Fair Work Ombudsman v Kingsford Carwash Pty Ltd - [2012] FMCA 464

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v KINGSFORD CARWASH PTY LTD & ANOR

[2012] FMCA 464

INDUSTRIAL LAW – Award coverage – failure to pay basic wage and casual loadings – casual employees at carwash café – not “engaged in a process connected with or incidental to the making, servicing, preparing or repairing of vehicles running on roads” within NSW transitional award – employed in an “establishment… principally connected or concerned with … maintaining … motor vehicles” within vehicle industry modern award – proceedings adjourned for further hearing on penalty and compensation.

Evidence Act 1995 (Cth), s.79
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch.16 Item 5
Fair Work Act 2009 (Cth), ss.293, 539(2), 550
Federal Court Rules 2011 (Cth), r.5.04(3) Item 19
Workplace Relations Act 1996 (Cth), ss.182, 185

Bui v Minister for Immigration & Multicultural Affairs (1999) 85 FCR 134
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Fair Work Ombudsman v McGrath & Anor [2010] FMCA 315
Giorgianni v The Queen (1985) 156 CLR 473
Kucks v CSR Ltd (1966) 66 IR 182
New South Wales Department of Commerce (Office of Industrial Relations) v Sand Bluff Pty Ltd t/as Crystal Car Wash, Chatswood (unreported, Chief Industrial Magistrates Court of NSW, Hart CIM, 23 August 2007)
Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289
Perth City v DL (1994) 88 LGERA 45
Pro-Star Service Station Pty Ltd v Petroleum Products Retail Outlets Board (1998) 99 LGERA 163
United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board (2006) 152 FCR 18

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

KINGSFORD CARWASH PTY LTD
(ACN 134 064 387)

Second Respondent:

ELLIOT BAN

File Number:

SYG 1350 of 2011

Judgment of:

Smith FM

Hearing dates:

28 & 29 March 2012

Delivered at:

Sydney

Delivered on:

22 June 2012

REPRESENTATION

Counsel for the Applicant:

Mr Y Shariff

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the Respondents:

Mr M Sahade

Solicitors for the Respondents:

Trinity Legal

ORDERS

The proceeding is adjourned for further hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1350 of 2011

FAIR WORK OMBUDSMAN

Applicant

And

KINGSFORD CARWASH PTY LTD (ACN 134 064 387)

