Re the Carpenters and Joiners (Long Service Leave) Award 1964 And Application by Victorian Chamber of Manufactures for an Interpretation of the said Award

, '

I n d u s t r i a l L

In te rpre ta t ion of

award

Carpenters and

jo ine r s

maklng

Joinery work

- whether shop

f l t t e r s i n c l u d s d

i r l

I	Award - Conciliation	a d	Arbitration Act 1904 (S. 110)
I I I I
!
I
i
i

the Carpenters and Joiners

(Long Service Leave)

Award 1364

I	-
I

And Application bv Victor ian Chamber o f Dlanuiactures f o r an

In t e rp re t a t ion

s a i d

t h e

Award

V No. 12 of 1978

l	Coram: Srnithers J.
i
I
10 August 1978
Melbourne

^ .

1 *

I N THE FEDERAL COURT OF AUSTRALIA

)

INDUSTRIAL

DIVISION

V No. 12 of

1978

VICTORIA DISTRICT

REGISTRY

I N Tm MATTER OF TEE CONCILIATION

AND ARBITRATION ACT 1904

AND I N T € E MATTER OF THE

CARPENTERS

AND JOINERS (LONG SERVICE LZAVE)

AWAFD 1964

AND I N THE MATTER OF AN APPLICATION

BY THE VICTORIAN CHAI\TBER OF

MANUFACTWS

FOR

INTERPRETJTION

OF THE ABOVE A!*IARD

O R D E R

JUDGE MAKING ORDER	SMITHERS J.
DATE OF ORDER	10 AUGUST 1978
WHERE IADE	MELBOURNE
THE COURT ORDERS:

That by virtue of clause

3 ( l )

the Carpenters

and Jo ine r s (Long Service Leave)

Award 1964 t h a t Award operates

i n r e l a t i o n t o employees

i n t h e

employment

of carpenters and

joiners making jo inery work including those

employees i n

employment as

employee

carpenters and joiners

engaged i n jo inery

work

d e f i n e d i n p a r t s

( a ) and

(b)

the def in i t ion thereof

contained i n the Carpenters and Joiners

Award,

1962 as shop

f i t t e r s otherwise,

in each-case, than

on s i t e .

I N THE FEDERAL COURT OF AIJSTRALIA 1

INDUSTRIAL

DIVISION

V No.

12 of 1978

VICTORIA DISTRICT

REGISTRY

I N THE MATTER OF THE CONCILIATIOIq

AND ARBITRATION ACT 1904

AND I N THE YiTTER OF THE CARPENTERS

AND JOINERS (LONG SERVICE	LEAVE)
AWARE 196k

AND I N THE MATTER OF AN APPLICATION

BY THE VICTORIAN CHAMBER OF NAiiACTURES

FOR AN INTERFRETATION	OF	THE	ABOVE
AWAFB

SMITHERS J.

10 AUGUST 1978

REASONS

FOR

JUDGMENT

The Victor ian Chamber of Marxfactures seeks an

interpretation of

c lause 3 ( l ) of

the Carpenters and Joiners

(Long Service

Leave)

Award 1964

pursuant

t o

s.110

the

Conci l ia t ion

e d

Arbi t ra t ion

Act

1904,

t o t h e e f f e c t t h a t t h e e x p r e s s i o n

"the

employment

carpenters and Joiners

making jo inery workll appeariilg i n

clause 3(1) inc ludes the

emplolyment of employee carpenters

and Joiners engaged - as

shop

f i t t e r s . .

Dr.C. Jessup

appeared

for t he app l i can t .

i'4r.G.

Evans

appeared

f o r t h e

Amalgamated

Society of Carpenters and

Joiners of

Australia

and the Building Workers ' Industrial

Unicn of Australia to oppose the interpretation of the

award

a s

sought

the appl icant .

They

a r e r e f e r r e d t o h e r e a f t e r a s

the	respondents.

By clause 3 of t h e award reported a t (1965) 111 C,A.R.

-1128

and he re ina f t e r ca l l ed

!Ithe Leave

Award"

it i s provided as follows:-

" 3 . PARTIES BOUND AND INCIDENCE OF AWARD

(1) This

award

sha l l ope ra t e

i n the S ta t e s

of Vic tor ia and South Aus t ra l ia in re la t ion

t o t h e

employment

carpenters and joiners

making

jo inery work

and subjec t to c lause

l 3 of

th i s award t o t h e

same

exten t as

t h e awards of

t h i s

Commission

made

the 26th September, 1962 and the

28th October,1963

as var ied up t o and inc luding the

10th March,1964 and known as the Carpenters and

Jo iners

Award

1962, a

c e r t i f i e d copy of which

i s

annexed hereto and

marked Appendix

llA'l, bu t

sub jec t t o the

same exceptions and exemptlons

and

r e se rva t ions a s a re p re sc r ibed

-chat

award.

