Saunders, P.R. v Park Homes Pty Ltd

[1988] FCA 438

JUDGMENT

I '

CATCXKORDS

Industrial aw - award - breach - whether making

transportable homes in factory "construction work" as defined

-

- whether work "in connection with the erection. ..... or

buildings or structures" - whether implied exclusion	by
express inclusicn of "thz prefabricating of a bllilding in	an
open yard" - factors in mitigation of	penalty.

I

i

i

IN THE rFE2JERA.L COURT OF AUSTRALIA 1

1

TASMANIA	D STRICT	REGISTRY	)	No. Ti 3 of 1988
1

DIV SION INDUSTRIAL 1

PETER ROBERT SAUNDERS Applicant

-and-

PARK noms PTY. LTD. Respondent

MINUTES OF ORDE2

THE COURT ORDmS THAT:

1. The respondent pay a penalty in the sum of $25.00 in

respect of breaches of the terms of the National

Buildino Trades Construction Award 1975 in failing to pay to Anthony Paul Lucas the amounts which it was

obliged to pay to him under that Award in respect of the

weeks ended 19th November 1986, 11th February	1987 and
13th lyay 1987-

1.

2 .    The respondent pay the penalty into the Consolidated Revenue Fund.

(m:  Settlement and entry of orders is dealt with in 0.36

of the Federal Court Rules.)

.

l
t '

i

. .	i I.
8 .
I..

No. TI 3 of 1988

?TT2 ROSEXT SdUfiEE2S Applic2nt

-and-

?X?K H@I%S ?TT. LTD. Respondent

The crucial question in this proceeding is whccher

xork performed by an employee of the respondent durinr; tiie !

relevant periods fell within tha tscias of t h e >rational r !

Buildinc Tradss Construction A.dard 1925 ( " ths dward" 1 . Tce

proceeding cakes the f o r n of an application puzsuanr: ts 5-11?

of the Ccnciliation and ArSitra:isn Act 1904 ( " t h e BC-,"), for	the imposition of a penalty f o r alleged Sreaches of tha
Award. nsre is no dispLte &cut the i x t s , only akcut the characterization of the particular work.

The applicant is an inspectar, appointed pursuant

to s.125(2) of the Act. He therefore fzlls within the

definition of "inspector" in s.Q(1) of the act, and is

empowered by s.l19(2)(aa) to sue for an6 recover a penalty for breach of a tern of an award. The respondent is a

company, incorporated in Tasmania. At the rt1evm.t tines, it

was a meder of the Vicsorian Enployers Fedzration. which is

named in the schedule of respondents to the Award. S7 victue of c1.7(b) of the Award, the Award is binding on the

Victorian. Employers Federation, as an orqanization of

employers listed in that schedule. 9g virtue of s.51(f) of

the Act, the k.ard binds the respondent as a ne.C-er OF such

an organization. It so binds in respect of employees,

Gjhether they were members of organizations r2g:sttred under the Act o-r not.

Three peciods are specir'iec! in :he stskasen', of

claim which was filed with t'ne application as being the periods in respecr: of which the csspcndent is ir. brezch of

the award. Those are the weeks ended 19th N C T J ~ ~ ~ C 1986,

11th Fehruary 1987 and 13ch Play 1987. During a period whic:?

I	included each of those	weeks,	tht	respondmt employed one	, '
I.

F-nthony Paul Lucas, who ad prsvisusly served an

apprenticeship with another employer, and had become s

qualified carpenter. In respect of those weeks, the

respondent paid Mr. Lucas $307.68, $307.58 and $317.58.	If
the Award Gas applicljle, the respondenz was obliged	to pa-r
Mr. Lucas $370.88 in respect	of each of ths weeks.

:

I

It is necessary to set out certain provisions of

the Award. These are as follows:

I	I, r
0 . - SCOPE

"1. Subject exc p ions th to and

modifications contained in this award, this
award applies to the enploymenc of psrsons

engageC m construction work (as defined! of

the classificatlons contained	in this award.
Provided that this avard	skali not apply to
the following:

(a) tht	making	of impiements Of
agriculture
( 5 )	the work of ship carpenters or	ship

joiners or of seagoing carpenters on

articles

-.....

8 - DEFiXiTIOXS

.....

