:
(a) The introduction of the words ‘all industries or trades concerned with’ which are said to be words of expansion which have extended the scope of fire alarm systems work; and
(b) The reference to ‘fire suppression signs, bells and associated equipment’ which are said to expand the definition beyond ‘electrical installations and appliances’.
LeavePlus contends that the revisions to the definition of fire alarm systems do not expand the definition of Electrical Services because the additional words incorporate a definition from the ECI Award. So, when regard is had to the terms of the ECI Award condition in the former Rules, the more fulsome definition of fire alarm systems in the current Rules is the way that term would have been read under the former Rules in any event.
Clause 5.2 of the ECI Award provides a definition of Electrical Services which is relevantly in precisely the same terms as the definition of Electrical Services in the former Rules (except for the words of the ECI Award condition). However, clause 8.2 which is headed ‘Definitions Applicable to all Parts of the Award’ provides a definition in clause 8.2.5.1 as follows:
‘Fire alarm systems’ means the industry and trades which are concerned with the installation, repair, modification, maintenance, testing and servicing of fire alarms, detectors, fire-suppression signs, bells and associated equipment.[29]
[29]CB 836.
Detector Inspector says that the definition of fire alarm systems in clause 8.2.5.1 cannot give meaning to the term fire alarm systems in clause 5.2.2 of the award because the former refers to industries or trades and the latter refers to things. That ignores that clause 5.2 is itself a definition of the industry to which the award applies. Further, it is evident that the only other instance in the award of the use of the term ‘fire alarm systems’ is in clause 5.2. The definition in clause 8.2.5.1 would simply have no work to do if it did not inform the meaning of the definition in clause 5.2.
In light of that conclusion, it follows, in my view, that as the former Rules defined Electrical Services by reference to ‘assembling, etc fire alarm systems by Workers for Employers who contract to provide ‘such services for which a rate of pay is prescribed under the ECI Award’’ they, in effect, picked up the definition in clause 8.2.5.1 of that award.
Even if this were not so, it is not immediately apparent that the change to the wording of the definition of Electrical Services would enlarge the class of persons capable of being paid benefits out of the fund. This is because, even if under the former Rules clause 8.2.5.1 of the ECI Award is not read into the definition of Electrical Services, work of that kind would form part of the definition of Electrical Trades Work (and thus part of the definition of Construction Work). Thus, even if the amendment to the definition of fire alarm system has expanded the definition of Construction Industry, it has not altered the class of persons capable of being paid benefits out of the fund.
In the circumstances, no prior approval of the Governor in Council was required for the amendment of the definition of fire alarm systems under s 7(1) of the Act.
No requirement for a referendum
Clause 13.4 of the trust deed creates a requirement for a referendum of Workers, Employers and Working Sub-Contractors in certain circumstances.
Detector Inspector argues that the routine or minor maintenance, ECI Award and fire alarm systems amendments are invalid because no referendum was held as required by clause 13.4.
Clause 13.4 relevantly provides:
(a) As from the Effective Date, the provisions of this deed may, subject to the Act (including without limitation section 7 of the Act) and clause 13.1 (Restriction of Benefit) and clause 13.2 (Restriction of amendment of deed), be added to, revoked, amended, modified, varied, substituted or replaced in whole or in part either directly or indirectly by a deed poll authorised by a Special Resolution of the Board provided that any deed poll purporting to, add to, revoke, amend, modify, vary, substitute or replace:
(i) this clause 13.4 (Amendment as from Effective Date); or
(ii) the meanings given to any or all terms defined in clause 1 (Definitions) of this deed (including by reference to any other provisions of this deed (including the Rules)) to the extent that they are used in this clause 13.4 (Amendment as from Effective Date),
will be void and of no effect unless prior to its execution it was approved pursuant to a referendum of Construction Industry (as defined in the Rules) Workers (as defined in the Rules), Employers (as defined in the Rules) and Working Sub-Contractors (as defined in the Rules) other than Non-Voting Persons (as defined in the Rules).[30]
[30]CB 1270.
Detector Inspector says that each of the routine or minor maintenance, ECI Award and fire alarm systems amendments was an amendment to the definition of ‘Construction Industry’ and that, as a result, clause 13.4 of the trust deed required that a referendum be held in accordance with that clause. No referendum was held. Detector Inspector thus contends that each of those amendment is ‘void and of no effect’ by operation of clause 13.4.