(2)

This atrard s h a l l be binding

upon the fol lowing

organisa t ions -

(a )

The Amalgamated Society of Carpenters and

Joiners ,

the Building Workers1 Industr

Union of

Aus t ra l ia ;

(b)

The Victor ian Chamber of

Manufactures.11

appa ren t t ha t fo r pu rposes o f the in t e rp re t a t ion

clausc 3 (1)

some

words nob

ac tua l ly forming par t o f the tex t

must

understood to

in se r t ed a f t e r t he expres s ion

IIAppendix

' A '

appearing therein.

The content of what i s t o be understood is ,

of course, determined by the text

actual ly appearing

i n the

clause as enacted.

A s

s o

determined that content

may

accura te ly

formulated

i n

the expres s ion "ope ra t e in r e l a t ion to such

employmentt1.

The

r e l evan t pa r t o f c l ause

3 ( l ) would

then read:-

11.. . end marked

Appendix

rlA1f

o p e r a t e i n r e l a t i o n

t o such employment but subject

to . . .

Accordingly the solut

ion of

the interpretat

ion issue

before the

Csurt depends primarily upon the

answer t o the

ques t ion : a re persons in

employment

carpenters

and

j o i n e r s who

a r e engaged

shop

f i t t e r s p e r s o n s who

may

said t o be i n employment as carpenters

and f i t t e rs making

jo inery work,

within t h e meaning of

c lause 3(1)

of the

award?

the answer t o that quest ion is i n t h e

a f f i r m a t i v e t h e f u r t h e r q u e s t i o n a r i s e s ,

namely whether

the Carpenters

and Jo iners Awards of 1962, 1963 and 1964

((1963-1964)

105

C.A.R.

741)

o p e r a t e d i n r e l a t i o n t o t h e

employment

of carpenters and joiners

employed as

shop

f i t t e r s who perform the

work of making jo inery work.

A s t h e problem unfolds

I think those two quest ions merge

i n t o one.

Those

las t

mentioned

Awards

a r e h e r e i n a f t e r

r e f e r r e d

t o

as "the

Carpenters

Awardll.

is t o be

no ted tha t t he app l i can t

and

the respondents

concede

that the expressions "carpenter and joiner" and

Itcarpenter o r jo iner" where

the context

so r e q u i r e s , a r e t o

ap terpre ted

as r e f e r e n c e s t o

any person

employed

as a

carpenter o r

jo iner .

It $0 follows

from

the

random

va r i a t ions which

appear

i n the award.

TheLeave

ha rd p rov ides long se rv ice l eave bene f i t s

i n

respec t 3f long service

by an employee employed

i n t h e

c lass of

employment

s p e c i f i e d i n c l a u s e

3 ( l ) thereof .

Certain

such b m e f i t s a r i s e f r o n

such service durinE

an unbroken contract of

employment of ;O years aQd other

bene f i t s acc rue a f t e r

years unbroken service (clauss

and

6).

It i s t o be observed

t h a t no individual employers are

respondents to the

Leave Award

and the only

employei

organizat ion which

is a p a r t y t o it is the Vlc tor ian

Chamber

Manufactures.

It the reby d i f f e r s

from the Carpenters '

Award

whichbinda a g r e a t number

of individual employers and various

employer organizstions including the Victorian

Chamber

Manufactures.

It may be noted also

that

whereas

the Carpenters

Award

appl ies to Vic tor ia , South

Australia

and Tasmania,

the

Leave

Award

opera tes only wi th in the S ta tes

o f

Victoria and

South Australia.

Thus

t h e Leave

Award

is not concerned

provide long serv ice leave benef i t s for

a l l

employees

whose

employment i s covered by the Carpenters '

Award.

Within the

geographical

limitations

mentioned

above

it provides

benefi ts

f o r employees of employers who

a r e t h e

members of

the Vic tor ian

Chamber of Manufactures

who have served

i n the spec i f i ed

employment

fo r t he r equ i r ed pe r iods .