5. "Carpenter and Joiner" meam ET. expioyse

employed as a carsenter and/or joir.er upon

. L & .

shcp fiLdng work or construction work	as
defined in thiz clause. Wichout limiting =he

generality of the fortgoing, the work of

Carpenters may include:

work in con ection wi ',h

prefabricated units;

the narking out, lininp, plc?z'.izg

and. levellinc; of stesl Zcrmwork and

supports thereto;

the stripping of steel forzwork

shutzers or S o x i ~ g ;

c	h e erection of czrtain walling and
the fisir.9 of external wall cla2ding; elsewhert than in South Australia (subject to sujclause t ? - L l . l ) and
Victoria ( s d ject o paragraph
8.5(g)), the ertrtion of suspended
ceilings except where wst plaster is
used; the erection of metal windows or doors;
in Victoria, the erection f
suspended ceilings including the

I ?

a . I .

- <

suspensions therzof; provided' thac where ceiling finish is to be hard

[wet) plaster, f ib rous plaster

sheets or tiles, g p u m board o r

other material havng a plaster content, t:?e Gork of carpenters in Victoria shall not extend to such ceiling finish, or the batt;en, lath,

track or channel to which the finish	8 -
is to be attached;	! '

(h) tke mznufacture, installacion,

altsration and/or repair Of

shogfronts, showcases, exhibitors'

stands, and interior fittings and

fixtures in of on buildings, and the

erection or installatzon of

partitions i cluding partitions

i

involving wrap-around glazing and

the arec:ion o r installation of

parsitions including the insertinn

of glass panels whart che glass is

5.35mm or lsss in thickness by beads'

o r rnoul&s or other dry glazing

mechcds ;

provided thaa.:  !

(i)   the drawing or sha?ing of mezal

is not requirsd in res?ect of

paragrsphs ( d ) , (e), !f, and

(g! hereof; and

iii) cothing in this dsfinition

shall be construed as giving a

carpenter a.? txclusive right to

specified work tke in

paragra2hs (c), (d), ( e ) and

(f) hereof.

...-.. ! , I .

10. "Construction work" means all xork

performed under this award in cotxsction with

tht erection, repair, renovation, naincenance,

ornamentation o r damolition of hildings o r

structurss, including the making, assenbling

or fixing of c;oodGork a ~ d fittizgs in

L

conneccion therssith, ~ h ? maki~g, prsparir.3,

asserr3ling and fixing of acy eakerial nacessitating the use of tradesaen's tools o r

machines including all work performed by

stonenasonrp classifications (provided	t'nat in
the Sta tes	of South Australia, Victoria and

Western Australia work in stonemasonry yards

snd/cr shops and in cemeteries shall r.ct be

regarded as ccnstruccion work) and the

prefa3ricating of a building in	an open yard.
--....	.

P - 2 respondent occupies prsmises, described as

Seing at Warraze or Mornington in Tasmacia. Tcs premises

consist of two large sheds. Ir.sicl= these sheds, the

respondent manufacturss and Tics out what one of its

i

directcrs, Anthony Bennecr Park, describss as transpcrtable i

homes. l?wse homes have external cladding of aluninium,

internal panelling of plywood, m d polystyrene sandwiched

betwesn the cladding and che panellixg in the walls. Each

has jn aluminium roof. There is a lso a chipboard floor, on a

frame or chassis of galvanised metal. m e sizes of the homes vary, but each is incapable of registration as a trailer under Tasmaniar. law, by reason of excsssive wfdt:? alcns, or

excessive length anc! widl-h.

The chassis of each home has, as an integrsl part

of it, metal zunners. To there TUIIP.E~S, it is possi51e to

bolt an aslt with wheels. There can	a l s o bs bslted to	one
end of the chassis a	draw bar, and to the ot3.e.r end a	board

equippzd sith rear lights, indicator lights and braks lights.

,

&th these attachments, the home can be tcwed, although it

t
I.

remains incapablt of permanent reglstraticn. B permit oc permits must be obtained for the short term for which towing is required, and trade platas or marks are used instead OF

normal registration plates. The respondent owrs six sets of

axles with wheels, draw bars and light boards. '&en a

tcansportsSle home is bought, the purchaser usually requests

the respondent o deliver it to a particular site.

