TasBuild Ltd v Ron Gee Enterprises Pty Ltd
[2023] TASSC 46
•23 November 2023
[2023] TASSC 46
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | TasBuild Ltd v Ron Gee Enterprises Pty Ltd [2023] TASSC 46 |
| PARTIES: | TASBUILD LTD |
| v | |
| RON GEE ENTERPRISES PTY LTD | |
| FILE NO: | 1857/2022 |
| DELIVERED ON: | 23 November 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 20 February 2023 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Industrial Law – Tasmania – Long service leave – Other matters – Whether employer engaged in a construction industry – Installation, repair and maintenance of fibreglass piping at zinc works – Whether "pipelines construction" or "plumbing".
Construction Industry (Long Service) Act 1997 (Tas), s 3.
Aust Dig Industrial Law [3403]
REPRESENTATION:
Counsel:
Appellant: A C R Spence SC, E Hickey Respondent: M Rinaldi
Solicitors:
Appellant: Page Seager Respondent: Ai Group Workplace Lawyers
| Judgment Number: | [2023] TASSC 46 |
| Number of paragraphs: | 47 |
Serial No 46/2023 File No 1857/2022
TASBUILD LTD v RON GEE ENTERPRISES PTY LTD
| REASONS FOR JUDGMENT | BLOW CJ 23 November 2023 |
1 Workers who spend years in the construction industry usually work for a great many employers. As a result, it used to be rare for any of them to stay with one employer long enough to become entitled to long service leave. The Tasmanian Parliament legislated in 1971 to set up a scheme whereby long service leave entitlements would accrue to workers in the construction industry as they moved from employer to employer. It legislated again in 1997 to set up a new scheme, enacting the Construction Industry (Long Service) Act 1997 ("the CILS Act"). That scheme is called the "new scheme".
2 This appeal concerns a dispute as to whether the employees of the respondent company, Ron Gee Enterprises Pty Ltd ("RGE"), are employed in the construction industry for the purposes of the new scheme. The appellant, TasBuild Ltd, administers the new scheme pursuant to the CILS Act. It applied to the Magistrates Court in October 2019 for orders declaring RGE to be an employer in the construction industry for the purposes of the CILS Act, and for orders requiring it to register its employees for the purpose of that Act and to deliver employer returns for them. On 29 June 2022 a magistrate, Mr R Webster, held that the employees were not employed in the construction industry for the purposes of the CILS Act, dismissed the application, and published written reasons. This is an appeal from his decision.
The new scheme
3 The relevant provisions of the CILS Act and my comments in relation to them are as follows:
• In s 3, the "new scheme" is defined as "the scheme established under the Trust Deed". • Also in s 3, "Trust Deed" is defined as meaning "the trust deed establishing the new scheme executed by… TasBuild Ltd on 19 June 1998, so long as that company is declared by the Minister under section 4 to be the company to administer the new scheme". • Section 4 empowers the Minister, by notice published in the Gazette, to declare a company to be the company that is to administer the new scheme. TasBuild has been declared to be that company under s 4, and that declaration remains in force. • Section 6 requires an "employer engaged in any construction industry covered by the new scheme" to "apply to the company for registration of each employee of the employer". Failure to do so constitutes an offence punishable by a fine. The company (ie TasBuild) is to register a person if, in its opinion, the person is eligible for registration: s 6(2). • Employers engaged in any construction industry covered by the new scheme have obligations to supply TasBuild with records, information and returns under s 8. • Under s 9(2) TasBuild may apply to the Magistrates Court for an order to enforce an obligation imposed under the Act. On the hearing of such an application, a magistrate may make orders as to the registration of an employer or employee; the keeping of, and access to, records relating to an employee; and any other matter that he or she considers necessary or desirable for the purposes of enforcing an obligation imposed under the Act: s 9(3). 4 The Trust Deed contains provisions to the following effect:
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• It establishes a fund called the "Construction Industry (Long Service) Fund", to be held by TasBuild and its successors. • It provides for the Fund to have rules, as set out in Schedule 2 of the Trust Deed. • Rule 1.1 of the rules contains definitions of "Construction Industry", "Construction Work", and "Employee". • The rules go on to make detailed provisions as to registration, contributions, entitlements, payments, and the provision of information. 5 The provisions in ss 5 and 6 of the CILS Act as to the registration of employers and employees are limited in their scope because they refer to employers and employees who are "engaged in any construction industry covered by the new scheme". Employers and employees are so engaged only if they are engaged in the "construction industry" as defined in rule 1.1 of Schedule 2 to the Trust Deed. That definition is narrower than the definition of "construction industry" in the CILS Act. It reads as follows:
"'Construction Industry' means:
(a) any industry in which any or all of the work described in Division E of the Standard Industrial Classification is performed; or (b) any industry in which any of the work described in the following classes of Division C of the Standard Industry [sic] Classification is performed which involves the construction and installation or fixing of goods, materials or products for use in or in connection with that industry: Class
2323 Wooden Structural Fitting & Component Manufacturing 2635 Concrete Product Manufacturing 2911 Prefabricated Metal Building Manufacturing 2919 Prefabricated Building Manufacturing n.e.c."