That contention should be rejected. Clause 13.4 does not in its terms require a referendum:
(a) the routine or minor maintenance amendment did not amend clause 13.4 of the trust deed; and
(b) ‘Construction Industry’ is not a term defined in clause 1 of the trust deed.
Detector Inspector says that by amending the definition of Construction Industry the routine or minor maintenance amendment has, in effect, amended clause 13.4 of the trust deed, because the term ‘Construction Industry’ is used in the clause.
I do not accept that clause 13.4 is to be construed in that way. It refers to adding to, revoking, amending, modifying etc clause 13.4 and separately refers to adding to, revoking, amending, modifying etc the meanings given to terms defined in clause 1 of the trust deed to the extent they are used in clause 13.4. It does not refer to adding to, revoking, amending, modifying etc meanings given to terms defined in other parts of the trust deed apart from to the extent they are used in clause 13.4.
In the circumstances, a referendum under clause 13.4 was not required in order to effect the routine or minor maintenance amendment.
Detector Inspector makes a similar argument regarding the requirement for a referendum under rule 4(a) of the former Rules, which provided:
As from the Effective Date, the provisions of these Rules may, subject to the Act (including without limitation section 7 of the Act), be added to, revoked, amended, modified, varied, substituted or replaced in whole or in part either directly or indirectly by a deed poll authorised by a Special Resolution of the Board provided that any deed poll purporting to add to, revoke, amend, modify, vary, substitute or replace:
(i) this rule 4;
(ii) the meanings given to ‘Prescribed’ and ‘Special Resolution’ as respectively defined in rule 1.1; or
(iii) the meaning given to any or all terms defined in rule 1.1 (including by reference to any other Rules) to the extent that they are used in any or all of the provisions of these Rules specified in paragraph (i) or (ii) above;
will be void and of no effect unless prior to its execution it was approved pursuant to a referendum of Construction Industry Workers, Employers and Working Sub-Contractors other than Non-Voting Persons[31]
(emphasis in original)
[31]CB 1358.
The routine or minor maintenance amendment did not amend rule 4 nor did it amend the meanings of ‘Prescribed’ and ‘Special Resolution’ as each are respectively defined in rule 1.1. The routine or minor maintenance amendment did amend the meaning of the term ‘Construction Industry’ and so to the extent that term is used in rule 4, the amendment is void and of no effect. In other words, for the purposes of rule 4, Construction Industry is defined as including the routine or minor maintenance carve out. However, rule 4(a)(iii) does not render the amendment of the definition of Construction Industry void and of no effect for all purposes.
I have held that, on the proper construction of the former and current Rules, neither the ECI Award amendment nor the fire alarm systems amendment did expand the definition of Construction Industry. However, as the foregoing analysis shows, even if they had, no referendum would have been required under clause 13.4 of the trust deed and if a referendum had been required under rule 4 of the former Rules, any amendment to the definition of Construction Industry would only have been void and of no effect for the purposes of rule 4.
The prescribed award amendment
In the former Rules and current Rules, Construction Work relevantly comprises Building Trades Work, Electrical Trades Work, Metal Trades Work and Other Trades Work.
The former Rules defined the terms ‘Building Trades Work’, ‘Electrical Trades Work’ and ‘Metal Trades Work’ as follows:
‘Building Trades Work’ means work:
(a) performed in the Construction Industry in Victoria, being:
(i) work of a kind for which a rate of pay is fixed by a Prescribed Building Award; or
…
‘Electrical Trades Work’ means work:
(a) performed in the Construction Industry in Victoria, being:
(i) work of a kind for which a rate of pay is fixed by a Prescribed Electrical Contracting Award; or
…
‘Metal Trades Work’ means work:
(a) performed in the Construction Industry in Victoria, being:
(i) work of a kind for which a rate of pay is fixed by a Prescribed Metal Award or a Prescribed Engine Driving Award;[32]
[32]CB 1343-1349.
For ease of reference, I will refer to Prescribed Building Awards, Prescribed Electrical Contracting Awards, Prescribed Metal Awards and Prescribed Engine Driving Awards collectively as ‘prescribed awards’.