Approximately one quarter of transporta3le homes soid arz

towed by means of the axle, draw bar ani! lighz board. .&er?

the transporta3le home arrives at the intends6 site, these

iterns arz ramoved ar.d retained by th?e respondent. One

customer only has purchased txo	szts of wkeels, draw bars and
lig-ht boards, Secause it wishes to be	ab12 to tow a sizeaSle

fleet of transporta3le homes from place to place in the

future. The remaining t'nree quarters of transporta5:e	homas
sold are delivered by means of i? large trailsr. Mr.	Dark's

evidence was that this trailer is primarily necessary because

bad roads nake it difficult	o r impossible to tow the homes cn
attache6 axlss and whesls	to many places. TIe rtspondenc
does offer purchasers	of its trazsportable homes a relocation

service, should they desire to move the homes from tineir

original sites. So far, only about one tenth of hcmes

manufactured by th? rzspondent have been relocattd by it.

In most cases, t h e transpor5able homes are sited cn

an apparently perrnanent basis in caravan p ~ r k s . Vnder

L -

Tasmanian legislaclon, they can be so sited without t h e

necessity to comply with ncrmal building regulations. Some

are locaced on private land, under temporary permits,

renewable from year to year. Transportable homes

j

I .

manufacturcd during the relevant periods did not ccinply wit^

normal building regulacions, so could not be locatad

pernanentl? as, for instance, "granny flats".

m e tansportable homes are complets with interior

fitttngs. Sone have bathroom facilities, and some kitc'nens.

rfien they are delivered, licensed persons must connect

electric power and plumbing, including downpipes. The work

done by Mr.	Lucas during tine	relevant peciods consisted of
making and installing within transportakle	homes	kitchen

units and archltraves. FOE this work, he used che skills and

tools of a carpenter. All the work was carried out inside

the sheds at the raspondent's presises.

m ne respxdtnc beS.zn manufactucing transportable

homes in 1086. It has common directors wick a company nzmed

Suburban Rent-B-Truck and Caravsn Sales 2 c y . Ltd., whick

trades under the name Carsvs2 City.	For some years, tha'l
company has sold cacavacs, including those too	large f o r
norral registration under Tzsmanian law.	Those caravans have

manufactured by several compacies. From ajout 1977, the cosc been brought from ocher States of Auscralia, whsre they are !

of transporting newly manufactured caravans CO Tssxania

i '

becare so great that fsw or none were so transported. ' I3e

business of Cacavan City became concerned Primarily. with

selling	used	caravans.	Demand	existed,	howevsr,	for
transportable	homes.	After	eceiving	advice	.from	th?

nanufacturers of Jayco prcducts in Victoria, and jringing	t o
Tasmania a Jayco transportable home, the	dirxtors formed tine

respondent to manufacture trans2orta3le homes.

Scme tine was spent in evide2ca ancl in armeEt

over tke question whether the respondent's t,car?sport&1=

homfs should be classified as csrav~~s, o r as vehicles. In

his evider.ce, Mr. Park relied on the methocl cf construction

of the transportable homes, which is very similar to the

method of construction of what wauld. nornally be regardel as caravans, namely vehicles equippec! to accommodats persons,

having wheels, towing apparatus ar.d apprapriata lights

affixed to them. He also emphasis& t k e presexe of thl

metal runnsrs as an integral part of the c:?assis of each

trar.sporta3le home, which rcnners ar2 included for the

purpose of enabling wheels and other items to be atcachecl for	j
I
towing. Refarence vas nade tc the definition of "ve2icIs" in
the Traffic Act 1925	(Tas.) which "includes any 2escripcion

of vehicle designed to 310172 o r to 5e noved on one or more wheels", and to ths definition of "car+vax" in the Tourisn

(Caravan Parks) Determination 1973 (S.R. 1973 No. 247)

(Tas.), which lncludes an "other convzyance used for human
hAitatio3 and capa5le of being towed". Further, some

reference was made to awards of che Australian Conciliation

and ArSitrstion Commission rllating to the vehicle ixdustry,

and to the possibility that one such award might apply in its

own terms to the work performed by Mr. Lucas for the

respondent.

-.