6 TasBuild contends that some employees of RGE engage in pipeline construction and/or the repair of pipelines, within the scope of Division E of the "Standard Industrial Classification", as well as plumbing and/or the repair of installed plumbing within the scope of Division E of that document. The learned magistrate held that was not the case.
7 In s 3 of the CILS Act, "Standard Industrial Classification" is defined to mean "the Australian and New Zealand Standard Industrial Classification issued by the Australian Bureau of Statistics in 1993 (ABS Catalogue No. 1292.0)". I will refer to it as "the ANZSIC". That document, as the definition would suggest, was not created as a legislative instrument. It was created by statisticians for the purpose of classifying businesses for statistical purposes. The introduction to the ANZSIC describes its purpose at [5] as follows:
"The objective when developing an industrial classification is to identify groupings of businesses which carry out similar economic activities. Subject to certain criteria being met, each such grouping defines an industry and the similar economic activities which characterise the business concerned are referred to as activities primary to that industry. When the classification is completed, any individual business can then be assigned an appropriate industry category on the basis of its predominant activities."
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8 Class 4122 of Division E of the ANZSIC is entitled "Non-Building Construction n.e.c." The abbreviation stands for "not elsewhere classified". The categories of work within Class 4122 are specified as follows:
"This class consists of units mainly engaged in the construction of railway permanent way, dams, irrigation systems, harbour or river works, water or gas supply systems, oil refineries (except buildings), pipelines or construction projects n.e.c. in the on-site assembly of boilers, furnaces or heavy electrical machinery from prefabricated components, or in the general repair of such structures, machinery or equipment.
Exclusions/References Units mainly engaged in
(a)
the installation of factory assembled commercial or industrial boilers are included in Class 2769 Fabricated Metal Product Mfg n.e.c.;
(b)
the erection or installation (including on-site fabrication) of metal silos, reservoirs or storage tanks are included in Class 4224, Structural Steel Erection Services;
(c)
the installation of hot water systems are included in Class 4231 Plumbing Services; and
(d)
providing special trade repair services, or in undertaking special trade construction of component parts for canals, dams etc.,e.g. In construction stone retaining walls only or in constructing or repairing fences only are generally included in the appropriate classes in Subdivision 42 Construction Trade Services.
Primary Activities
Boilers construction (on-site Lake construction assembly from prefabricated components)
Bowling greens construction Mine site construction n.e.c. Breakwaters construction Oil refineries construction (except buildings)
Cable laying Pile driving Canals construction Pipelines construction Dams construction Railway permanent way construction
Distribution lines, electricity or River works construction communication, construction Dredging (harbours or rivers) Sewage treatment plants construction
Electrical machinery, heavy Sewage or stormwater drainage installation (on-site assembly) systems construction Flood control systems construction Sports fields construction Furnaces, construction (for Swimming pools, below ground industrial plants from prefabricated concrete or fibreglass, construction components
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Golf courses construction Tunnels construction Harbour works construction Water tank construction (except of
(except buildings) structural steel)".
Irrigation systems construction [My emphasis.] Jetties construction
Kilns construction
9 Clearly the introductory paragraph in the passage quoted lists types of work within the class. It is followed by a list of exclusions. The list of "Primary Activities" is a list of activities within the class.