First Respondent

ELLIOT BAN

Second Respondent

REASONS FOR JUDGMENT

The Fair Work Ombudsman seeks the imposition of pecuniary penalties on Kingsford Carwash Pty Ltd (‘Kingsford Carwash’) and its manager, Mr Ban, for the underpayment of 62 casual employees between 6 December 2009 and 17 July 2010. Over this period, most of them were paid a flat rate of $10.84 per hour for the actual time they spent washing cars with a bucket, rag and hose. The respondents do not contest that the employees were entitled to be paid much higher hourly rates of basic wage and casual loading, and that the employer is liable to penalties for not doing so, but raise issues of construction as to the coverage of the two industrial instruments principally relied upon by the Ombudsman. I am requested by both parties to resolve these issues, before proceeding to a further hearing into the appropriate penalties to impose, and the amount of compensation to award the employees.
Before addressing the coverage issues, I note that they appear to me to have little practical effect for the purposes of the present proceedings, and that it is regrettable that they were not settled by agreement between the parties. Particularly, since the wage rates contended by the Ombudsman were lower over the relevant periods than those now accepted by the respondents. On the Ombudsman’s contentions, the employees were entitled to a combined hourly rate of $16.96 from 6 December 2009 until 30 June 2010 and thereafter $17.55. On the respondents’ contentions, they were entitled to a combined hourly rate of $17.17 until 30 June 2010, and thereafter $18.15. As will appear, I have arrived at conclusions somewhere in the middle of the controversy.
Counsel for the respondents suggested to me that the respondents had put these matters in issue, because it was in the interests of his clients’ business beyond the present case to obtain a judicial ruling that its employees were not entitled to rates of pay fixed by past and present awards governing sections of the motor vehicle industry, but were to be paid according to the standard minimum wages as determined under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) and the Fair Work Act 2009 (Cth). I was left ignorant of what real benefits accrue to Kingsford by avoiding the sometimes lower unskilled wage rates under the industry awards. The complexity of the issues has, at least, resulted in substantial delays in the resolution of the present proceedings, which is regrettable.
Since both counsel insisted that the coverage issues were unavoidable, and that they should be resolved before proceeding with further stages in the hearing, I shall address them below. They were presented to me without controversy as to the underlying statutory structure of the Fair Work Act and its transitional legislation, which would give effect to the wage rates in the two industry awards if they provided coverage, or to the minimum wages standards if they did not provide coverage. I therefore do not propose to analyse and explain the complex legislation which has this agreed effect. It was outlined in the Ombudsman’s Statement of Claim and in the thorough written submissions of his counsel, which I do not need to repeat.
The focusing of this stage of the proceedings on the coverage issues was agreed upon by counsel shortly before the hearing commenced on 28 March 2012. Their agreed document states:
ISSUES/QUESTIONS FOR DETERMINATION AND ADMITTED FACTS
In light of the Respondents’ admitted facts set out below, the questions to be determined in the Liability Hearing are:
1.Period from 6 December 2009 to 31 December 2009
(a)Did the Coachmakers & c.; Road and Perambulator Manufacturers (State) Award (Coachmakers Pay Scale) cover and apply to the First Respondent and its employees in the period 6 December 2009 to 31 December 2009?
(b)If the Coachmakers Pay Scale did not cover and apply to the First Respondent’s employees in the period from 6 December 2009 to 31 December 2009 did the Transitional Standard Federal Minimum Wage and the default casual loading apply to those employees during this period?
2.Period from 1 January 2010 onwards
(a)Did the Vehicle, Manufacturing, Repair, Services and Retail Modern Award 2010 (Modern Award) cover and apply to the First Respondent and its employees from 1 January 2010 onwards?
(b)If the Modern Award did not apply from 1 January 2010, did the applicable National Minimum Wage Order (including the casual loading set by that Order) apply to the First Respondent and its employees from 1 January 2010 onwards?
3.Record Keeping Contraventions
… [withdrawn]
4.Accessorial Liability
Is the Second Respondent accessorially liable for any or all of the First Respondent’s contraventions?
5.ADMITTED FACTS
5.1The First Respondent employed each of the employees specified in Schedule A to the Amended Statement of Claim (the Relevant Employees).
Period from 6 December 2009 to 31 December 2009
5.2If the Coachmakers Pay Scale applied and covered the First Respondent and its employees in the period from 6 December 2009 to 31 December 2009:
(a)the First Respondent admits that it breached that Pay Scale (both in respect of the rate of pay and casual loading that should have been paid), contravened item 5 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and is liable to suffer a penalty under subsection 539(2) of the FW Act;
(b)the First Respondent admits it has underpaid the Relevant Employees in the sums specified in Schedules B [totalling $11,323.26] and D [totalling $8,246.13] to the Amended Statement of Claim.
5.3If the Coachmakers Pay Scale did not apply in the period from 6 December 2009 to 31 December 2009 and the Transitional FMW applied in this period:
(a)the First Respondent admits that it breached the Transitional Standard Federal Minimum Wage and default casual loading provisions, contravened item 5 of Schedule 16 of the Transitional Act and is liable to suffer a penalty under subsection 539(2) of the FW Act;
(b)the First Respondent admits it has underpaid the Relevant Employees in the sums specified in Schedules G [totalling $9,812.58] and I [totalling $10,678.84] to the Amended Statement of Claim.
Period from I January 2010 onwards
5.4If the Modern Award applied and covered the First Respondent and its employees in the period from 1 January 2010 onwards:
(a)the First Respondent admits that it breached that Modern Award (both in respect of the rate of pay and casual loading that should have been paid), contravened s 45 of the FW Act and is liable to suffer a penalty under subsection 539(2) of the FW Act;
(b)the First Respondent admits it has underpaid the Relevant Employees in the sums specified in Schedules C (totalling $41,374.20) and E (totalling $34,699.91) to the Amended Statement of Claim.
5.5If the Modern Award did not apply in the period from 1 January 2010 onwards and the applicable National Minimum Wage Order applied in this period:
(a)the First Respondent admits that it breached the applicable National Minimum Wage Order (including the casual loading set by that Order), contravened s 293 of the FW Act and is liable to suffer a penalty under subsection 539(2) of the FW Act;
(b)the First Respondent admits it has underpaid the Relevant Employees in the sums specified in Schedules H (totalling $64,499.61) and J (totalling $44,876.72) to the Amended Statement of Claim.
Obligations to Pay
5.6The First Respondent admits that it has a liability to pay to the Relevant Employees the amounts owing to them in Schedules B to H of the Amended Statement of Claim (depending upon which instrument is found to have covered and applied to the First Respondent and the Relevant Employees).
5.7The question as to whether the Relevant Employees have been repaid the amounts underpaid is not agreed and is a matter for the penalty hearing.
In effect, the parties’ agreement identified as the only contested issues for the hearing on ‘liability’:
i)Whether the casual work of the employees was covered by the Coachmakers &c. Award pay scale between 6 and 31 December 2009.
ii)Whether the casual work of the employees was covered by the terms of the Modern Award from 1 January 2010 onwards.
iii)Whether Mr Ban’s involvement in the underpayment of the employees satisfies the tests of accessorial liability under s.550 of the Fair Work Act.
The last issue can be addressed shortly, before I turn to the issues of construction.
In his Defence, Mr Ban admitted that he was employed by Kingsford Carwash as its general manager, was responsible for ‘the overall direction, management and supervision’ of the company, and determined its employees’ terms and conditions of employment. He also admitted that he was aware of the engagement of the identified employees, of their duties, and of the amounts paid to them. Under cross-examination, Mr Ban said that he did not take steps to determine whether an award applied to a car washer or detailer, and that he had determined the rate of $10.84 “from a previous amount that I had in my head which I believe I had investigated previously” (transcript 23.3.12 p.86). He said he was unaware that casual employees were entitled to a casual loading. He said that “I obviously didn’t take enough steps” to determine the appropriateness of $10.84 as the minimum wage to be paid to car washers from 2009.
At the close of the hearing, Mr Ban’s counsel made no submissions that Mr Ban’s admissions and evidence were not sufficient to establish that he was a person ‘knowingly concerned in or party to the contraventions’ constituted by the failures of Kingsford Carwash to pay these employees their entitlements by way of basic hourly rates of pay and casual loadings, under either the relevant awards or the minimum wage standards. In my opinion, he clearly was such a person, even without making any finding that Mr Ban consciously disregarded rates of pay and loadings which he knew were prescribed by law. On established authority, it is not necessary for me to find that he was conscious that the law was being broken by the payment of the contravening hourly wage rate for which he admitted responsibility, so long as he was conscious of the circumstances which constituted the contraventions (see Giorgianni v The Queen (1985) 156 CLR 473 at 479, 487, 495, 506, and Fair Work Ombudsman v McGrath & Anor [2010] FMCA 315 at [19]-[30]). I shall need to make findings as to his awareness of the legal obligations on the employer, but only when I reach the next stage of the hearing and quantify the appropriate penalty to be imposed on him.
I am therefore satisfied that the Ombudsman has established Mr Ban’s accessorial liability for the imposition of penalties for the contraventions of Kingsford Carwash which are conceded by it.
The remaining issues for my present judgment concern the coverage of the two vehicle industry awards, and affect only the precise legal identification of the relevant sources of the employees’ entitlements, and the precise calculation of the employees’ underpayments. These classification issues require an understanding of the nature of Kingsford Carwash’s business and of the work performed by the 62 people it employed to wash cars.