The

Leave

Award

assumes

tha t t he r e l a t ionsh ip o f

employer

and

employee nay

p e r s i s t f o r

10 yea r s o r

15 years with

respec t

t o the employment

described as "making jo inery work': s o

. cons i s t en t ly , t ha t a t t h e end of the period

can be

said

as a mat te r of fac t

that there has been

an unbroken employment

in r e spec t o f

The

performance of

t h a t work

f o r t h e r e q u i r e d

period.

And

it p r o v i d e s t h a t t h a t b e n e f i t

may

be obtained

i f

t h e work, the subject of

that employment, was that of making

jo inery work

i n r e l a t i o n t o which

the Carpenters '

Award

operated.

des i rab le

a t

t h i s s t a g e t o s t a t e t h e e f f e c t o f t h e

evidence with respect to re levant c i rcumstances in the industry

i n which

carpenters and jo iners a re

employed.

appears :

( a )

tha t persons who

a r e employed as carpenters and jo ine r s

a re

those

who have

undergone

apprenticeship

training

a t

the

end of which they are regarded

qua l i f i ed

carpenters and joiners ;

(b )

t ha t

app ren t i cesh ip

t r a in ing

general

i n content ,

and that

apprent ices

in tending

work i n

shop f i t t i n g does

not

fer

f rom

that

those

i n t e n d i n g t o

work

i n

other branches of carpentry

and	jo inery ;

(c )

tha t

i n r e l a t i o n

t o

j o i n e r y

work

t h e r e

a r e

dis-

t i n c t i o n s between

that performed

i n shop f l t t i n g

and what

may

ca l led genera l jo inery :

( i )

shop

f i t t i n g i n v o l v e s

t h e p r e p a r a t i o n o f

shop

f r o n t s ,

windows ,

f l o o r s ,

cei l ings,wlls ,

counters ,

she lves

and

ther

f i t t ings .

Such

f i t t i n g s may

be wholly o r p a r t l y of

wood,

metal o r

p l a s t i c

o r other

mater ia ls .

It	a l so invo lves the in s t a l l a t ion o f t hose

items on s i t e .

Normally

the

f i t t i n g s a r e

spec ia l ly des igned for par t icu lar p remises . On the other hand general joinery involves the

manufacture of

window frames, door frames,

doors, wardrobes and cupboards

o f

a l l

kinds,

no t necessa r i ly spec ia l ly des igned fo r

par t icu lar premises

but

f o r t h e

most partmade

according to s tandard design;

( i i ) t h e

woPk

invo lved in

shop

f l t t i n g

requi res in genera lah igher degree of

ski l l

in t h e use

of the techniques

jo inery

and i n t h e

a b i l i t y t o r e 3 d

and apply drawings

and

ins t ruc t ions	than	that	involved in genera l
jo inery ;

(d)

i n a

jo ine ry

e s t ab l i shmen t

i n

which

there

are

carpenters and joiners

employed

i n the work

o f

shop f i t t i n g and	others employed i n general
joinery the former	would normally be referred

t o as

shop

f i t t e r s a n d t h e l a t t e r

as jo iners ;

( e>

it is customary i n an

establishment

which

engages in shop f i t t i n g t o

f ind

employees engaged

i n t h e

manufacture of the

f i t t i n g s i n the employer’s

work

shop and

who

r a r e l y work

on s i t e ,

and

others

who normally work

on s i t e and r a r e l y work i n

t h e

workshop ;

( f )

work

performed

shop

f i t t e r s i n the

mployer’s

work

shop would normally be directed

t o t h e

man-

ufac ture

o f

f i t t i n g s and

p a r t s t h e r e o f f o r

i n s t a l l a t i o n on

s i t e and that work

would

i n its n a t u r e a n d q u a l i t y , e s s e n t i a l l y t h a t

jo inery ;

(g)

some establishments

employees

would

work

p a r t l y

i n

genera l jo inery and par t ly

i n

shop

f i t t i n g , e s p e c i a l l y

i n t h e e a r l y p e r i o d	of	employment	a f t e r completion	of
apprent iceship;

. _

(h) t:'ork

performed by shop

f i t t e r s on

s i te would

normally involve

some

jo inery work

but ins ta l laTion

of shop

f i t t i n g s would

frequently be performed

by ope ra t ions o the r t han those r e fe r r ed to in

p a r t ( a ) o f t h e d e f i n i t i o n o f j o i n e r y s e t f o r t h i n

the Carpenters '

Award

and other than those

normally required

the technique of joinery.

i s p e r m i s s i b l e t o have these factors

i n mind

i n

r e l a t i o n t o t h e o p e r a t i o n

t he p rov i s ions

of the

Leave

Award

and the Carpenters '

Award.