10 Class 4231 of Division E follows a similar pattern. It reads as follows:
"Plumbing Services
This class consists of units mainly engaged in plumbing or draining (except sewage or stormwater drains construction) or septic tank installation. Plumbing work arising from the installation of appliances is included in this class:
Exclusions/References Units mainly engaged in
(a)
the construction of sewage or stormwater drainage systems are included in Class 4122 Non-Building Construction n.e.c.
(b)
installation of fire sprinkler systems are included in Class 4232 Fire and Security System Services; and
(c)
installation of garden sprinkler and/or drainage systems are included in Class 4251 Landscaping Services:
Primary Activities
Drains construction, cleaning or Hot water systems installation repairing (except sewerage or stormwater drains)
Gas appliance repair Plumbing (except marine)
Gas plumbing Repair of installed plumbing
Guttering, roof, installation or Septic tank installation repair
Solar hot water". [My emphasis.]
11 TasBuild contends that some employees of RGE engage in the construction of pipelines or in the general repair thereof within the scope of Class 4122, and in plumbing, and the repair of installed plumbing, within the scope of Class 4231. RGE contends that that is not correct. The learned magistrate held that that was not correct.
The facts
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12 I was told that RGE is Australia's largest fibreglass manufacturer. The evidence before the learned magistrate as to the company's business was not in dispute. Its general manager, Mr O'Brien, provided affidavit evidence to the following effect.
13 RGE designs, manufactures, installs, maintains and repairs fibre reinforced plastic (FRP) products, including piping and related products, primarily for clients in the mining and chemical processing industries. One of those clients is Nyrstar, which operates a zinc works in Hobart. FRP is a form of composite material which is typically lightweight and corrosion resistant. It is widely used in tanks, pipes and process vessels for the chemical extraction of base and precious metals. Much of the company's manufacturing work takes place at its workshop in Penguin. At the time of the hearing it employed 35 employees in Penguin, 13 of whom were administrative employees. The non- administrative employees in Penguin manufacture FRP products, including pipe spools. Pipe spools are the prefabricated components of a piping system.
14 RGE also has a workshop in the Hobart suburb of Moonah. At the date of the hearing there were ten employees based there, two of whom were administrative employees. All of the remaining eight employees performed at least part of their work duties at the Moonah workshop, and all but two or three of them also performed work on a regular basis at the Nyrstar plant.
15 About 80% of the company's work at the Moonah workshop is performed for the Nyrstar plant. Of that portion of the company's work, approximately 65% is done on site at the Nyrstar plant and the remaining 35% is done at the Moonah workshop. RGE provided details of the breakdown of those figures to TasBuild as follows:
"SITE: 65% (of the 80% total work undertaken by RGE Hobart employees)
• Repairs to Process Vessels, Tanks/Cooling Towers (32%) • Repairs to Bund Liners (5%) • Repair and replacement of Fiberglass [sic] Process Pipelines (10%) • Afterhours Call in Service to carry out repairs to broken and damaged Process Equipment (5%) • Fitting of new Fibreglass Pipelines manufactured by RGE (10%) • Miscellaneous items such as training and supporting Tower Wash Systems etc (3%) RGE WORKSHOP: 35% (of the 80% total work undertaken by RGE Hobart employees)
• Manufacture urgently required parts for carrying out repair work (10%) • Spooling of pipes (20%) • Prepare materials and deliver to site (5%)".
16 RGE's Moonah branch manager, Mr Smith, gave evidence that the largest section of pipe manufactured by the company was 400mm in diameter. Under cross-examination he was asked the length of the longest run of pipes he could think of that had been installed or maintained by RGE at Nyrstar. He replied, "Probably 40 metres." He said that that might comprise four 10-metre spools or sections.
17 Mr Smith gave evidence to the effect that RGE workers at Nyrstar install and replace lengths of pipe, sometimes with elbows in them, with flanges at either end that are bolted into position. Those
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components are manufactured by the company at Penguin. The sections of pipe are known as spools. RGE employees install and repair them. Some are repaired at Nyrstar's premises and others are repaired at the Moonah workshop.