The work performed by the employees

At the relevant times, Kingsford Carwash operated its business at premises at 417 Anzac Parade, Kingsford, in Sydney, pursuant to the terms of five-year leases commencing on 16 December 2005 and 1 January 2010, in which Anthony Sahade was the lessor. Under the lease conditions, the company was obliged to “only use the Premises strictly for the operation of the Crystal Car Wash Café in accordance with and limited by the Crystal Car Wash Café System” (see cll.18(a) and 31 of the second lease). This ‘System’ was identified as being found in the lessor’s ‘operations manual’, which never existed, or as defined in the lease as ‘saying initially’:
… “the business of vacuuming, washing by hand or machine, drying by hand, polishing by hand, and buffing by hand the vehicles of customers of the Lessee, and the serving of coffee, tea, cakes and light refreshments to customers in the café and or outdoor seating arrangements, in accordance with, or substantial accordance with the business operations of the Lessor and or any Related Company on the Premises in the six months prior to the Lessee entering into this Lease, including the uniforms of staff displaying any logo or trade mark of the Lessor or any Related Company from time to time, currently being “Crystal Car Wash Café” on the caps and emblazoned on the back of uniforms of workers doing manual labor, and managers and staff that serve customers directly, being dressed neatly in suit pants, business shirt and tie and further includes the computer system used to process customer vehicles at the entrance driveway, inside the café and at the exit driveway which logs and records all customers vehicles and whether and when the customer has paid for the service, and the use of electronic pagers given to customers to advise when their vehicle is ready, but shall not include in any way business from Advertising Billboards and Structures erected on or about or near the Premises or that may be erected on the Premises from time to time”.
Mr Ban gave evidence that the premises provided spaces and basic equipment for manual car washing and detailing of cars, which were brought to the premises by customers, and a café for the waiting customers. Mr Ban spent most of his time at the premises dispensing free coffee at the café, and managing the supervisors of a waiting pool of casual car washers, which included all of the 62 employees who are presently relevant. They were organised or attracted to attend the premises and wait, unpaid, until their active services were required upon the arrival of customers.
The employees’ car washing activities were described by several witnesses, and can be readily understood by anyone who has ever cleaned a car by hand or has taken a car to such an establishment. The evidence about this was largely uncontroversial, and was provided by the observations and photographs of Fair Work inspectors and evidence from some employees. The Crystal Car Wash webpage, encompassing locations of other businesses as well as that of Kingsford Carwash, advertised different car wash packages. These were also displayed and explained on four large signs on the premises, which advertised:
Crystal Deluxe^TM $55*
o   Hand wash & chamois
o   Vacuum & window clean
o   Dashboard & tyre treatment
o   Wheel arches water blasted
o   Bonnet, boot & door frames cleaned
o   Carpet mats Chemdried
o   Rubber mats treated
o   Rubbers and plastics rejuvenated & preserved
Crystal Clean^TM$37* Crystal Clean^TMwithout vacuum $33* Exterior wash & chamois $28* 4WD $5 extra
Crystal Shine^TM $125*
Polish & Detail
o   Hand polish
o   Clay buff *extra
o   Interior clean
o   Plastics & rubbers rejuvenated
Crystal Care^TM $225*
Interior Detail & Protection
o   Steam clean
o   Leather conditioning
o   Removes stains & odours
o   Protects & restores
Crystal Guard^TM $385*
Ultimate Clean & Paint Protection
o   The finest paint protection available
o   Anti-rust and stain resistant
o   Prevents scratching & fading
o   UV guard
Mr Ban explained these packages and the business’ limited facilities in his affidavit:
Business Operations
5.The Kingsford Car Wash is a car wash and café. Generally, a customer arrives and is greeted by a driveway manager.
6.The customer can purchase a various wash being either “Crystal Clean”, “Crystal Deluxe”, “Crystal Shine”, “Crystal Care” and “Crystal Guard”.
7.Crystal Clean is a basic hand wash and vacuum.
8.Crystal Deluxe is a Crystal Clean with additional interior plastics cleaned.
9.Crystal Shine is a Crystal Deluxe with a hand polish. Hand polish means applying a wax to the car and then wiping it off.
10.Crystal Care is a Crystal Deluxe with interior leather and mats cleaned.
11.Crystal Guard is a Crystal Shine but with a more expensive hand polish applied for longer lasting shine.
12.The names were inherited from the franchisor when we took over the business at Kingsford.
13.When a purchase is made, the customer is given a ticket with a unique number on it. A customer leaves his or her car at the driveway and then goes into the cafe area. Their car is then driven through a vacuum bay, a washing bay and a drying bay. The customer collects his or her car at the drying bay when that car’s number is displayed on a screen.
14.Apart from the washes referred to above, the car wash does not undertake any further work to the car.
15.We do not carry out steam cleaning and do not have steam cleaning equipment.
16.The website referred to in the affidavit of Louise Batistic sworn 29 November 2011 is not maintained by Kingsford Car Wash and we do not carry out anything other than what has been described above.
Non Servicing of Motor Vehicles
17.[not read]
18.There are no facilities to check or fill-up air pressure for tyres. The water and oil levels of a car are not checked.
19.There are no pits or hoists/lifts.
20.The car is not touched with a screwdriver or other tools.
21.The only tools used are sponges, brushes for cleaning, cleaning cloths and vacuums.
22.If a customer were to ask, “Where can I get my car serviced?” I would reply, “There is a mechanic just around the corner.”
23.If a car was to stall or become immobile, we would call the NRMA on behalf of the customer. This has been done in the past.
24.If a car appeared to be immobile at the time it presented for a wash, then a wash would not be sold to the car.
25.We do not make any entry in the service book of motor cars.
26.We do not check the service book of any car.
27.We do not look at or note the odometer reading of a car.
28.The staff are not required to possess any skills or licences in respect of the cleaning work done on the motor vehicles. There are no members of staff who are trained to service motor vehicles in any way.
29.No inspection is made of a car to determine its roadworthiness.
30.The cleaning services of the car wash are offered purely for aesthetic reasons.
31.We open the bonnets of cars for the purposes of cleaning out leaves and debris from the engine surrounds. No work is done on the engine.
32.We do not carry out pink slip / e-slip / blue slip inspections.
33.The staff are not required to have any TAFE degree, university degree or any formal education or training. There are no apprenticeships offered.
34.We do not carry out any panel beating or spray painting of motor vehicles.
35.To the extent that anything is required to be done to a car other than the basic washing, drying, polishing, vacuuming and interior cleaning of a car, anything else would be referred to a different business.
36.We do not check to see whether a car is registered or insured.
37.We do not make a determination or inspection of whether a car is safe or not.
38.We do not fit baby seats. We do not check seat belts.
39.If a light was on the dashboard of a motor vehicle such as a service light or a brake light or any other warning light, it may be pointed out to the customer, but most probably it would be ignored.

None of this evidence was disputed, although there was some investigation in oral evidence of the nature of the advertised ‘steam clean’ service. The witnesses agreed that this involved the manual application of hot water from a bucket to interior surfaces, which was removed using a wet and dry vacuum cleaner. No activities or equipment of greater sophistication appear to have been used in any of the other cleaning services offered to customers.
In effect, the skills for which the present employees were engaged were the same as those which ordinary owners of cars might use themselves when cleaning the exterior and interior of their cars at home. Or, by closer analogy to the backgrounds of the workforce, when conscripting or engaging their physically fit student children to perform these chores. The obvious difference is that the skills of Kingsford Carwash employees were advertised, managed, and provided to customers in the course of a profit-making business using employed labour.