These considerations do not, however, address the
question befor; the Court. The Court's task is to deternine

whether the work tEe shject of the proceeding fzlls withir.

the terns of t2r.e Axacd. At the heart of this question is

whether such work was perforzed "in connection with the

erection ...	of buildings or structures", within the definition
of "construction work" in the Award.	In detsrrnining whether
a transportable home answers the desckiption of	a "building"

-.

oc a "structure" wich~n that derxition, the question xhether

it aflswecs %e description of a "ca~zvan" or a "vehicle" is of little, if any, assiszance. This is parzicularly ss %her? the definitions of "csravan" and "vekicle" are legislazive

definitions, of an inclusive nature, which na:~ 3r inzeneee :o

L.

catch items r.ot n=cassarfljr covert:! in L x ordinar? meznings

of those xpressions. =.er-. is considerable danger in

construing an ArSitration Commission which is applica5le in all States of amrd of thz Autralian Conciliation and

i

Australia by reference to the effect of	tks lsgislation of	l.,
l
3ne of those States.	Tne award will	not necessarily have

Seen made with the legislarlon o f any particular State in

mind - A construction taking account of o ~ e State's

legislation may lead to difficulty xhen	t:ht	constr2ct:cn
canes to 5s applied ir. a n o t k r State.	Fixlly,	the
possibility that particular	work may fall within	the term of

another federal award is not dererminative of the

construction of the award. It would be wrong to assune that

- -I

I

I' ' I ..

:	c
I

10.   !

the Australian Conciliation and Arbitration Commission makes

,

awards in some monolithic and systematic fashion, so that all

I>

awards fit neatly together like tke pieces of a jigsaw

I

puzzls . Because awzrds a r e nade in settlement of industrial

disputes, 2nd Secause	tn~loyers and employer organizations
m a y be parriss to more chan one award,	overkp m2y OCC'I~ frcn

tine to tine. Nksn such overlap is dlscovered, cke question of the desirability of the application of one or more of the oveclapping awards is one tG be raised with the Cornmission,

not one to be dealt with by the Court.

The question which confronzs the Court in this

case, therefore, is 0p.e of construction of the Award.. 'Eis

is by no means an easy task, because of ssme expressions used

in tha Awzrd. It will Se noted that, by virtue of cl. 6, the

Award a~plies to the employment of persons enga3sd cn

construction worX 2 s riefined. Ths dsfinition OF

"construction work" includss the phrase "all work perforaed under this awar?.". "his nay lead to some circularity betxeen

the definitisn 2nd cl. 5, uzless the vizw is taken that tEaz

phrase ir. the	definition is in:er.ded	tc	encompss m y
references to specific kinds	of	work	which map be found

elszwhere in ths Award. Such a specific reference does cccuc

in the definition of "Carpenter and Joi?er", where "shop

fitting work" is mentioned.

I '

i

I

I .

It will be noted that the definition of

"conscruction work" is of a "means.. .and includes.. . ' I type.

The pro?er aspfcach to such a definition is	to dorermine the
orc',im.ry and natural meaning	of che words whizh. it is said,

the xpression concerned "means". 2nd to regzcd the

inclusions as extending that ordinary and natural meaning.

In some cages, an	=:<?ress inclusion may give rx;3 to an
inplied exclusion of something which might	ozherwise have

:

- F='len -- within tke "ae2ns" ?arc of the definirioc. sze !.

general17 Fave1lz Y c r ~ Ltd.	V.	!'!Err27	(1376) 1 3 3	C.5.R.
580.

The staning of the word "building", xhen used 3 s ;i

noun, depends upon the concext in which it appecfs. In some

English cases, some unusual structures have been held to fall

within it,. Sse avlwafd v. Xatthrws C19057 1 K.B. 343 ,

i Kniuht V. Dernclicion and Construction Co. Ltd. Cl9531 l

W.L.R. 981, Elms v. Foster 'Nheeler Ltd. Cl9547 1 X.L.R. i ,.

1071 and 2e St. Luke's. Chelse? C19757 Fas. 235. In

contrast, in R. v. Ailliams: Ex ? l r i e Australizn Suildinq

Construction Emplovees' and Builders Labourzrs' Federation

(1987) 153 C.L.R. 402, the majority of che %igh C x r t took

L-	,-.c= vipv t h t various steel structures of a peraanezt nazura
wer2 not "buildings". F. sirnilzr view wzs ta!=i=n by this Court in Australian Suildinu Construction Em?lovees' and Builders Labourers' Fedzration v. Dillinuham Australia Ltd. (1987,)

I

i

58 F.L.4. 170. In that case, at 2- 175, there appears a

useful statement as to the ordinary meaning of tine word

"building". Sheppard J. said ' I . . .5ecause "building" in

norms1 usage connotes	a structure with doors and a	roof
designed to house people, animals, plant	or	machinery."