The learned magistrate's decision
18 In his written reasons the learned magistrate summarised at length the evidence, the relevant legislative provisions, the relevant provisions of the Trust Deed and its rules, the provisions of the ANZSIC, and the submissions of the parties. His reasons for rejecting the submissions of TasBuild as to pipelines and Class 4122 were set out at [66]-[68], where he said the following:
"[66] The online Macquarie Dictionary defines: (i) 'pipeline' as 'a pipe or several pipes together forming a conduit for the transportation of petroleum, petroleum products, natural gas etc.'; (ii) 'manufacture' as 'the making of goods or wares by manual labour or by machinery, especially on large scale'; and (iii) 'construction' as 'the act or art of constructing' or 'the way in
which a thing is constructed; structure' or 'that which is constructed; a
structure.'[67] Having regard to these definitions and Class 4122 my view is pipelines construction refers to the building or constructing of a pipeline for the transportation of petroleum, petroleum products or natural gas and the like. A ready example in this State is the pipeline which has been constructed to transport ore from the Savage River mine to Port Latta in North West Tasmania from where it is exported. Consistent with this view are the words within Class 4122 immediately preceding the word 'pipeline' namely 'construction of... irrigation systems.. water or gas supply systems, oil refineries ... '.
[68] The Macquarie Dictionary definition of the word 'construction' suggests that a 'pipeline' is for the purposes of Class 4122 a structure. Likewise a railway, a dam, a water or gas supply system and/or an oil refinery are all structures. I agree with the submissions of the respondent that these structures are the "end product" of the construction process and that is entirely different from 'manufacturing' or even the 'installation' of pipes, pipe fittings and the maintenance and repair of those pipes and components. In my view it cannot be said that pipes and pipe fittings are structures and/or pipelines."
19 In relation to the dictionary definition of "pipeline", the learned magistrate added a footnote as
follows:
"'Pipeline' is similarly defined in the Merriam-Webster online dictionary as 'a line of pipe with pumps, valves, and control devices for conveying liquids, gases, or finally divided solids.'"
20 The learned magistrate rejected TasBuild's submissions as to plumbing work and Class 4231 on the basis that the work done by RGE employees at Nyrstar could not be plumbing work because none of those employees were licensed plumbers. He said the following at [77]-[78]:
"[77] Class 4231 of Division E of ANZSIC is contained within Group 423 titled Installation Trade Services and within Subdivision 42 titled Construction Trade Services. Although not in evidence the respondent made submissions about the contents of Subdivision 42 of Class 4231 and the various groups within that class. In summary the submission was, when read as a whole, that subdivision covered building trade services which required persons undertaking these trades to be trade qualified. It is plain from a consideration of Class 4231 alone and the types of activities contemplated that submission is correct. For
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example you need to be a qualified gas fitter to perform gas plumbing work, a qualified roofer and/or roof plumber to install and/or repair guttering and roofing and a qualified plumber to install hot water systems, perform plumbing work and/or install septic tanks which are listed as some of the primary activities in this Class. I therefore agree with the respondent's submission.
[78] In that context then the evidence is the respondent does not provide plumbing services or engage in any form of plumbing as set out in Class 4231 and neither does it employ any plumbers. I therefore conclude the respondent is not engaged in plumbing services and accordingly its activities are not covered by Class 4231 of Division E of the ANZSIC."
Ground 1 (Pipelines)
21 There are two grounds of appeal. Ground 1 reads as follows:
"1 The learned magistrate erred in holding (at [74]) that the work performed by employees of the Respondent at the Nyrstar plant in Lutana, Hobart was not 'pipelines construction' as that phrase is meant within Class 4122 of the Australian and New Zealand Standard Industry [sic] Classification (1993) (ANZSIC), because:
(a) The learned magistrate erred in holding (at [67]) that 'pipelines construction' for the purpose of Class 4122 of the ANZSIC 'refers to the building or constructing of a pipeline for the transportation of petroleum, petroleum products or natural gas and the like'. (b) The learned magistrate erred in holding (at [68]) that a ' pipeline' for the purpose of Class 4122 of the ANZSIC must necessarily be a 'structure' which is the 'end process' of the construction process and which is entirely different from the 'installation' of pipes and the maintenance and repair of those pipes and components. (c) Further and in the alternative to ground 1(b), the learned magistrate erred in holding (at [68]) that 'it cannot be said that pipes and pipe fittings are structures and/or pipelines'."