It must be remembered

however

tha t

the task before the

Court

i s t o i n t e r p r e t t h e

Leave

Award.

this

t a s k

may

we l l be necessa ry to in t e rp re t p rov i s ions

of the Carpenters '

Award but the ultimate problem

is TO ascer-

t a i n t h e

meaning

o f

t h e c r i t i c a l p r o v i s i o n

o f

the

Leave

Award.

It was

conceded by

the appl icant

and r i g h t l y so t h a t t h e

Leave

Award

i s to be r ead

and in t e rp re t ed i n the contex t

the Carpenters '

Award.

And Mr.

Evans on behalf

the

respondents

contended

t h a t it

is i n the

gene ra l s t ruc tu re

and

c e r t a i n

p a r t i c u l a r p r o v i s i o n s

o f

the Carpenters '

Award

that

the so lu t ion

t he p re sen t

problem

i s t o be

found.

It 1s convenient

there-

f o r e t o	look	a t the content	and arrangement of	the	Carpenters'
Award.

Clause 5 of the Carpenters '

Award is headed "Scope".

s t a t e s t h a t

SUbJeCt

to the excep t ions

and

conditions Ynereln

contained the amrd appl ies to ' 'the emplo-ynenT; of persons

employed as

carpenters and joiners

o r as

carpenters making

jo inery work who	are employed by	any	employer".	Tilork	of the
8

c a t e g o r i e s

f o r

which

ra tes

a re

p rovided

bjr

the

award but which

is periormed

i n c e r t a i n s p e c i f i e d

circumstances i s excepted fron

its coverage, for

example

construction of wharves, the

making

implements

a g r i c u l t u r e ,

t h e

work

of sh ips ' carpenters

o r ships!

joiners .

Certain

employers

e .g .

the

Victor

ian

State

E l e c t r i c i t y Commission

a r e

bound

spec i f i ed

p a r t s of

the award.

It i s no

doubt

t o

p r o v i s i o n s

such

as t h e s e t h a t c l a u s e

t h e Leave

Award

r e f e r s t o

exceptions, exemptions and reservations prescribed

the

Carpenters

Award.

Various def ini t ions

i n the Carpenters'

Award

are

important.

The f irst of

these

is t h e d e f i n i t i o n

'!Carpenter	o r Joiner" which	in	c lause	2 is defined
as :-

. .an

employee engaged upon

cons t ruc t ion

work and upon

work ordinarily performed

carpenters

o r j o i n e r s i n

any workshop,

establishment o r yard.	Such work may
include -

( a ) Work

i n connection with prefabricated

EiisL.tting;

The

s t r i p p i n g of

form

work

s h u t t e r s o r

of	cur ta in wal l ing ;

The	erection of suspended ceil ings

except where wet plaster

is used;

(f)

The erection of metal

windows o r doors

provided

tha t :

( i ) t h e

drawing

o r shaping

metal

not requi red in respec t of (d) , (e )

and

( f ) hereof;

and

( i i ) n o t h i n g i n t h i s d e f i n i t i o n

shall

construed as glving a carpenter an

e x c l u s i v e r i g h t t o t h e

work

spec i f led

(d)

( e )

and

( f ) hereof ."

“Construction workll i s def ined i n clause 2 as:-

“All carpentry and jo inery work, wherever performed,

o ther than that def ined as maintenance

work,

jo inery work o r shzp work.

Such

work

s h a l l

consis t of the erect ion, ornamentat ion

o r

demolition

of bui ldings

o r

s t r u c t u r e s

and the making, preparing,

assembling o r f ix ing o f

a l l woodwork

and f i t t i n g s

connexion therewith and the maklng, preparing,

assembling and fixing of any material , necessitating the use of carpentry tools o r machines the pre-

fabr ica t ing of

a bu i ld ing in an

open yard

i n

Victoria, and

a l l shopf i t t i ng work

s i t e

.l1

“Joinery work11 i s de f ined in c l ause

as:-

(a)

the

assembling

and/or

cramping,

and/or

glueing and/or dressing after assembling

of prepared ( i .e . dressed, mort iced

tenoned)

pieces

t imber

for

the

manufacture

o f

any a r t i c l e ;