Reference night also be made to what seems to be S. wide

definition of "building" in the Macquarie Dictionary,

"anything built or constructed".

The respondent's transportable homes are clearly

built or constructed. Further, each has doors and roof and

is designed to house people. Bur; f o r the faccor of

moveability, the transportable homes would appear to fall

within an7 ordinary meanhg of the word "bulldings" whici? is

adopted. Ea%	if this we-re noc so, the transportaSle homes
must be regarded	as "structures" unless their movea3ility

takes them outside the ordinary meaning	of this word.	It is
difficult to	see why	moveability skculd exclude something

from being a "building" or a "structure". 1ri.n~ such a5

portable classrooms or temporary office or asenities

facilities on construccion sites, which are designed to be ,

moved after disconnection of elecsricizy and plumbing, muld

ordinarily be regarded as buildings. S U C ~ items are vzry

similar in nature to the transportabls homts the s~~&jsc t - , of

this proceeding. Some indication of an inlisntion ts csver

moveable structures in the Award is found in the exclusions

which I have quoted in c1.6. Unless moveable structures are

I

i :.

I	. .
otherwise covered by the Award, it would not be necessarr to
exclude the making of implements of agriculkure, or work on
ships. It is true that Care must be taken in relying on

c

exclusions of this kind. Often they b r o inserted in awards

out of an abundance of caution, to protect work done by

mem5ers of enployee organizations not parties to the a~ard.

In the present case,	I	do not rely s?on the exclusions to a
high degroe.	In ay view, the Awazd	in its ordinary terms

applies to buildings and structures of a mov2abla kind, in the saae way in vhich it applies to Suildings and srructures

of a fixed. kind. The work performed	by	Hr. Lucas for the
respondenc therefore appears	to have been work	"in connection

with the erection...of buildings c)r structures", wlthin the

me-ning of the definition	of "conszruckon work" in	the
Award.

It was argue6 on be3alf of the respondent that th;

specific reference in	the	definition of "construction work"
to "the prefabricating	of a building in	all open yard"
disclosed an intention	to excluds any prefabricating other	l
!.

than that of a bui1dir.g in an open yard. ic was argued that,

if tht transportajle homes are juildings, they were being

FrefiLSricated under a roof, and noc in an open yard, and could not thsrefore fall within tke 5eZinicion of "construction xork".

I

l !	14.
i

Reliance on che specific inclusion of one item as

disclosing an intention CO exclude sinilar items	not
mentioned expressly is a	useful device for asesrtsining the

intention of the maker of an inscrument. It is not, however,

a device which must 5e applied in all cases. In ?articular,

it should not be apslieci where to do so xould be to fly in

the face of indicstions t3 tho contrary.

In 22 9uilders Labourers !Csnstruction on Site)

1962 (1065) 6 F.L.R. 498, the Coxmonweslth Industrial

Court held that the pref&rication	in a factory cf COOCES~P
s l d s , which were aftsrwards us&	as parts of apzrtmer.t

buildings, fzll within the ordinary and naturd neaning of tht expresston "construcrion work" , an z q r e s a i o n wkic?~ wzs

not defined in the award there considered.	meat decision wzs
given sons consicrer&le	t n e btfore the making of the Award
now mder consideration. If it had been	the incantcon of the
maker of the AGsrd to exclude prefairication	in a factory, it

is much more likely that this ~ouli have been accomplished Sy

an ex2rsss exclusion, rather thsn	ap. ex2rz;ss inclusion of
prefabricating in an open yard. Further, it is to 3e	noted

that the express xclusion is of prefabricating of a building, and not prefabricacing of a struclure. It is hardly to be isagized that the maker of the sward so~qht t o

exclude the prefabrication of structures which =ere nct

buildings, if .. that prefa3rication took pl2ct in an open yard.