22 I accept that the learned magistrate expressed too narrow a view in his reasons at [67] when he opined that "pipelines construction" referred to "a pipeline for the transportation of petroleum, petroleum products or natural gas and the like". (My emphasis.) The definition quoted by him from the Macquarie Dictionary ended with "etc" rather than "and the like", and thus did not confine the class of substances that might be transported through a pipeline. The reference in the dictionary definition to "petroleum, petroleum products, natural gas etc" should be treated as a series of examples, and not taken to suggest that a pipeline could not be something used to transport a substance radically different from liquid or gaseous fossil fuels. There is no reason why the word "pipeline" should not be applied to a series of pipes constructed for the transportation of any particular class of substances. Pipelines might be used to transport water, sewage, industrial products, acids, or other chemicals, to give a few examples.
23 In the second sentence of [67], the learned magistrate referred to the iron ore pipeline that runs from Savage River to Port Latta. That pipeline does not carry anything like petroleum, petroleum products or natural gas.
24 The question of whether something constitutes a pipeline should not be determined by reference to the contents of that thing. Rather, the question of whether a series of pipes constitutes a pipeline must depend on its length, its location, its source, and its destination. The best evidence as to the pipes at Nyrstar installed or maintained by RGE was that the longest run was probably 40 metres
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long, possibly comprising four 10-metre sections. In my view piping of that size within an industrial
complex does not fall within the ordinary meaning of the word "pipeline".25 The context in which the word "pipelines" appears in the first paragraph of Class 4122 supports this view. The class refers to "Non-Building Construction" not elsewhere classified. The opening paragraph says that the class consists of units, meaning businesses, "mainly engaged in the construction of railway permanent way, dams, irrigation systems, harbour or river works, water or gas supply systems, oil refineries (except buildings), pipelines or construction projects n.e.c. [not elsewhere classified] …". Having regard to the context, one could not say that something 40 metres long within an industrial complex is a pipeline for the purposes of Class 4122.
26 For these reasons, ground 1 must fail.
Ground 2 (Plumbing services)
27 Ground 2 reads as follows:
"The learned magistrate erred in holding (at [78]) that the work performed by employees of the Respondent at the Nyrstar plant in Lutana, Hobart was not 'plumbing' as that term is meant within Class 4231of the ANZSIC, because:
(a) the learned magistrate erred in holding (at [77]) that an employee must be 'trades qualified' in order to perform 'plumbing' for the purpose of Class 4231 of the ANZSIC.
28 Although this ground includes a sub-paragraph (a), there are no subsequent sub-paragraphs.
29 The word "plumbing" is not defined in the ANZSIC, the Act, the Trust Deed or its rules. However counsel for RGE referred me to some legislation relating to plumbing.
30 Under the Occupational Licensing Act 2005, there is a system of licensing that applies to plumbing businesses and plumbers in this State. A plumbing business may be granted a contractor's licence under s 34 of that Act. A plumber may be granted a practitioner's licence under s 37. Under s 21, it is an offence for a person to carry on business as a plumbing contractor without a contractor's licence. Under s 22, it is an offence to carry out plumbing work without a practitioner's licence. By virtue of s 7(1B) of the Act, the Act applies to plumbing work as described in Pt 3 of Sch 2 to the Act. Part 3 describes the plumbing work to which the Act applies as follows:
"Any work relating to installing, altering, maintaining or disconnecting a plumbing
installation, including work on the following systems:
(a) heating, ventilation and airconditioning (including heater, ventilation and
airconditioning systems);
(b) hydraulic;
(c) liquid fuel;
(d) medical gas, including vacuum;
(e) on-site waste water management (including on-site waste water management
systems and on-site liquid trade waste systems);
(f) pneumatic;
(g) refrigeration;
(h) reticulated, including steam;9 No 46/2023
(i) sanitary plumbing and drainage (including sanitary plumbing systems and sanitary
drainage systems);(j) stormwater drainage (including a roof gutter, roof valley, metal roof ridge, metal roof weathering, a roof downpipe and any flashing associated with any such gutter, valley, ridge, weathering or downpipe) and surface and subsurface drainage systems;
(k) systems utilising commercially available gases;
(l) water services (including cold water services, heated water services, non-drinking
water services and firefighting water services)."