(b)

a l l j o i n e r y work

o ther

than

tha t desc r ibed

i n

(a), provided such

work

i s

ca r r i ed ou t

i n a workshop,

not located on

a n lion s i t e ”

bui ld ing pro jec t . It

- _

t o be observed that:-

( a )

so fa r as employers

engaging

i n shop f i t t i n g were

concerned

was

though t des i r ab le no t t o r e ly

upon the general statemen-cs

of the meaning

l lcarpenter and

Jo iner” but to dec lare express ly

t h a t

that

expression includes employees engaged

i n shop

f i t t i n g ;

(b )

t he

de f in i t i on

“ jo inery rvorkll

i s i n terms

which,as to cer ta in aspects of joinery work, include

only such

work as is performed i n the course of

shop

f i t t i n g c a r r i e d o u t i n

workshop

not loca ted

!Ion

s i t e ” b u i l d i n g p r o j e c t ;

(C)

t h e

d e f i n i t i o n

I1construction

worku1

extends

t o

shop f i t t i n g work perforned on

s i t e .

O f

importance also are the

numerous

provis ions of

the Carpenters '

Award

which provide

f o r r a t e s

of pay and other

copdi t ions

which

d i f f e r a c c o r d i n g t o t h e c l a s s

work

performed.

In p a r t i c u l a r ,

r a t e s

and

condi t ions i n respec t

of the

work

of shop

f i t t i n g a r e p r o v i d e d d i f f e r i n g

from those

i n r e s p e c t	of	work performed by	jo ine r s ,	which	a re sepa ra t e ly
. I

pres,cribed.

Thus c lause 10 provides

for margins of

Z5.6.0

per l week

t o b e p a i d t o c a r p e n t e r s

engaged

i n

" jo inery work

(b)(as defined)" andto carpenters engaged

i n "shop

f i t t i n g work1r.

The

margin

f o r c a r p e n t e r s

engaged

in " jo inery work(a) (as

def ined)"

i s E3.7.0.

Clause

provides

for

!!Industry

Allowancell of

p e r week

f o r c a r p e n t e r s

engaged on

l lconstruct ion work (as def ined)" o r on llshop f i t t i n g work i n Victoria,whether on s i t e or otherwise" or Ilshop f i t t i n g work

s i t e i n South Australiay1. Clause 12 provides

that

tool allowance

is payable a t the r a t e o f

8/9d.

p e r week t o

carpenters engaged on ylconstruction

work

(as def ined)

shop

f i t t i n g workl l ,a t the rate

5/-

per

week

t o c a r p e n t e r s

engaged on Iyjoinery work (b) (as def ined)"

o r llshop workf1,

and a t t h e r a t e

l/3d.

p e r week

to ca rpen te r s

engaged I n

jo inery

work

(a ) (as prescr ibed)k lause 30(a)

makes

p r o v i s i o n s f o r

payments

f o r f a r e s

and

t r a v e l l i n g t i m e t o

pa id

to ca rpen te r s

engaged

t lconstruct ion work

(as defined)", and

clause 3O(b) provides that vlhere a maintenance carpenter,

o r

j o i n e r ,

o r a

shop carpenter,

o r a

shop

f i t t e r is requ i r ed to

work	away from his depot o r shop l r r e spec t ive of whether such

i s c l a s s i f i e d as

cons t ruc t ion work,

i s a l s o t o

be paid

fares and t ravel l ing t ime al lowances.

The

s igni f icance for present purposes , o f

these provisions of the Carpenters '

Award

i s

t h a t t h e r e

a r e p r o v i s i o n s r e l a t i n g t o

shop

f i t t e r s which

not apply

t o j o i n e r s , t h a t t h e d e f i n i t i o n o f j o i n e r y

work

c e r t a i n l y

does h o t embrace

a l l t h e work done by shop f i t t e r s o r

indeed a l l t h e work

joinery done by

shop

f i t t e r s .

is emphasised that when

t h e award dea ls with var ious

a l l ~ ~ u a n c e s ~ p r o v i s i o n

s made

f o r shop

f i t t e r s i ndependen t ly

of any provision

made

f o r j o i n e r s

and

i n var ious cases there

I s a

d i f f e r e n t i a t i o n i n favour of the shop f i t ter , and

th i s ,

whether he

works on s i t e o r i n t h e

shop.