l

i I

1	:	IS.
i

The inclusion of tine prefajricating of a building in an	oper.
yard is only one of several inclusionary provisions in	the

definition. There is the earlier esprsss inclusion of "the

making, assenbling or fixfng of woodwork acd fittings in

conneccion therewith", i.e. in conneccion wit3 the erscticn

of buildings or structures.	m e making of	woodaork and
fitrings may well taks place away from the actual	s5ts	on
wkic5 a	building o r structure is being ertcte.', aid may	well

take place in a factory. It is difficult to imagine thac,

with such an express inclusion, t3e 3ubsequenc inclusion	of
prefabrication of a building in an open yard is designed	tc
e:fclude the making	of woodwork and firtings whic3 does not

-

occur in an open yard. Siailarly the express inclusion	or
"the making, preparing, assembling and fixing	3f any materisl
necessitsting the uss	of tradssmen's tools o r machines" is an
inclusion of	work which may be psrformed in factories or

workshops. It is inconsi~tenc aith an implie2 exclusion SI

I

such work ocher than in an open yard. !l3e express exclusion,

in the words in brackets, of "work in sconesasonr7 yards

and/or shops" in certain Sta" lS is alzo inconsistenr with an

ot-srall implied exclusion of 211 vock ozhs,' thar. on site o r

in open yards. hiat it	makes clear is chat, in those Scates
not mentioned, work in	stonemasonry shops is covered By c5e
award. For these	reasons, I a.n of the view t5at che

inclusionary words in	t h e	definition of "construction work"
are there by reason	of caution, rather than	by reason of m y
intent to narrow whac would otherwiss	be	che ordinary and

natural meaning of the words "erection...of buildings	O r
structures".

There is anot2er, ar-d sixsler, answer to the

argument that the performance of Mr. Lucas's work indoors

took it outside the Award. The answer is that what Mr. Lucas

was doing was not "prefa3ricating". azd would therefore not

be excluded implieclly from the operatios of the Award, sven

if pref25ricating other than in ar. o?er. yard wers so

excluded. The relevant mea9in g of "prefabricace" is found ,

in the Macquarie Diccionarg as, "to manufacture (houses,

etc.) in standardise? parr-5 or sactions ready for r3pi6

assenblg and erection". The work of the respcn&nt did not

involve the making of parts or sections f o r assembly c r

erection elsewkert, hut involved nanufacture of con?lete

transporta5le homes, w35sh could then be moved to thair

appropriate sices. It is nore appropclately dascrihd as

"erecting" than as "prefabricating".

Some discussion occurred in argunent as to the

effect of the definition of "Car2enLser and joiner" in cl. 3

of the Award. It was natural tsar- the ex2ress reftrence ts

i.-,

"work in connection with prefa3ricatsd gnits" would raise the	r
issue whether suck work, takizg place otherwise than in an open yard, woul5 fall within the operation of EIS Awar5.
This defir.ition	is somewhat confusing because che letter56

paragraphs, which mi,-ht have besn CIoughc in some cases ts

extend the meaning of the opening words, are prefaced with

the phrase "without limiting the generality of the

I I

1   1

I	1 7 .
i	-

foregoing". It must be renenbered, however, that the

definition of "Carpenter azd Joiner" makes specific reference

to "shop fittlng wock". Searing this in mind. it is easier

to un<erstand %e near,ings of s5iile of chs lec',ere.i

paragraphs. In my view, t2ey do not nperatt CO narrDw the

definition of "construction work" .

On Se2slf of the rsspondent, it was argued that

some provisions of the Award wece appcopriats, or m o ~

appropriace, f o r the performance of vork in wkaz miqht 3,

called on-sltt construction. Reference	was made t o	c1.9.5,
under which	a special allowance	is paid to compensact persons

for, among other things, excess travelling zime, cl. 9. 3, r

under which sict allowances mey be awarded, cl. 9 .7 , c+<->

prsvides for a loading t o comle?.sate f o r period2 sf

unemployment ?etaeon jobs, cl. 19.1, 1ur.der which L? induszq J

allowzzce is paid t o csmpezsate f o r disdilities which mostly arise from exterzai work on construction sicas, cl. 17, unckr which a nulti-scorey allCw2nCe is ?aid, cl. 15, URdec whicF various allcrwances ars p a i d for tcavelling, cl. 72, sealing

wlth inclsment weather, cl. 2 4 , under which provision is male

for living a ~ a y f r o m hcrme, cl. 37 xhit:? pcovides f3r paymer.t

for prese3ting f ~ r wcrk but not, being require<, ar.d cl. 38

which prcwides for terninaficn of eqploynent on one dalr's

notice. Tce	przsence of	t h t s e clauses does	show that the
Award is apt to cover on-site construction	work.	I,	is

another 3tep to say that t i e Avzrd is limited to such wcrk,

..