The coverage of the Coachmakers &c. Award

The name of the ‘Coachmakers, &c., Road and Perambulator Manufacturers (State) Award’ suggests an ancient lineage and potentially broad coverage. Its actual antecedents were not explained in the evidence before me, but its most recent making and coverage is described in cl.38:
38. AREA, INCIDENCE AND DURATION
This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Coachmakers, &c., Road and Perambulator Manufacturers (State) Award published 27 March 1998 (304 IG 1), and all variations thereof.
The award published on 27 March 1998 took effect from the first full pay period to commence on or after 29 July 1997.
The changes made to the award pursuant to the Award Review pursuant to section 19 (6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Award made by the Industrial Relations Commission of New South Wales on 18 December 1998 (9308 IG 307) take effect on and from 2 August 2001.
It shall apply to all persons of the classes herein mentioned in the State, excluding the County of Yancowinna, within the jurisdiction of the Coachmakers, &c., Road (State) and Perambulator Manufacturers Consolidated Industrial Committee.
This award remains in force until varied or rescinded for the period for which it was made already having expired.
Industries and Callings
Vehicle builders, vehicle painters, vehicle trimmers, wheelwrights and other employees engaged in a process connected with or incidental to the making, servicing, preparing or repairing of vehicles running on roads as distinguished from those running on rails, and to the makers of perambulators or their component parts and all labourers and assistants employed in connection with such callings in the State, excluding the County of Yancowinna. excepting the employees of -
State Rail Authority of New South Wales;
Urban Transit Authority of New South Wales;
The Commissioner for Motor Transport;
South Maitland Railways Pty Limited;
Blue Circle Southern Cement Limited;
The Kandos Cement Company Limited;
The Council of the City of Sydney;
Sydney Electricity;
Shire and municipal councils;
The Electricity Commission of New South Wales, trading as Pacific Power;
The Broken Hill Proprietary Company Limited;
Australian Iron and Steel Proprietary Limited within the jurisdiction of the Iron and Steel Works Employees (Australian Iron and Steel Proprietary Limited) Industrial Committee and the Quarries (Australian Iron and Steel Pty Limited) Industrial Committee;
Australian Wire Industries Pty Ltd at its Newcastle Wiremill;
The Council of the City of Newcastle;
The Australian Gas Light Company;
The Water Board.
and excepting also
Employees in or about coal mines north of Sydney, in or about coal mines in the South Coast district, in or about coal and shale mines west of Sydney;
Employees within the jurisdiction of the County Councils (Electricity Undertakings) Employees Industrial Committee, the Smelting, &c. (Electrolytic R. & S. Company, &c.) Industrial Committee; the Smelting and Fertilizer Manufacturing (Sulphide Corporation Pty Limited and Greenleaf Fertilizers Limited) Industrial Committee, and the Cement Workers, &c. (State) Industrial Committee;
Employees for whom provisions are made under the terms of the Vehicle Industry (State) Industrial Committee;
Employees for whom provisions are made under the terms of the Parking Employees (State) Industrial Committee;
Employees for whom provisions are made under the terms of the Engineers, &c. (State) Industrial Committee
I have set out all these exclusions, although neither counsel submitted that they assist discovery of the meaning of words used in the opening description of the pertinent ‘industries and callings’.
The express exclusion of employees covered by the ‘Vehicle Industry (State) Industrial Committee’ appears to be explained by the terms of the separate NSW ‘Vehicle Industry – Repair Services and Retail (State) Award’, which was tendered by counsel for the Fair Work Ombudsman. This other award contained provisions expressly directed at employees “engaged in washing, cleaning and/or detailing … internal combustion propelled vehicles”, but only when they were employed “at or in motor garages, and/or service stations, or petrol from petrol pumps”. However, it is common ground that the present employees were not so employed.
In my opinion, both counsel were correct when they recognised that the different wording of another award with coverage of employees engaged to perform car washing services for different employers, and the existence of other vehicle industry awards and of ‘safety net’ basic wage standards, do not provide extrinsic evidence which assists the construction of the coverage provision in the Coachmaker’s &c. Award in its application to the business of Kingsford Carwash. On their submissions, the present case does not require the construction of inconsistent or overlapping industrial instruments, nor issues of industrial demarcation, which might be solved by reference to the broad policy background of the instruments or of the industrial legislation providing for their operation. On the submissions of both counsel, the present issue is to be solved purely on normal principles of statutory construction applied to the relevant words in cl.38 in the context of this particular instrument in which they appear.
This is not to say that the Court should not take into account the fact that the words appear in an industrial instrument, and not in an act of parliament. I was referred by counsel to various authorities where judges have instructed themselves as to well-known principles of construction and their application to industrial instruments. I do not propose to extract or add to these parts of their written submissions. It is enough that I note that both counsel accepted the applicability of a line of cases which have referred to ‘legal principles’ described by Madgwick J in Kucks v CSR Ltd (1966) 66 IR 182 at 184:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
The Full Court recently referred to these principles in United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board (2006) 152 FCR 18:
51 The parties agree that the proper approach to the construction of industrial instruments was stated by Madgwick J in Kucks at 184. His Honour’s statement of the principles was followed by a Full Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8] and by two Justices of the High Court in Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 at [96] per Kirby J and at [130] per Callinan J. That was the approach which was adopted by the learned primary judge.
52 A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively, bearing in mind that they are likely to have been people of a practical bent of mind. Their intention may well have been expressed in ways likely to have been understood in the relevant industry, rather than in "legal niceties or jargon."; see Kucks at 184.
53 Clearly enough, the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement; Short v FW Hercus Pty Limited [1993] FCA 51; (1993) 40 FCR 511 at 518. The context will include the statutory context in which the agreement is made.
These principles, and the judgments which illustrate their application in other cases, assist but do not solve the debate before me. As focused in the submissions of counsel, the debate is whether the present employees meet the description in cl.38 of “other employees engaged in a process connected with or incidental to the making, servicing, preparing or repairing of vehicles running on roads”. On their submissions, these words need to be understood by reference to their ordinary usage, the immediate context provided by adjacent words, and their purpose in the award’s ‘Industries and Callings’ clause.
At one stage in their case, the respondents sought to give the words ‘servicing’ and ‘repairing’ of vehicles a special or trade meaning in the context of motor vehicle industries, which was narrower than their possible general usage in relation to ‘processes’ of car washing and detailing for retail customers at a business such as that of Kingsford Carwash. They tendered a report from Mr Peter Gabriel, who has mechanical engineering qualifications and long experience in motor vehicle repairs, servicing and restoration. This was objected to, inter alia, under the construction of s.79 of the Evidence Act 1995 (Cth) explained in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588. I admitted his report on the basis that he had a sufficient background in at least some of the relevant industries, and that his evidence was relevant, at least, to deciding whether trade usage might assist to supply background to determine whether the words in the award used a specialised usage (cf Hill J in Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 at 298-299). Although large parts of his evidence amounted to no more than opinions about ordinary Australian usage, I directed that these parts should be received by way of submission pursuant to Federal Court Rules 2011 (Cth) r.5.04(3) item 19.