31 None of the piping installed and maintained by RGE at Nyrstar falls within any of the sub- clauses (a)-(l) of that description. However it is a non-exhaustive description. Individuals need plumbing licences to work on the fibreglass pipes at Nyrstar if, but only if, they form part of a "plumbing installation" within the meaning of the opening words of the statutory description.
32 The term "plumbing installation" is not defined in that Act, but is defined in s 4 of the
Building Act 2016 as follows:
"plumbing installation includes –
(a) a system of water supply; and
(b) a system of sewage or sullage drainage or disposal; and
(c) a system of stormwater drainage, roof drainage or trade waste drainage; and(d) an on-site system, for the management or re-use of waste water, that is –
(i) a disposal or treatment system servicing one or more blocks; or
(ii) an on-site composting toilet or system; or(iii) an on-site incinerating toilet; and
(e) any other prescribed system."
33 It should be noted that this is also a non-exhaustive definition. Section 48(1) of the Building Act imposes obligations on licensed plumbers who perform plumbing work. In s 4(1), "licensed plumber" is defined to mean "the holder of a licence under the Occupational Licensing Act 2005 that authorises the holder of the licence to perform the plumbing work". In the same section, "plumbing work" is defined to include "any work relating to … installing, altering or maintaining a plumbing installation".
34 The learned magistrate rejected TasBuild's submissions in relation to the meaning of "plumbing services" because of the presence of the word "Trade" in the titles of Subdivision 42 and Group 423 of the ANZSIC. On the basis of those titles, and on the basis of the types of work included within that subdivision and that group, he reached a conclusion that the subdivision covered only "building trades services which required persons undertaking these trades to be trade qualified".
35 The learned magistrate did not give the terms "Plumbing" and "Repair of installed plumbing" in Class 4231 of Division E of the ANZSIC their ordinary literal meaning. He gave them a narrower meaning, treating them as referring only to work undertaken by plumbers who were trade qualified. However such an interpretation is inconsistent with the purpose of the ANZSIC. Its objective, as stated therein at [5] and quoted by me above at [7], is "to identify groupings of businesses which carry out similar economic activity". If a business uses unqualified workers or unlicensed workers, that makes no difference to the nature of the economic activities carried out by the business. The learned
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magistrate erred in his interpretation of the relevant words. He should have given them an ordinary, literal interpretation. Their interpretation should not be qualified in any way in relation to trade qualifications or licensing requirements.
36 The statutory definitions of "plumbing" and "plumbing installation" that I have referred to do not warrant giving narrow interpretations to the relevant terms. They are non-exhaustive definitions, and they come from statutes that are irrelevant to the interpretation of the ANZSIC.
37 The Macquarie Dictionary defines "plumbing" as "the system of pipes and other apparatus for conveying water, liquid wastes, etc, as in a building" and as "the work or trade of a plumber". Its primary definition of "plumber" is "someone who installs and repairs piping, fixtures, appliances and appurtenances in connection with the water supply, drainage systems, etc, both in and out of buildings".
38 The Oxford English Dictionary defines "plumbing" as "The pipes (originally of lead) fittings and other apparatus used for water supply, sanitation, etc, in a building."
39 Most pipes are not made of fibreglass. Most do not carry acids or other chemicals within industrial plants. However it is quite clear that the installation of fibreglass pipes by RGE's employees at Nyrstar constitutes "plumbing" within the ordinary meaning of that word. It follows that the repair of such pipes constitutes "Repair of installed plumbing" within the meaning of that term in Class 4231 of the ANZSIC. The learned magistrate erred in holding otherwise.