In 2014 the former Rules were amended to delete references to prescribed awards in the definition of Building Trades Work, Electrical Trades Work and Metal Trades Work and replace those references with references to classifications in various appendices. The evident intent of that amendment was to replicate the substance of classifications for which rates of pay had been fixed under prescribed awards in the new appendices so that substantively the definition of Building Trades Work, Electrical Trades Work and Metal Trades Work did not change. The question is whether the current Rules achieve that result.
Detector Inspector in the first instance asserts that the prescribed award amendment modified a part of the trust deed ‘by which … an award is prescribed for the purposes of the fund’. It says this engaged the provisions of s 7(2)(a)(ii) of the Act. For the reasons I have set out above, I do not regard s 7(2) as requiring approval of the Governor in Council unless the relevant exercise of power by the trustee had the effect of enlarging the class of persons capable of being paid benefits out of the fund.
Detector Inspector also alleges that, indirectly, the removal of the references to prescribed awards has had the effect of expanding the scope of Construction Work. This argument rests on the proposition that the former Rules required an Employer to be respondent to a prescribed award, whilst the current Rules apply to Employers who would not have been respondent to the prescribed awards. I do not accept that respondency to a prescribed award was required under the former Rules. In my view, such a construction gives the words ‘work of a kind’ in the phrase ‘work of a kind for which a rate of pay is fixed under a [prescribed] award’ no work to do. Baytech demonstrates that it is sufficient that the work performed by the employees for the employer is of the same ‘genus’ as work for which a rate of pay is fixed under a prescribed award. The definitions of the former Rules did not require an Employer to be a respondent to a prescribed award.
Detector Inspector also alleges that the removal of references to the ECI Award has expanded the definition of Electrical Trades Work and therefore enlarged the expression ‘Construction Work’. In this regard, it refers to three specific matters:
(a) An electronic trades person under the award had to:
(i) be working at a level beyond ‘electrician special class’;
(ii) have at least three years of relevant on-the-job experience and completed a specified qualification; and
(iii) be capable of working under minimum supervision and technical guidance.
Detector Inspector says each of these requirements were omitted from the definition of electronic tradesperson in Appendix A of the current Rules.
(b) An ‘electronic equipment tester/installer’ in the ECI Award was described as someone who worked ‘under the supervision of a trades person or electronics service person’. Under the current Rules, the requirement of supervision has been removed; and
(c) An ‘alarm/security tester’ in the ECI Award was separated into three grades with each successive grade being described as being able to carry out the work of the previous grade. Under the current Rules, the references to those grades have been removed.
None of these amendments have expanded the definition of Electrical Trades Work. As has previously been noted, that definition in the former Rules referred to ‘work of a kind’ for which a rate of pay was fixed by the ECI Award and Baytech stands for the proposition that that requirement is satisfied provided the work under consideration is of the same ‘genus’ as the work in the ECI Award. It is plain that the modifications referred to above do not create a situation where the current Rules refer to work which is of a genus that is different to the genus of work which would have been covered by the ECI Award.
In all the circumstances, the removal of references to prescribed awards in the 2014 amendments did not enlarge the class of persons capable of being paid benefits out of the fund and so did not require prior approval of the Governor in Council.
The 2008 amendment
Between the Act coming into effect and the 2008 amendment on 2 December 2008, the former Rules contained the following definition of Award:
‘Award’ means:
(a) an employee agreement under the Employee Relations Act 1992; or
(b)an award or agreement in force under any law of the Commonwealth relating to industrial conciliation or arbitration.[33]
[33]CB 1111.
In the 2008 amendment this definition was changed so that paragraph (b) of the definition read:
(b) An award whether presently in force or not, made pursuant to any law of the Commonwealth, whether presently in force or not, relating to the relationship between an employer and employee.[34]
[34]CB 1343.
Detector Inspector asserts that the trustee required prior approval of the Governor in Council pursuant to s 7(2)(a)(ii) of the Act. It makes that submission on the basis that s 7(2) is a standalone deeming provision. I have held that the sub-section does not have that effect.
Detector Inspector did not allege that the 2008 amendment had the effect of enlarging the class of persons capable of being paid benefits out of the fund. Nonetheless for completeness it is appropriate that I set out my reasons for concluding that the 2008 amendment did not have that effect.