Ultimately, as did Hill J in the above case, I concluded that Mr Gabriel’s evidence of his understanding of ‘vehicle servicing’ and ‘vehicle repairing’ was not of any real assistance, except to confirm my own understanding of the ordinary Australian usage of these words. I was not persuaded that there was a special or narrower trade meaning for these words, nor that the award did not intend the meanings provided by ordinary usage. It appears to me that both counsel arrived at a similar view of his evidence, since in their final submissions neither of them attempted to give any words in cl.38 a technical meaning. I therefore do not consider it necessary for me to recount and analyse the details of Mr Gabriel’s evidence.
Counsel for the respondents submitted that in ordinary usage the car washing activities of the employees could not be said to be ‘the making’ nor ‘the preparing’ nor ‘the repairing’ of motor vehicles, and that they also were not ‘connected with’ nor ‘incidental to’ any such ‘process’ when they were being performed by the employees. He also submitted that the employees could not be said to have been ‘labourers and assistants employed in connection with such callings’ at that time. He therefore focused upon the phrase ‘employees engaged in a process connected with or incidental to … the … servicing …of vehicles running on roads’, as providing the only pathway possibly supportive of the Ombudsman’s case.
In my opinion, this submission should be accepted. I consider that it reflects a necessary engagement with the actual language and grammar adopted in cl.38.
Counsel for the Ombudsman at times appeared to accept that the reference to ‘servicing of vehicles’ might provide his best pathway, but also sought to bring the employee’s car washing and detailing activities within ‘processes’ of ‘preparing’ or ‘repairing’, and he emphasised the potential generality of associations allowed by the words ‘connected with’ and ‘incidental’.
However, I do not accept that Australian usage would ordinarily employ the words ‘preparing’ or ‘repairing’ for the exterior and interior cleaning services provided to customers of Kingsford Carwash or for the processes performed by its employees when providing them. The word ‘preparing’ invites the question ‘for what?’, and I do not consider that ordinary car washing at a business engaged only in that activity is a process which is preparatory to any subsequent process, event or activity in relation to the motor vehicles which are cleaned. It is an end in itself – achieving an alteration of an unclean car into a clean car, and in ordinary usage, it is not ‘preparing’ a vehicle for anything.
The word ‘repairing’ in relation to vehicles running on roads, has normal connotations of ‘fixing’ or ‘making good’ a defective or unusable vehicle. I accept the Ombudsman’s point that in some circumstances a cleaning or detailing activity on a vehicle might serve such a purpose, where there is defective paintwork or interior, affecting the use of the vehicle for its designed and usual purposes. However, in my opinion, it gives the words ‘process of repairing’ a strained or unusual usage to apply these words to the usual processes performed at a carwash of the present type. In my opinion, in common usage those processes would be regarded as cleaning or washing processes, and not as processes of ‘repairing’.
The numerous authorities which have given meaning to the expansive words ‘connected with’ and ‘incidental to’ in legislation emphasise that the ambit of the words must be discerned from the particular context, and not according to their isolated potential generality as found in dictionary definitions. In the present context, these words attach to the described lists of ‘processes’ and ‘callings’. They then extend the operation of the coverage clause to associated processes and activities which in ordinary usage would be regarded as being ‘connected with’ or ‘incidental to’ one of the listed processes or one of the listed callings. However, the process of car washing of the type obtained by customers at Kingsford Carwash is not an ‘incidental’ process, nor one which occurs in any real sense ‘connected with’ any one of the listed processes of ‘making, servicing, preparing or repairing of vehicles’. Nor are the employees employed to perform processes ‘in connection with’ any of the ‘callings’ of vehicle builders, vehicle painters, vehicle trimmers, or wheelwrights, or any other occupations.
I therefore accept the respondents’ submissions that for cl.38 of the Coachmakers &c. Award to apply, the processes performed by the employees must come within an ordinary concept of a process which should be characterised as ‘the servicing’ of a vehicle running on roads.
Counsel for the respondents submitted that the words ‘servicing of vehicles’ have a well understood ordinary meaning, which does not include their washing and cleaning at an unsophisticated business providing a cleaning and café service and no other service. He emphasised the different and much broader meanings which the English language gives to the noun ‘a service’ and to the verb ‘to serve’, in clear contrast with the transitive verb ‘to service’ and its derivative ‘servicing of’. The latter word does not have a general meaning, but only special usages in some particular contexts, which usually depending upon a particular object accompanying the verb.
Counsel for the respondents submitted:
6.The respondents are not seeking the Court to limit the meaning of the word “service”. Similarly the respondents are not seeking the Court to construe the word “service” narrowly. The respondents are simply asking the Court to construe the meaning of the word “service” when applied to motor vehicles as the legislators intended it to mean.
7.When an ordinary person is asked about “servicing his or her motor vehicle”, he or she would not normally refer to the washing or cleaning of the motor vehicle or intend that such a thing would come within that description.
8.Similarly, one does not normally refer to taking one’s car to a car wash as “servicing the motor vehicle”.
9.From a common sense perspective, and in ordinary every day parlance, the expression “a motor vehicle service” or “servicing the motor vehicle” refers to something about the purpose or use of the motor vehicle as a motor vehicle (and not merely about its state of cleanliness).
10.In other words, the first step in construing the expression “servicing of motor vehicles” or how the term “service” or “servicing” is applied to “motor vehicles” is to seek out the ordinary everyday meaning of those words as they are used in ordinary everyday parlance when applied to a motor vehicle. This does not automatically involve a dictionary and literal definition of the word “service” and then see how it can expansively apply to other things such as motor vehicles. Rather, the first step, is to see whether the expression “to service one’s motor vehicle” is an ordinary understood expression and the inquire whether washing cars falls within that ordinary understood expression.
I consider that these submissions invoke an appropriate process of construction of the words in the coverage provision of this award. The submissions do, however, stray from the purpose for which the words ‘servicing of vehicles’ are used in cl.38 and from their immediate context. The purpose is a classification of a ‘process’ for which employees are ‘engaged’ by the employer. This invites a consideration of how the activities of the employees are to be described in a context of employment in an employer’s operations, rather than how their activities would be described when performed by unemployed people for their own purposes or in other, non-employment, contexts.
The implications of the specificity of other descriptive elements of the classification also need to be considered. These elements refer at the first level specifically to the callings of employees as ‘vehicle builders, vehicle painters, vehicle trimmers, wheelwrights’, and at the second level to employment in processes of ‘making, servicing, preparing, or repairing of vehicles’. The further expansive words are attached to these specific words, and not to more generally expressed categories of employees. The specific words might not provide an easily discerned general genus of ‘callings’ or class of ‘processes’, in which the employees covered by the award must be engaged. However, they point against giving the attached expansive words an effect which renders the specific words redundant as indicators of the intended coverage. All of the words are intended to have effect and to be considered together. They all contribute and point to the purpose of the classification, which is to carve out of an uncertain general area of employment in vehicle-related industries, some specific types of employment whose employment conditions are to be governed by this award.