-. . -

t

_ .

and is inc3pale of applying to work of the kind performed by

Er. Lucas. A similar argument was rejected in 2e guilders

LaSourers !Construction On Sicz) PmarC: (1965) 6 F.L.P..	498,
at pp. 501-502.

For these reasons, I 2m of the visw Lh=- .---- L- .A=. WO=!<

perforaed 3y Xr. Lucss for t2e respondant duricg the relsvaac

periods was work "in connection with the erection ... of

buildings o r structures, inclcldin3 the makic.;, asse.mbling o r

" ,'

fixing of woodwork and fittings in connection therewith"	and
was therefxe "construction work" within the meaning	of -the

Award. By virtue of cl. 6 , the Award applied 50 the

employment of Mr. Lucas. The respondenr: was obliged tc pa;i

Mr. Lucas the wage rate and other allowances	s e t out in	the
Award.	It is common ground that these were not, paid	in fzll.
Tke respondent was therefore in breach of	the terms of	the
Award.

TXe question of penalty then arises. It W25

concedx! on behalf of the q?plicsnt thar;, altkocgh nultipla

kreaches are alleged, they aross CUI; of a course of conduct,

within the msaning of s.119!11.) of the Act and are therefors

t o be treated 2 s canszitucing a sinq.ls Srrscl. 3y virtue of

s.llg(lD){a!(i), tLe maximm penalty which the C o u r t c%"

iapose is $1,000. In tle p r ~ s e r , c case, there ars sany

factors upon which the rsspondent can rely in mitfgation.

Not the least of these is the difficulty of construction of

!

I

ths Award. h3.en the respondent began its business of

manufacturing	transportable	homes, its	directors made
encpiries as	to the appropriate award.	Tnese	enquiries

included the seeking of advice f r o m an inspeccor appbinted

under the Act, ncc belng the applicant. As a rzsult of the

advice obts+ned, the directors believed that the work which

they Were engaging employees to do fell within ar. aGard

relating to the vesicle industry. In order to ensure that

the respondent was covered by that award, it joined	the
Victorian Employers Ftderation.	Ic is by virtue of that
ntenbership that the resi>ondent became bound Sy ths Acxijard	of

which it is in Sreach. In other words, the respondent's

directors have sndesvoured to do th?	right thing, buz have
unwittingly rendsrtd themsel-Jss liable	:o 227 t k i r explsy5es
mors t:?az the7 5ave	p-id. The ap2Lica~t did ~ z t 2 ~ ~ 5 s i o r a
htavy 2enalty. In	che circumstsnces, it is appr3priats to

impose	only a nominal	per.alty. The	approgriate	sum	is
$25.00.

Because the applicant is a gsvernment servant

should be exercised by ordering the pzyxenc of the penalty enforcing the Award, the discrezion under 5.120 of the Act into the Consolickted Reveme Fucd.

It is t3 be noi-ecl t b t Mr. Lucsz was not at any

relevant tine i! ae.nber of any organization r e 3 1 5 t e r e d

pursuant to the Bcc. For tinat reason, no order pursuant to

..

!

I

i	...
I
I	20
I I

s.119(3) of the Act, for the payment of any entitlements to

,	him, can be made. See Sevmour v. Stawell	Ti.n.5er	Industries
~

Ptv. Ltd. (1385) S F.C.R. 241, especially at. p p . 267-268 i~

!

the judgment of Gray Z., and the cases there r s f e r r e d to.

i
!
I
I

I	Amearances
i
I
i	Mr. G. Braefield for t5e applicznt inscrwtsc’, by the
!	i
i	Australian Govercrent Solicizor.
1
I	Hr. C. Cunningham for the respondent instructed 59 Simmons
i
I	Wolfhag-en.
!
I	Hearing Dato:  3rd August 1088. %ohart, Tasmania.
I

I hur&y cexify tbar- this and

the preceding ninetsen (13)

I

?ages a r e a t r u e and accurats

account of the Reasons for

Judgment of the	HonouraSle
Justice Gray.

i

! I :

r