From c lause 12,

i n p a r t i c u l a r it

s e e n t h a t t h e

award

proceeds on the

basis t h a t shop f i t t i n g work

is d i s t i n c t from joinery

work

as def ined there in .

The award clear ly proceeds

on The

basis

t h a t t h e

shop f i t t e r is i d e n t i f i a b l e as

such,

i n t h e

shop

and elsewhere,

as an employee d i s t i n c t from the employee

doing joinery

vork

tha t

i s no t

i n the na ture of shop f i t t lng .

It was

contended that the re i s apparent i n t h e

terms of the Carpenters'

Award an assumption o r conception

t h a t employment i n shop f i t t i n g work and employment

i n

jo inery work

a r e two

d i s t i n c t c l a s s e s

employment,

and that

p a r t i c u l a r r e f e r e n c e s t o j o i n e r y

work

o r the

work

j o i n e r s do

not extend to such

work

when

Ferformed

i n t h e

course of the

employment of

carpenter o r j o i n e r engaged i n

shop f i t t i n g .

It was

said that th i s assumption o r

conception i s adopted i n t h e Leave Award

o r i s incorporated

t h e r e m .

was

said

t h a t t h e n a t u r e

employee's

employment was n o t

t o

be determined

reference

the

technique which he might be exercising

a t

tiny

p a r t i c u l a r

t ime, bu t by re ference to the c lass of

h is

employment

ascer-

t a inab le

reference to the classes of employees provided

f o r i n the Carpenters*

Award.

Thus,

those

employed as

jo ine r s do general joinery

work and those

employed as shop f i t t e r s d o

shop f i t t i n g work

and t h e l a t t e r ,

so it ws

argued, const i tute a&ss

q u i t e d i s t i n c t

from

those who

make

jo inery

understood inthe

If t h i s be

s o then reference

i n the Leave

Award

to pe r sons

engaged i n making jo inery work would no t be

a r e fe rence to

persons engaged

i n shop f i t t i n g work.

There is a n a t t r a c t i o n i n this contention.

supported by the arrangement of.clause

of the Leave

Award

and

the ac tua l annexure to tha t

award

o f

the Carpenters'

Award

i n

r e l a t ion to the inc idence p rov i s ion .

But

i n my

o p i n i o n t h i s a t t r a c t i o n

i s

deceptive.

t o be no ted tha t i n the

two

awards under

considerat ion the expression

"making jo inery workf1 is found

only i n clause 3 ( l ) of

t h e Leave Award

and i n clause-5 o f

the Carpenters'

Award.

i s r easonab le to in fe r t he re fo re

t h a t i ts use i n t h e Leave Award

derives from clause

5 o f t h e Carpen-

t e r s '

Award.It

is c l e a r from clause

o f t he Carpen te r s ' ha rd

t h a t when

ca rpen te r s a re

employed i n making

jo inery work

they

are within the scope of the Carpenters 'Award and that

award

appl ies

t o t h e i r employment.

the

language of clause

the

Leave

Award

the Carpenters '

Award

o p e r a t e s i n r e l a t i o n t o

that

employment. The expression"making

joinery

workVaises

question of construction.

One

usua l ly

makes

th ings r a the r

than work.

It i s a quest ion wplether i n th i s expres s ion

one

should construe

llmaklngll

as I'doing'' o r construe " joinery

work''

as items o f production the r e s u l t o f t h e technique o f

joinery,

I think

for-present

purposes ,

each

construct ion

l e a d s t o t h e

same

conclusion.

The

expression i s used i n c lause 3(1)

t h e Leave

Awardto designate

i n terms of subject matter

i n an area

employment

i n work

i n r e l a t i o n t o which

t h e award

is t o

ope ra t e , no t ove ra l l , bu t t o the

same

ex ten t

and

o n l y t o t h e

same

exten t that the Carpenters '

Award

operates i n r e l a t i o n t o

tha t sama area of

employment.

If the Leave Award were

in tended to apply to

a l l jo inery work

performed by carpenters

and

jo ine r s i n r e spec t o fwhich the Carpen te r s '

Award

operates

one

would

expec t to f ind s imple

words

t o tha t

e f f e c t .