In this context, the respondents’ submissions should be accepted when they point to different implications of ordinary usage attaching to the grammatical form of the word ‘servicing’ when used in relation to ‘vehicles’. The very specific meanings attaching this usage are illustrated in the Macquarie Dictionary meanings:
verb (t) (serviced, servicing) 26. to make fit for service; restore to condition for service; to service a car. 27. (of a male animal) to inseminate (a female animal). 28. to meet interest and other payments on, as a government debt: to service a debt. 29. to seek to vary an industrial award or condition in it: to service an award. 30. to meet the needs of (a group of people or organisation) by providing a particular service: the road safety officer services all the schools in this area.”
When the word ‘servicing’ is used in cl.38, in my opinion, it is intended to carry only its usual meaning when used with an object of a ‘car’ or ‘vehicle’. This is within the above Macquarie Dictionary meaning numbered 26, and is also given in the Complete Oxford Dictionary as the first, and very specific, meaning of the word in this form:
servicing 1. The action of maintaining or repairing a motor vehicle, etc. Also fig.
1935 Economist 7 Dec. 1131/2 Recognised dealers with facilities for the … ‘servicing’ of the vehicles sold. 1956 Good Housek. Home Encycl. (ed.4) 143/2 Servicing and repairs which can be carried out by the handyman of the house. 1959 I Jefferies Thirteen Days X.156 ‘Where’s the bint, John? .. ‘I left her at the hospital for servicing and overhaul.’ 1970 Motoring Which? July 91/t All three needed routine servicing every 3,000 miles. 1978 D Devine Sunk without Trace 253 There was the car … Why did she put it in for servicing that particular week?
I do not consider that the cleaning activities of the employees of Kingsford Carwash come within this meaning of ‘servicing’ a vehicle. I consider that the ordinary usage of this word would not apply it to their activities, in an establishment not providing what would ordinarily be understood as car ‘servicing’ or mechanical maintenance services to its customers. In my opinion, ordinary Australian usage might allow that the servicing of a car in a commercial establishment might include a complimentary or incidental washing of the car, but would not apply the word to that activity performed as a discrete service by employees of a business providing only routine cleaning services of the present type to retail customers.
I therefore do not accept the submissions of counsel for the Ombudsman, which invited me to apply to the words ‘servicing of vehicles’ in cl.38 the general meanings for the verb ‘serve’ and its derivatives. Nor would I apply meanings from contexts where the word ‘servicing’ might be used other than in relation to vehicles running on roads. I do not consider that these broader connotations were intended when this word was used in the coverage provisions of cl.38 to define employment of its specified types of employees. I therefore do not consider to be relevant to the construction of the language used in this clause some judicial dicta in other cases cited by counsel. These all concerned the noun ‘service’ rather than ‘servicing of vehicles’ (counsel cited Perth City v DL (1994) 88 LGERA 45, Bui v Minister for Immigration & Multicultural Affairs (1999) 85 FCR 134, and Pro-Star Service Station Pty Ltd v Petroleum Products Retail Outlets Board (1998) 99 LGERA 163).
In my opinion, the language of the ‘industries and callings’ description in cl.38 of the award was intended to provide a complete and exclusive description of all the species of employees whose conditions were intended to be regulated by the award. I do not accept that the ambit of its language should be strained to encompass other employees whose employment does not fall within the grammatical structure and ordinary usage of that language.
In particular, I do not consider that this result can be achieved, as was submitted by counsel for the Ombudsman, by reference to the structure of the award in its internal classification of the covered employees in relation to their wage rates. I accept that the internal classifications include unqualified references to ‘detailer’, ‘polisher and/or cutter using buff or wet and dry rubber’, ‘steam cleaner and/or proof coater’, and ‘washer – vehicle and/or vehicle components’. However, clearly not all persons employed to perform these tasks in workplaces in NSW were intended to be covered by this award, but only those of them who first came within the specifically focused terms of this award’s ‘industries and callings’ coverage clause. This point is illustrated by the concurrent operation of at least one other award, applying to sections of motor vehicle industries in which car washers might be employed in ancillary positions.
In my opinion, it would ignore the very purposes of providing the coverage clause in the award, and would not be consistent with the relevant principles of construction when applied to such a clause, for me to construe cl.38 without close regard to its language. I consider that it would be erroneous to strain the ordinary meanings of that language, on an assumption that the employees of Kingsford Carwash must be intended to come within the present award because its internal classifications are capable of application to the employees, because the processes which they perform generally concern motor vehicles, and because those processes might not be covered by another NSW award relating to the ‘motor vehicle industry’. With respect, I consider that the reasoning of Magistrate Hart given in the NSW Chief Industrial Magistrate’s Court on 23 August 2007 in New South Wales Department of Commerce (Office of Industrial Relations) v Sand Bluff Pty Ltd t/as Crystal Car Wash Café, Chatswood erred in this respect at [26]-[30], and for that reason I decline to follow it.
For all the above reasons, I conclude that for the ‘bridging period’ from 6 to 31 December 2009, the entitlements of the present employees in relation to wage rate and casual loading are not to be ascertained by reference to the NSW Coachmakers &c. Award. As agreed between the parties, they are therefore to be ascertained under s.182 and 185 of the Workplace Relations Act by reference to the minimum guaranteed basic wage provided under the ‘transitional standard Federal Minimum Wage’ and the statutory default loading.