There is no suggestion that the status of any award changed from being in force to not in force on 2 December 2008. A person who was employed performing in Construction Work in the Construction Industry on 2 or 3 December 2008 would, relevantly, have been performing Construction Work in the Construction Industry, had they performed the same work on the 1 December 2008. The 2008 amendment changed nothing in terms of the class of persons capable of being paid benefits out of the fund.
Further, and in any event, it is not apparent that the generic definition of Award applied to those awards which were specifically listed (‘listed awards’) in the definitions of prescribed awards.
Immediately prior to and after the 2 December 2008, the relevant definitions were in the following terms:
‘Prescribed Building Award’ means an Award or any part or any parts thereof which is or are Prescribed as a building award for the purposes of the Fund and includes each of the following Awards:[35]
[35]CB 1289.
Award or Agreement
Extent of Prescription
Australian Workers’ Union Construction and Maintenance Award 1989
The whole
Building Construction Employees and Builders Labourers (Consolidated) Award 1982
The whole
Carpenters and Joiners Award 1967
Division D
Construction Industry Sector – Minimum Wage Order – Victoria 1997
Clause 4.5.1 Landscaping Services
Furnishing Industry National Award 1999
Clauses 21.1.10 and 21.1.11: insofar as they relate to the carrying out of Parquetry Floor Laying Services and Floor Covering Services on site
National Building and Construction Industry Award 1990
The whole except for work described in clause 38 (32)
Scientific and Technical Workers Award 1987
Part I
Sprinkler Pipe Fitters Award 1975
The whole
The Plumbing Trades (Southern States) Construction Agreement
The whole
The Prefabricated Building (Off-Site) Award 1978
The whole
‘Prescribed Electrical Contracting Award’ means an Award or any part or any parts thereof which is or are Prescribed as an electrical contracting award for the purposes of the Fund and includes each of the following Awards:[36]
[36]CB 1289.
Award or Agreement
Extent of Prescription
Electrical Contracting Industry Award 1992
Parts A and B
‘Prescribed Engine Driving Award’ means an Award or any part or parts thereof which is or are Prescribed as an engine driving award for the purposes of the Fund and includes each of the following Awards:[37]
[37]CB 1290.
Award or Agreement
Extent of Prescription
Engine Drivers and Fireman’s (General) Award 1968
Insofar as it relates to persons whose wage rates are prescribed by Part II of clause 8
Metal Industry (Engine Drivers’ and Firemen’s) Award 1984
Insofar as it relates to on site Construction Work contained in Part II and Appendix A
Mobile Crane Hiring Award 1988
The whole
‘Prescribed Metal Award’ means an Award or any part or any parts thereof which is or are Prescribed as a metal award for the purposes of the Fund and includes each of the following Awards:[38]
[38]CB 1290.
Award or Agreement
Extent of Prescription
Metal, Engineering and Associated Industries Award 1998
Clause 1.4.7(b) of Part I and Part II insofar as that clause and part apply to non destructive testing for classifications C5 to C14
Metal Industry Award 1984
Part I and Appendix A: on site construction
National Metal and Engineering On-site Construction Industry Award 1989
The whole
Metal Trades Award 1952
Part III
Transmission Line Construction in Victoria Agreement 1981
The whole
LeavePlus points out that at least four of the listed awards in the definitions of prescribed awards were not in force at the time when the former Rules were made. Specifically, these were:
(a) the Carpenters and Joiners Award 1968 and the Pre-fabricated Building (Off Site) Award 1978, each of which were included in the definition of Prescribed Building Award;
(b) the Mobile Crane Hiring Award 1988 which is defined as a Prescribed Engine Driving Award; and
(c) the Transmission Line Construction in Victoria Agreement 1981 which is defined as a Prescribed Metal Award.
Detector Inspector says that prior to the 2008 amendment, the definition of Award had to be read into the definitions of prescribed awards and that no contrary intention is demonstrated by the inclusion of awards which were already not in force in the listed awards. I disagree. It is apparent that there was no intention that listed awards needed to be in force in order to be a prescribed award under the former Rules. That is sufficient to demonstrate a contrary intention, at least insofar as the definitions of prescribed awards include the listed awards.
The awards which were listed as at 2 December 2008 were the same awards which were listed as at November 2014. No new awards (whether in force or not) were added in that period. The 2008 amendment did not enlarge the class of persons capable of being paid benefits out of the fund.