But

t h e

a c t u a l words used quantify

o r measure t h e work

within t h e

designated subject mat ter to which the

award

i s

to a2p ly

spec i fy ing

that

the boundaries thereof are those determined

t h e e x t e n t t o

which

the Carpenters '

Award

operates i n

r e l a t i o n t o

work

within

the designated subject mat ter .

is perhaps signif ' icant

that the scope

of the Leave Award i s

s t a t e d i n t e r m s

which omit

t h e

f irst part

of the scope

provision of clause

of the Carpenters '

Award.

The terms of clause

3(1) are cons t ruc ted

on the basis

t h a t t h e r e

some

area of

employment of carpenters and

jo ine r s

engaged

i n making

jo inery work

i n r e l a t i o n t o which

the Carpenters '

Award

does not operate .

In other

words

tha t ca rpen te r s

and j o i n e r s who

might

i n accordance with

the

ordinary meaning of

the words,

be considered as engaged

i n

making

jo inery

work,

a r e no t necessa r i ly pe r sons in

r e l a t i o n t o

whom

the Carpenters

Award

operates.

would

a p p e a r t h a t t o r e f l e c t

and

implement

+h i s

bas i s o r assumption disclosed

by t h e way

i n which clause

3 ( l ) is expressed one must t r e a t that clause as conferr ing

upon

the Carpenters '

Award

t h e

f i na l word

i n d e l i n e a t i n g t h e

area of

"making jo inery work" t o which t h e Leave Award

appl ies .

It is permissible

therefore

and

indeed

essential

t o have regard

t o t h e d e f i n i t i o n s

in and the structure of

the Carpenters '

Award.

There

i s no

def in i t ion of

"making

jo inery workf1

bu t t he re

i s a

d e f i n i t i o n of Joinery

work.

For

the purpose of the Carpenters '

Award

persons performing

jo inery work

s o d e f i n e d a r e c l e a r l y

enough

persons making

jo inery work.

Persons performing

joinery

work i n a general

sense but not within the scope

tha t express ion

as defined

a re no t fo r t he pu rpose

of the Carpenters '

Award

wi th in the

conception of persons

making jo inery work.

They cannot

because the i r

work whatever it is is outs ide that defined

as jo inery work.

Accordingly, t o make the

provis ions

i n clause 3(1) operate

i n a

r a t i o n a l and

e f f e c t i v e way

appea r s t o be necessa ry to in t e rp re t

a s s a y i n g t h a t t h e

Leave Award a p p l i e s t o

employment

of persons

making jo inery

work

to the ex ten t t ha t t he Carpen te r s '

Award

opera tes In

r e l a t i o n	to work	which, according	t o it, is making	jo inery
work.

Having

r e g a r d t o t h e

somewhat

baf f l ing d i f fe rences

i n arrangement of

language

in the Carpen te r s '

Award

thoroughly satisfactory solution cf the current problem

appears to

be possible without

some

s t e p which i s open t o

j u s t i f i a b l e q u e s t i o n ,

and

which

may

n o t l e a d t o p r a c t i c a l

d i f f i c u l t i e s

i n pa r t i cu la r ca ses .

The

reasoning process

adopted above involves interpreting the

Leave

Award

sur render ing to the Carpenters '

Award

t h e f i n a l d e l i n e a t i o n

the a rea of

work

t o which

it is to app ly .

But

appears

t o me

t h a t t h i s

i s forcedupon the interpreter of the

Leave Award because of

the

terms of clause

3(1).

It i s

necessary to g ive weight to the ac tua l

words used,

and

what

they necessa r i ly

imply.

Thus

think it

d i f f i c u l t t o a d o p t

the not ion pressed

by Mr.

Evans.

It requi res one t o f ind

i n the Carpenters '

Award

an implicat ion

that shop f i t t e r s i n

t h e work

shop a r e t o be regarded

as employees no t makir?g

jo inery work.

It seems t o me

that this would not accord

with

t h e

view of the industry and

would

v io l ence to the

def in i t ion of

jo inery

work i n t h a t

award.

The

s i t u a t i o n

is d i f f e r e n t i n r e l a t i o n t o t h e

shop

l i t t e r s on

s i t e .

There

the def in i t ion of cons t ruc t ion

work

in te rvenes

and

provides

r eason fo r t r ea t ing those

shop

f i t t e r s as persons not

making Joinery work.

In t h e l i g h t

the foregoing the

c r i t i c a l q u e s t i o n

i s ,

t o what extent does the Carpenters'

Award

ope ra t e in r e spec t

employment

des igna ted there in

a s "making jo inery work1'?