The coverage of the Vehicle etc Modern Award

The ‘Vehicle Manufacturing, Repair, Services and Retail Award 2010’ commenced on 1 January 2010. It is a ‘modern award’ made by Fair Work Australia under Part 2-3 of the Fair Work Act 2009 (Cth), and may be assumed to have been intended to replace what was presumably a miscellaneous body of State and Commonwealth industrial awards governing employees in vehicle industries. There can be no assumption that the language and intent of its coverage provisions drew upon the terms of cl.38 of the superseded NSW Coachmakers &c Award, or, for that matter, from the superseded NSW ‘Vehicle Industry – Repair Services and Retail (State) Award’.
The written submissions of both counsel exchanged before the hearing did not focus upon the differences in the two coverage provisions, but these became obvious in the course of their debate. As will appear, the modern award employs a different and more encompassing approach to defining its coverage. Although it contains some of the words which I have discussed above, I have decided that the modern award does extend to the present employees, notwithstanding my conclusions about the Coachmakers &c. Award.
The modern award and its schedules occupy 134 pages, but it is necessary for me only to set out its coverage provisions. Even these are somewhat convoluted. Clause 4 provides:
4.Coverage
[Varied by PR994547]
4.1This award covers employers throughout Australia of employees engaged in vehicle manufacturing and/or vehicle industry repair, services and retail, as defined in this clause, to the exclusion of any other modern award and where the employer’s establishment, plant or undertaking is principally connected or concerned with:
(a)the selling, distributing, dismantling/wrecking/restoring, recycling, preparing for sale, storage, repairing, maintaining, towing, servicing, and/or parking of motor vehicles of all kinds, including caravans, trailers or the like and equipment or parts or components or accessories thereof including the establishments concerned for such vehicles and the like;
(b)operations or allied businesses concerned with selling, distributing or supplying running requirements for vehicles (including motor fuels, gas and oils);
(c)the selling and/or handling and/or retreading and/or storing/distribution and/or fitting and/or repairing of tyres or the like made of any material;
(d)the repair and servicing of motor vehicles in the establishment of an employer not falling within clauses 4.1(a), (b) and (c) but who is engaged in the motor vehicle rental business;
(e)the manufacturing, assembling or repairing of carriages, carts, wagons, trucks, motor cars, bodies, motorcycles, railway cars, tram cars, side-cars or other vehicles or parts or components or accessories in wood, metal and/or other materials;
(f)manufacturing, assembling, fabricating, installing, servicing, maintaining, reconditioning or repairing of engines or vehicle servicing equipment and agricultural machinery or implements or the like where such employer immediately prior to 31 December 2009 was bound by clause 1.5.4(a) of the Vehicle Industry Award 2000;
(g)any operation concerned with roadside/mobile service; or
(h)driving school instruction.
4.2    For the purposes of coverage of this award:
(a)employees engaged in vehicle industry repair, services and retail means employees covered by the classifications at clause 33 and for whom Section 1—Vehicle Industry RS&R Employees applies; and
(b)employees engaged in vehicle manufacturing means employees covered by the classifications at clause 45 and for whom Section 2 applies.
4.3    Exclusions
(a)     This award does not cover:
(i) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;
[New 4.3(a)(ii) inserted by PR994547 from 01Jan10]
(ii) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;
[4.3(a)(ii) and (iii) renumbered as 4.3(a)(iii) and (iv) by PR994547 from 01Jan10]
(iii)   an employer who, on 31 December 2009 was engaged in the manufacture and/or assembly of metal parts or accessories and was bound to observe the Metal, Engineering and Associated Industries Award 1998; or
(iv)   an employee in a car park where the employee’s undertaking does not provide repairs and service and/or servicing facilities of motor vehicles other than supplying petrol and oil.
(b)Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
[New 4.4 and 4.5 inserted by PR994547 from 01Jan10]
4.4This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
4.5This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
[4.4 renumbered as 4.6 by PR994547 from 01Jan10]
4.6The award does not cover an employee excluded from award coverage by the Act.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
The debate before me focused upon the employers covered by some of the opening words of cl.4.1 and of its sub-group of employees within paragraph (a). Neither counsel invoked any other extending or excluding parts of the coverage clause.
Putting aside descriptions of employers which are obviously incapable of applying to Kingsford Carwash, these parts of cl.4.1 raise two necessary elements, which may be focused by the following questions:
i)Was Kingsford Carwash an employer of ‘employees engaged in … vehicle industry repair, services and retail as defined in this clause’; and also
ii)Was it’s ‘establishment, plant or undertaking … principally connected or concerned with … repairing, maintaining, … (or) servicing … motor vehicles of all kinds…’?
The definition which applies to the first element, is found in cl.4.2(a), which itself has two necessary components: the employees must be ‘covered by the classifications at clause 33’; and ‘Section 1-Vehicle Industry RS&R Employees’ must ‘apply’. These two references both take the reader to cl.33 and its heading. They commence:
33. Classification and minimum weekly wages
[Varied by PR992635, PR994547, PR996631, PR997994, PR506970, PR509120]
33.1All adult employees (other than adult apprentices) covered by this section must be classified according to the structure set out in clause 33.4 according to the skill levels and duties required to be exercised by the employee in order to carry out the principal function of the employment as determined by the employer. The skill level definitions, according to which employees are to be classified, are set out in Schedule B—Vehicle Industry RS&R—Skill Level Definitions
…
The subsequent subclauses of cl.33 and the later clauses of Section 1, explain classification descriptions and skill levels. It is enough to note that cl.33.4 has a table of minimum weekly wages for ‘adult employees’ according to ‘wage group levels’ which are defined in Schedules to the award. The first level, ‘R1’, is explained in Schedule B:
Schedule B—Vehicle Industry RS&R—Skill Level Definitions
[Varied by PR991598, PR506970]
B.1    Vehicle industry RS&R—employee—Level 1 R1 (entry)
An employee at Level 1 is an employee who has undertaken little or no formal or informal training. A Level 1 employee may be undertaking up to 38 hours of induction training. The induction training may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurance.
An employee at this level would acquire/possess skills relevant to the performance of routine duties essentially of a manual nature and to the level of their training:
o   performs general labouring and/or cleaning duties;
o   has basic numeracy skills;
o   exercises minimal judgment;
o   works to defined procedures and under direct supervision; and
o   may be undertaking structured training so as to enable the employee to progress to a higher level.
Classifications contained within Level 1 R1
o   Car cleaner/washer
o   Workshop cleaner
o   Car polisher—by hand
o   Detailer—other
o   Driveway attendant
o   Office cleaner
o   Parking attendant
o   Process worker
o   Tradesperson’s assistant (see also Level 2)
o   Employee not elsewhere prescribed as contained in clauses 10 and 11 in previous award
Although I cannot be confident that I have fully understood the complex structure of these parts of the award, they appear to show that employees who are engaged in general cleaning duties and perform work as ‘car cleaner/washer’ fall within the definition of ‘employees engaged in …vehicle industry repair, services and retail’ for the purposes of cl.4.1. As I understood it, counsel for the respondents did not ultimately contend otherwise, nor dispute that the present employees are capable of being so classified.
I therefore find that the first element in the debated parts of cl.4.1(a) of the coverage clause is satisfied in relation to the present employees.
It is to be noted that the language of the second element requires more that the first element’s characterisation of the work of the employees, but focuses upon an additional classification of the employers’ ‘establishment, plant or undertaking’. This second element does not, as did cl.38 of the Coachmakers &c. Award, turn upon a description of an employee’s ‘calling’ nor upon a classification of a ‘process’ in which the employee is engaged. Rather, the test for this element is whether one of the described activities involving motor vehicles is related to any one of the features of the employer’s business which might be described as ‘establishment’, ‘plant’ or ‘undertaking’, provided that the relationship is one of ‘principally connected or concerned with’.
It is to be noted that the full list of the described activities involving motor vehicles in cl.4.1(a) is in very extensive terms, which appear thoroughly to cover a very large field of businesses providing goods and services relating to motor vehicles. That list is “the selling, distributing, dismantling/wrecking/restoring, recycling, preparing for sale, storage, repairing, maintaining, towing, servicing, and/or parking of motor vehicles of all kinds…”. Even without adverting to the further extensions of coverage in the subsequent paragraphs of cl.4.1, it becomes apparent that the language of the second element in cl.4.1(a) encourages the reader to detect a very expansive intent underlying the second element in the coverage clause. It appears intended to apply whenever there is a connection of the employer’s business with the provision of goods or services relating to motor vehicles.
However, I accept that each of the words in the list of described activities needs to be considered, and that the very extensiveness of the list suggests that each word is used with its own meaning or shades of meaning, which may be distinct from other words in the list.
It is at this point in the analysis that the meaning to be given to the three words upon which counsel focused needs to be decided, and some similarities with the debate in relation to the Coachmakers &c. Award emerge. Those words in cl.4.1(a) are ‘repairing’, ‘maintaining’ and ‘servicing’ of motor vehicles.
I have above concluded that in ordinary parlance processes of ‘repairing’ or ‘servicing’ of motor vehicles would not be regarded as encompassing the car washing services provided to customers of Kingsford Carwash. For the same reasons given above, I do not consider that its ‘establishment, plant or undertaking’ would ordinarily be regarded as being ‘principally connected or concerned’ with processes or activities of ‘repairing’ or ‘servicing’ of motor vehicles. In short, I consider that the car washing services provided by the Kingsford Carwash are not themselves characterised as ‘repairing’ or ‘servicing’ motor vehicles in ordinary parlance, and they are not otherwise ‘principally connected with’ or ‘concerned with’ activities which would be given those descriptions.
However, unlike the Coachmakers &c. Award, the list in cl.4.1(a) defining relevant establishments relating to motor vehicles also includes a reference to ‘maintaining of motor vehicles’, as a separate type of activity performed by an employer’s business. In this context, and in the broader context of cl.4.1, I consider that the word ‘maintaining’ is intended to be given its broad ordinary meaning, which necessarily extends the coverage beyond an ordinary understanding of a business concerned with ‘repairing’ or ‘servicing’ of motor vehicles.