Consequence of invalidity of current Rules
If I am wrong in my construction of s 7 of the Act and s 7(2) is a deeming provision nothing changes in respect of Detector Inspector’s employees. Under the former Rules, prior to the 2008 amendment, and on the construction of those rules which I prefer:
(a) Detector Inspector carries out maintenance or repairs to fixtures in buildings and carries out Electrical Services as defined. The latter because Detector Inspector contracts to provide services for which a rate of pay was fixed under the ECI Award, that is within the scope of that award, including fire alarm services as that term was defined prior to 2014;
(b) Detector Inspector’s employees are not subject to the routine or minor maintenance carveout because Detector Inspector is substantially in the Construction Industry;
(c) the gasfitters are employed on work of a kind for which a rate of pay was fixed by a prescribed award being the Plumbing Trades (Southern States) Construction Agreement 1979; and
(d) the electricians and fire alarm technicians are employed on work of a kind for which a rate of pay is fixed under the ECI Contracting Award.
As a result, if I am wrong and:
(a) s 7(2) is a deeming provision;
(b) the 2014 and 2008 amendments therefore required prior approval of the Governor in Council; and
(c) because they did not receive such prior approval those amendments are invalid
as I would construe the former Rules, Detector Inspector’s employees would still be covered by the portable long service leave scheme.
In those circumstances (and assuming my conclusions regarding the 1998 amendment are correct), there would be no occasion to quash the determination and there would be significant questions as to whether declarations of invalidity of the 2008 and 2014 amendments should be made as a matter of discretion.
The 1998 amendment
On 13 October 1998 the former Rules were amended to insert the definition of Electrical Services which has been referred to above. That amendment did enlarge the class of persons capable of being paid benefits out of the fund and had been the subject of prior approval by the Governor in Council on 29 September 1998. There is, therefore, no suggestion of any contravention of the provisions of s 7 of the Act in relation to the 1998 amendment.
Detector Inspector says though that the 1998 amendment cannot prejudicially affect it because the 1998 amendment is a statutory rule and there has been no compliance with s 17 of the SLA.
Section 3 of the SLA relevantly defines statutory rule as follows:
Statutory Rule means–
(a) a regulation–
(i) made by the Governor in Council; or
(ii)made with the consent or approval of the Governor in Council; or
(iii)which the Governor in Council has power to disallow–
other than a regulation made by a local authority or by a person or body with jurisdiction limited to a district or locality …
Section 16(1) of the SLA provides that a statutory rule comes into operation on the day in which it is made or such later day as is expressed in the statutory rule as the day on which it comes into operation.
Section 16(2) of the SLA states:
Despite the coming into operation of a statutory rule or of a provision of a statutory rule, a person cannot–
…
(b)be prejudicially affected or made subject to any liability by the statutory rule or provision
if it is proved that at the relevant time the statutory rule had not been printed and published by the Government Printer or notice under section 17(3) had not been published in the Government Gazette.
Section 16(3) of the SLA provides that a person cannot rely on sub-section (2) if it is proved that at the relevant time reasonable steps had been taken for the purpose of bringing the purport of the statutory rule or provision to the notice of the public, persons likely to be affected or the person concerned.
Section 17(1) of the SLA says that after it is made, a statutory rule must be numbered, printed and published by the Government Printer. Section 17(3) of the SLA provides that as soon as practicable after a statutory rule has been made, a notice must be published in the Government Gazette stating where copies of the statutory rule can be obtained (and from what date they were first obtainable).
Detector Inspector says:
(a)The 1998 amendment was a statutory rule within the meaning of s 3 of the SLA;
(b)The evidence establishes that the 1998 amendment was not printed and published by the Government Printer and no notice was published in the Government Gazette in accordance with s 17(3) of the SLA; and
(c)As a result, Detector Inspector could not incur any liability for a charge under the scheme prior to it having notice of the 1998 amendment.
I accept that the evidence establishes that the 1998 amendment was not printed and published by the Government Printer and that no notice was published in the Government Gazette in accordance with s 17(3) of the SLA regarding where it could be obtained.