The Class 2564 argument
40 Counsel for RGE submitted that RGE was not engaged in work that was correctly characterised as work within the "construction industry" as defined in the Trust Deed. It was submitted that RGE engages in work covered by Class 2564 of Division C of the ANZSIC, namely "Plastic Product Rigid Fibre Reinforced, Manufacturing". That class consists of "units mainly engaged in manufacturing reinforced plastic articles (not being plastic composite flexible film or items covered elsewhere)". Its lists of primary activities includes "Fibreglass products mfg [manufacturing] n.e.c." and "tanks mfg (fibre reinforced plastic)".
41 Class 2564 may very well be the class within the ANZSIC that best describes the work undertaken by RGE. Assuming that to be so, it does not follow that, for the purposes of the Trust Deed, RGE is not engaged in any construction industry.
42 The classes within the ANZSIC are defined by reference to the work that business units are "mainly engaged in". By contrast, paragraph (a) of the definition of "Construction Industry" in the Trust Deed includes in that definition "any industry in which any or all of the work described in Division E of the Standard Industrial Classification is performed". For the purposes of the definition, it does not matter what area of work a business is mainly engaged in. If its work includes any sort of work described in Division E, then it is engaged in a construction industry for the purposes of the Trust Deed.
The "small proportion" situation
43 The Trust Deed makes provision for the situation where work to which its definition of "construction industry" applies constitutes only a small proportion of the total work engaged in by an employer. Under Rule 26.1(b), TasBuild as the trustee under the Trust Deed has a discretion to make a decision that a person is not an employer engaged in the construction industry. However the deed prescribes guidelines relating to the exercise of that discretion, and RGE falls well outside the parameters of the guidelines.
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44 Rule 26.1 reads as follows:
"The Trustee may determine
Subject to Rules 11 and 26.4, the Trustee may by Ordinary Resolution of its Directors make a decision:
(a) that any specified work is or is not Construction Work; (b) that a person is or is not an Employer engaged in the Construction Industry; In the exercise of this discretion, the following guidelines not rules shall
apply:
(i) Where an employer engages in relevant construction work on an irregular basis and such activity constitutes on average less than 10% of the total hours worked by all employees in the business, then subject to (ii) below, such employers shall not be required to join and contribute to the fund.
(ii) Notwithstanding (i) above, in circumstances where an employer engages employees to work exclusively or predominately in relevant employment, then such employees shale be registered with the fund and contributions made on their behalf. In this context 'predominately' shall mean more than 90% of the total hours worked by an employee. This guidelines shall apply notwithstanding that the predominate activity carried on by an employer is other than construction work. [Original italics.]
(c) that a person is or is not an Employee employed in the Construction Industry; or (d) otherwise concerning a person's obligations or entitlements under these Rules (including obligations or entitlements under these Rules arising by virtue of the Act)."
45 The evidence before the learned magistrate was that RGE had 47 employees, comprising 35 employees in Penguin and 12 in Moonah, and that 7 or 8 of the Moonah employees spent 80% of their time doing work for Nyrstar. The relevant work was not engaged in on an irregular basis, nor did it constitute on average less than 10% of the total hours worked by all employees of RGE. If 7 out of 47 employees spent 80% of their time doing the relevant work, then that represented about 11.9% of the total hours. But that did not include the manufacturing work undertaken for Nyrstar at Penguin or the associated administrative and managerial work. Thus RGE did not fall within the scope of guideline (i) above.
Conclusion
46 The appeal must succeed on the basis that some of the work undertaken by RGE employees amounted to plumbing and the repair of installed plumbing within the meaning of Class 4231 of Division E of the ANZSIC, and that therefore RGE was engaged in a construction industry covered by the new scheme for the purposes of the Trust Deed. It follows that RGE was obliged to register its employees under s 6 of the CILS Act and to deliver employer returns for them.
47 I therefore allow the appeal and set aside the order of the learned magistrate. I make a declaration that the respondent is an employer in the construction industry for the purposes of the Construction Industry (Long Service) Leave Act 1997. I will order that the respondent is to (a) register with TasBuild Ltd those of its employees who are engaged in the construction industry for the purpose of the Construction Industry (Long Service) Leave Act, and make and deliver to that company
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employer returns for those employees. I will hear counsel as to the time within which the respondent
must comply with this last order.
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