In ordinary Australian parlance, in my opinion, ‘maintaining’ a motor vehicle includes maintaining its ordinary appearance and cleanliness, and an establishment concerned only with cleaning the motor vehicles of its customers would ordinarily be described as ‘principally connected or concerned with … maintaining motor vehicles’. I do not accept the submission of counsel for the respondents that, for an employer’s business to be ‘maintaining’ motor vehicles, it must always involve more than cleaning vehicles, so that “an establishment that merely washes the car is not ‘maintaining’ the car”. I agree that ‘maintaining’ can mean more than cleaning, but it may also refer to cleaning alone. In my opinion, an establishment which cleans cars is ‘principally connected with …maintaining motor vehicles’ within the language of cl.4.1(a).
In this respect, my understanding of the meaning to be given to ‘maintaining’ is again informed by dictionary definitions. The Macquarie Dictionary defines the verb ‘maintain’:
verb (t) 1. to keep in existence or continuance; preserve; retain: to maintain good relations with New Zealand. 2. to keep in due condition, operation, or force; keep unimpaired: to maintain order, maintain public highways. 3. to keep in a specified state, position, etc. 4. to affirm; assert (with a clause, or with an object and infinitive): maintain that it is right, maintain it to be true. 5. to support in speech or argument, as a statement, etc. 6. to keep or hold against attack: to maintain one’s ground. 7. to provide with the means of existence. … - maintainable, adj – maintainer, n.
The Macquarie Dictionary does not provide a separate meaning for ‘maintaining’, since, as the complete Oxford English Dictionary indicates, this form of the word principally means “the action of the verb MAINTAIN”. This is unlike the words “servicing of …”, which takes different meanings that “the action of the verb ‘to serve’”, and is derived from the more specialised verb ‘to service’. Unlike ‘servicing’, no particular or specific usage attaches to the phrase “maintaining of motor vehicles”. In particular, I do not consider that there is any ordinary meaning for that phrase which would not make it applicable to the business of Kingsford Carwash and the services for customers which are at the heart of its ‘establishment’.
In my opinion, the café services also provided by Kingsford Carwash to its customers were clearly incidental and subordinate to its business, and do not alter the characterisation of its ‘establishment, plant or undertaking’ which, for the above reasons, brings the employer within cl.4.1(a). The contrary was not contended by the respondents’ counsel.
I am therefore satisfied that cl.4.1(a) of the modern award gave coverage for its wage rates to the present employees of Kingsford Carwash over the periods of their employment from 1 January 2010. Consequently, as agreed, their entitlements are to be calculated by reference to the wage rates given effect under that award, and not otherwise by reference to the National Minimum Wage Order.
I do not propose at this stage of the matter to formalise any of my above conclusions by way of declarations. I will need to receive further submissions on whether such relief is necessary, and how any declarations should be formulated. I shall consider this at the resumed hearing of the matter, which will also address the outstanding issues of quantum of penalty and compensation. I note that the parties should now be able to reach agreement as to the precise amounts by which each of the employees were underpaid, and formulate appropriate compensation orders, including interest calculations. If they can also reach agreement as to appropriate penalties, then this also would assist the Court.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 22 June 2012