I n my

opinion

the answer

must

t h a t it

o p e r a t e s i n r e l a t i o n

t o the

employment

persons performing joinery

work

d e f i n e d i n t h a t

award.

Accordingly a l l pe r sons inc lud ing

shop

f i t t e r s employed

i n performing joinery

work

o ther than

tha-r; performed on

s i t e a r e

within

the designated area.

A s t o t h e

shop

f i t t e r s working

s i t e ,

is c l e a r t h a t

so fa r a s t hey

perform joinery within par t (b) of the def ini t ions of joinery

work

they are not considered

by the Carpenters '

Award t o

making

jo inery work.

But what is t o be sa id of

them

jo inery

when	they are performing/within par t (a) of the def ini t ion?

It would be most

odd t h a t shop f i t t e r s on s i t e who

i n 9

substantial

ins ta l la t ion opera t ion a lmost of necess i ty

muqt perform a l l kinds of joinery

work should be considered as

making jo inery work s o f a r as they performed operations

within

p a r t ( a )

o f

t h e

d e f i n i t i o n

but

no t when

performing

operations

w i th in pa r t (b ) .

A s indicated above,

th ink the

answer

i s

t o be

found

i n t h e d e f i n i t i o n o f c o n s t r u c t i o n

work.

That

def in i t ion exc ludes jo inery

work

s i t e .

A t t h e

same

time

includes !'all shop f i t t i n g work on sitell.

Accordingly,

i s t o be

i n f e r r e d t h a t t h e

award

r e g a r d s a l l

shop

f i t t i n g work

s i t e as something other

than

joinery.

In my opinion it is

prope r to in t e rp re t t he Carpen te r s '

Award

expressing the

i n t e n t i o n t h a t t h e

work

shop

f i t t e r s on s i t e

is t o be

regarded for the purposes of the

award

a s work

o u t s i d e t h a t

regarded as jo inery work.

I n o t h e r

words a shop f i t t e r on

site, whatever work he i s performing i s performing

cons t ruc t ion work,

and, more important ly , is not performing

o r

making jo inery work.

It is regarded as work o ther than jo inery

work,

a l b e i t , o f c o u r s e t h a t

it is work

t o which t h e award

operates .

a p p a r e n t t h a t d i f f i c u l t q u e s t i o n s

may

a r i s e

the appl ica t ion of the

Leave

Award

i n c a s e s

where an

employee shop

f l t t e r h a s performed

dut ies dur ing the

term of

his

engagement p a r t l y i n t h e

workshop

and p a r t l y

' ,

on s i t e .

Such

problems

will have t o be

resolved

decis ions

o f f a c t , i n

some

cases of

a d i f f i c u l t n a t u r e ,

but ;f

a kind

which

a r e n o t

uncommon

i n the administration of Acts of

Parliament and

otherwise.

The

ques t ion in each case

would

be whether

fo r t he r e l evan t pe r iods the

employee

has served

t h e

employer under an unbroken contract of

employment

carpenter and

j o i n e r making

jo inery work

de f ined in the

Carpenters '

Award.

C l e a r l y t h e f a c t

t h a t

some of

such

work during that per iod was performed on s i t e and n o t i n

t h e workshop would

not occasion

a negat ive answer to that

question.

Beyond that it is not des i rab le

to speak

i n

these reasons.

to be observed however, that si tuations

similar

d i f f i c u l t y would

a r i s e i f

work

performed by shop

f i t t e r s

were

excluded

from

the

operation

the

Leave Award.

A t

t h e l e a s t t h e r e

'would

be the problem of the

employee

who

performed some jo inery work of a general nature

and some

shop	f i t t i n g .

Accordingly,

it i s my

opin ion tha t c lause

3(1)

t h e

Leave

Award

should

i n t e r p r e t e d t o t a k e e f f e c t

t h a t

the expression " the

employment

o f

carpenters and Joiners

making

jo inery

workf1 appearing therein includes the

employment

of employee carpenters and joiners engaged

i n

jo inery

work

d e f i n e d i n p a r t s

(a )

and

(b) of the def in i t ion thereof

contained i n the Carpenters '

Award

as shop f i t t e r s , i n each

case otherwise than on site.

----.-_

i I c e r t i f y that t-the

precedmg pages a r e a t r u e copy of the Reasons f o r 7udg;m.-nt h e r e m o f bls Bonos

Xr.	JusLice s,/fitzg

[1978] FCA 65

10 Aug 1978