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

[1978] FCA 65

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I n d u s t r i a l L m - 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

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I	Award - Conciliation	a d	Arbitration Act 1904 (S. 110)
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Re the Carpenters and Joiners (Long Service Leave) Award 1364

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

! In t e rp re t a t ion of s a i d t h e Award

V No. 12 of 1978

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l	Coram: Srnithers J.
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10 August 1978
Melbourne

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I N THE FEDERAL COURT OF AUSTRALIA )

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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 AN 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 ) of 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 as 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 and Joiners Award, 1962 as shop

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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 I V No. 12 of 1978

VICTORIA DISTRICT REGISTRY 1

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

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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 of 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 of

carpenters and Joiners making jo inery workll appeariilg i n

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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 by 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 of 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

I 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 by -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 ia l
Union of Aus t ra l ia ;
(b)	The Victor ian Chamber of Manufactures.11

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

clausc 3 (1) some words nob ac tua l ly forming par t o f the tex t

must be understood to be in se r t ed a f t e r t he expres s ion IIAppendix

' A ' It appearing therein. The content of what i s t o be understood is ,

of course, determined by the text as actual ly appearing i n the

clause as enacted. A s s o determined that content may be accura te ly

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

employmentt1.

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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 . . . I1

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 as carpenters and

j o i n e r s who a r e engaged as shop f i t t e r s p e r s o n s who may be

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? If 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.

It 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 be

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

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an unbroken contract of employment of ;O years aQd other

bene f i t s acc rue a f t e r 15 years unbroken service (clauss 5 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 of

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 of

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 to

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 I

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 it 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.

It is 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. It appears :

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( 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 as qua l i f i ed

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carpenters and joiners ;

(b ) t ha t he app ren t i cesh ip t r a in ing is general i n content ,

/ and that of apprent ices in tending to work i n

/ shop f i t t i n g does not di f fer f rom that of 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 be 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 o 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

I	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;

b

( 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 of 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 by 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

be 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 of

jo inery ;

(g) in 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;

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(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 by the technique of joinery.

It 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 of 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.

In this t a s k it 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 of

the Carpenters ' Award. And Mr. Evans on behalf of 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

of 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".

It 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
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, 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 of implements

of 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 by 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 3 of t h e Leave Award r e f e r s t o

as exceptions, exemptions and reservations prescribed by

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 of

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

U. . .an employee engaged upon cons t ruc t ion

work and upon work ordinarily performed

by 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 of metal is

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 be

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

in (d) , ( e ) and ( f ) hereof ."

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“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

i n 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 on s i t e .l1

“Joinery work11 i s de f ined in c l ause 2 as:-

(a) the assembling and/or cramping, and/or

glueing and/or dressing after assembling

of prepared ( i .e . dressed, mort iced o r

tenoned) pieces of 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

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It is t o be observed that:-

( a ) so fa r as employers engaging i n shop f i t t i n g were

concerned it 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

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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 of “ 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 a workshop not loca ted

on an !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 of I1construction worku1 extends t o

shop f i t t i n g work perforned on s i t e .

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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 of 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
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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 11 provides for an !!Industry

Allowancell of g1 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

on s i t e i n South Australiay1. Clause 12 provides that a

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) or shop

f i t t i n g workl l ,a t the rate of 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 of 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 be pa id

to ca rpen te r s engaged on 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, he i s a l s o t o be paid

fares and t ravel l ing t ime al lowances.

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I 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 do 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

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indeed a l l t h e work of joinery done by shop f i t t e r s . It

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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 is 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

I 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

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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

I jo inery work a r e two d i s t i n c t c l a s s e s of 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 of

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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 a 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 . It was said t h a t t h e n a t u r e of an employee's

employment was n o t t o be determined by reference to 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 by 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 as understood inthe

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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. It

is supported by the arrangement of.clause 3 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.

It is 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. It 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 5 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. In the language of clause 3 of 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 a

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) of t h e Leave

Awardto designate i n terms of subject matter i n an area

of 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 by

spec i fy ing that the boundaries thereof are those determined

by 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 . It

! 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 5 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 is 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

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r e l a t i o n t o whom the Carpenters Award operates.

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It 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 of 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 be

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 it

appea r s t o be necessa ry to in t e rp re t it 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 no

thoroughly satisfactory solution cf the current problem

appears to be possible without some s t e p which i s open t o

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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

as 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

of the a rea of work t o which it is to app ly . But it 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 I 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 do 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

a 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 of the foregoing the

I 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 of employment des igna ted there in .,

a s "making jo inery work1'? I n my opinion the answer must

be 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 of

persons performing joinery work as 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

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f i t t e r s working on s i t e , it 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

be 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

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i n 9 substantial ins ta l la t ion opera t ion a lmost of necess i ty

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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 8 ,

w i th in pa r t (b ) . A s indicated above, I 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 on s i t e . A t t h e same time it

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

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

on 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 as expressing the

i n t e n t i o n t h a t t h e work of 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 L

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 .

It is 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

on 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

' ,

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on s i t e . Such problems will have t o be resolved by decis ions t

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 as a

carpenter and j o i n e r making jo inery work as 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.

It is to be observed however, that si tuations of 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 of 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) of

t h e Leave Award should be i n t e r p r e t e d t o t a k e e f f e c t so 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

as 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. P

----.-_

l

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i I c e r t i f y that t-the /7

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

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