I should note that it is plain Detector Inspector had access to a copy of the Rules by at least 20 December 2021[39] and that Leave Plus had notified it of Leave Plus’ reliance on the definition of Electrical Services by 21 December 2021. [40] If s 16 of the SLA did apply, it could only apply to any prejudicial effect prior to 20 December 2021.
[39]CB 188.
[40]CB 190.
LeavePlus says that the short answer to Detector Inspector’s contention is that it is not the 1998 amendment which prejudicially affects Detector Inspector. Any prejudicial impact on Detector Inspector by imposition of the charge occurs because of the provisions of the current Rules which were not subject to approval of the Governor in Council, and therefore, do not meet the definition of statutory rule in the SLA. At first blush, it seems there is a degree to which LeavePlus is pulling itself up by its bootstraps in this respect. The reason it says it did not need s 7 approval for the 2014 amendments is because there was no enlargement of the class of persons capable of being paid benefits out of the fund – that relies in part on the validity of the 1998 amendment. However, s 16 of the SLA does not impact on the validity of the 1998 amendment and the prejudicial effect does not arise by virtue of that amendment.
The 2014 amendments were not approved by the Governor in Council. Those amendments involve a complete substitution of the current Rules for the former Rules. In those circumstances, I accept that strictly read, the prejudicial effect of the imposition of the charge did not occur pursuant to a statutory rule within the meaning of the SLA.
Detector Inspector says that the provisions of the SLA are an important safeguard, which in this situation ensure notification of affected persons of the enlargement of liability for a tax. The facts of this case establish the limitations of that proposition as a practical matter. The first time LeavePlus sought to impose liability on Detector Inspector was on 22 November 2021 in respect of an employee whose service period was 14 May 2021 until 30 September 2021.[41] It is not at all apparent that a notice published in the Government Gazette in 1998 would have had any practical effect on bringing the provisions of the 1998 amendment to Detector Inspector’s notice.
[41]CB 173-174.
LeavePlus provided evidence that established that a full copy of the Rules has been accessible on its website and capable of being downloaded since their first iteration in 1997 and that it updated those rules as they were amended from time to time.[42] I regard those steps as satisfying the requirement in s 16(3) for LeavePlus to take reasonable steps to bring the content of the 1998 amendment to persons likely to be affected by the amendment. Publication on the website was at least as likely to bring notice of the 1998 amendment to Detector Inspector’s attention in 2021 as publication of a notice of where the 1998 amendment could be obtained in the Government Gazette in 1998.
[42]CB 1956-1957.
For those reasons, it is my view that s 16 of the SLA has no effect with respect to the imposition of the charge on Detector Inspector.
The above matters are sufficient to deal with Detector Inspector’s contentions regarding s 16 of the SLA. However, in any event, I incline to the view that the provisions of the SLA with respect to statutory rules were not intended to apply to amendments to the trust deed which require prior approval of the Governor in Council.
In light of the apparent intention to ‘devolve the government of its direct involvement in a non-key function’, the SLA creates a series of provisions applicable to statutory rules which on their face would seem unlikely to have been intended to apply to amendments to the trust deed. For example:
(a) Section 5 provides for automatic expiry of statutory rules;
(b) Section 7 requires the Minister to prepare a regulatory impact statement;
(c) Section 13 requires the proposed statutory rule to be submitted to the Chief Parliamentary Counsel for the issue of a certificate; and
(d) Section 15 requires that the statutory rule must be laid before each House of Parliament.
In the circumstances, I am inclined to think that it was not Parliament’s intention that rules submitted for Governor in Council approval under s 7 of the Act should be treated as statutory rules under the SLA, or perhaps put another way, that the Rules the subject of approval by the Governor in Council under s 7 of the Act, did not constitute a ‘regulation’ within the meaning of s 3 of the SLA. Detector Inspector says that such an interpretation would create an invalid delegation of legislative power. In light of my findings above, it is unnecessary to express a concluded view on this issue.
Conclusion
For completeness, I note that having applied the usual principles of construction to the Act, the trust deed and the Rules, I do not regard there as being any ambiguity which needs to be resolved in favour of Detector Inspector as taxpayer.
For the above reasons, Detector Inspector’s claim for relief should be dismissed.
It would seem likely that costs should follow the event. If Detector Inspector wishes to make any application for a different costs order it should do so within seven days. If it does not, I will order that Detector Inspector pay LeavePlus’ costs of the proceeding.
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