Employment law; what is the construction industry

There are many cases in Australian employment law which turn upon the industry in which an employee works. For example the relevant industry will often determine which if any modern award may apply to employment, and also the issue of the application of an enterprise agreement. These issues may impact of all manner of employment law situations including as an example unfair dismissal.

In the following extract from a recent decision of the Western Australian Industrial Relations Commission the issue to be determined was whether an employee’s employment fell within the construction industry. There has been much case law on this issue, as you will see.

“There is no dispute that the applicant was engaged in a classification of work in a prescribed industrial instrument and therefore the applicant was “substantively occupied” in this work: Quantum Blue Pty Ltd v The Construction Industry Long Service Leave Scheme [2019] WAIRC 00860; (2019) 100 WAIG 125 at par 28. However, as most recently discussed by the Full Bench of the Commission in Programmed Industrial Maintenance v Construction Industry Long Service Leave Payments Board [2020] WAIRC 00758, to enable the applicant to receive benefits under the Act, his employment must also meet the test of Monadelphous being an “employer” of the applicant. This requires consideration of whether the applicant was an employee “in the construction industry”. Given the evidence, that the work performed by the applicant for both Fluor and Monadelphous was the same, with the only difference being in the title of his position, it is only if the Commission concludes that the applicant was employed in the “construction industry” that consideration can be given to the applicant’s arguments in relation to his prior period of employment with Fluor. 25 For present purposes, “construction industry” is defined in s 3(1) of the Act as follows: construction industry means the industry — (a) of carrying out on a site the construction, erection, installation, reconstruction, re-erection, renovation, alteration, demolition or maintenance of or repairs to any of the following — … (ii) roads, railways, airfields or other works for the passage of persons, animals or vehicles; and … 2020 WAIRC 00791 26 It was not contended by the applicant that his employment with Monadelphous fell within any other part of the definition, other than that set out immediately above. The meaning of “construction industry” in s 3 of the Act was extensively considered by the Full Bench in Programmed Industrial Maintenance. It is necessary to focus on that part of the applicant’s work performed “on site”, as opposed to work performed at the workshop premises of Monadelphous’ client, Rio Tinto. This means work performed away from an employer’s own premises but does not necessitate the work be performed on a “construction site” or a “building site”. It was common ground that the work performed by the applicant was split on a 50/50 basis between work performed in the Rio Tinto workshop and work performed out in the field. It also seemed common ground on the evidence, that the work performed by the applicant for Monadelphous, involved maintenance and repairs to track maintenance machines and other machinery and equipment, which was used to maintain and repair the Rio Tinto railway. The applicant himself accepted in his evidence, that he did not perform repair or maintenance work on the railway itself. 27 If the applicant was engaged on work in the Rio Tinto workshop, as seemed accepted by the applicant in his submissions, this is not work performed “on a site” for the purposes of the definition of “construction industry” in s 3(1) of the Act: Aust-Amec Ltd t/as Metlab Mapel and SRC Laboratories and Ors v Construction Industry Long Service Leave Payments Board (1995) 15 WAR 150; (1995) 62 IR 412. The “construction industry” is that as set out in s 3 of the Act, and is not confined to the commonly understood meaning of “construction industry” or “building industry” and it is an expansive definition: Programmed Industrial Maintenance at [44]. 28 I therefore consider that the applicant’s work “on site” for about 50% of his time was sufficient to conclude that the applicant’s work was to a substantial degree, work involving “on site” work. If the work performed otherwise falls within the definition of “construction industry” in s 3(1), then the Act has application to the applicant’s employment. 29 The applicant argued that he was engaged in “the industry of carrying out on a site the construction, erection, installation, reconstruction, re-erection, renovation, alteration, demolition or maintenance of or repairs to … railways”. He submitted that in maintaining track machines and other equipment used by Monadelphous to maintain the Rio Tinto railway, he was an integral part of this industry, as he characterised it. As the applicant worked on “mobile plant” as it has been described, he relied on the decision of the Commission in Court Session in Construction Industry Long Service Leave Payments Board v Positron Pty Ltd (1990) 70 WAIG 3062. There, the Commission in Court Session concluded that employees engaged by a contractor to perform electrical maintenance work on 2020 WAIRC 00791 the treatment plant of a gold mine, including on mobile plant, were employed in the construction industry. From this case, the applicant contended that it may be open to conclude that work performed on mobile plant is not precluded from the definition of “construction industry” in s 3(1) of the Act. This means, that the work by the applicant on what was accepted to be mobile track maintenance machines and other mobile plant, is to be included in the definition of “construction industry” too. 30 The applicant contended that his work is the performance of work on a site, “in the industry of construction, reconstruction, alteration, and maintenance of and repairs to … a railway being the Rio Tinto railway” (applicant’s outline of submissions at [44]). 31 I do not accept this contention. 32 To conclude that the applicant was employed in the construction industry, requires the conclusion that the applicant was engaged on work involving “the maintenance of or repairs to … railways …”. This is so, as affirmed by the Full Bench in Programmed Industrial Maintenance, because the activities of the first part of the definition in s 3(1), all expressed disjunctively, are to be performed on the things, structures or works, set out in pars (i) – (xviii) of the definition. The words “the industry” after the words “construction industry means” do not enlarge or otherwise alter the scope of the words following, setting out the activities in the first part of the definition in s 3(1). 33 Importantly also, the definition means the performance of these activities “to” the matters set out in pars (i) – (xviii). Whilst this simple word has many meanings, in the context in which it is used, according to the Shorter Oxford Dictionary it means relevantly: “(III). Expressing the relation of purpose, destination, result, effect, resulting condition or status. (1). Indicating aim, purpose, intention, or design … (2). Indicating destination, or an appointed or expected end or event. (3). Indicating result, effect, or consequence: So as to produce, cause or result in. (4). Indicating a state or condition resulting from some process: So as to become …”. 34 In applying this part of the definition to the work of the applicant, he was not engaged on work for either Fluor or Monadelphous, involving maintenance of or repairs to railways themselves, as the definition requires. He was engaged on work better described as maintaining and repairing machines and other equipment, that is used to repair or maintain railways. The work that the applicant was performing was one step removed from the work to be performed “to” railways in the required sense. If one wishes to describe the work as an industry, it could be part of the industry of mechanical or machinery maintenance. However one describes the applicant’s work, it was not work in the “construction industry” for the purposes of the Act. 2020 WAIRC 00791 35 Whilst the applicant referred to Positron as assisting his argument that maintaining and repairing mobile track maintenance machines fell within the scope of the Act, I do not think that Positron can be taken that far. There are three reasons for this. First, the work in that case was found to be within the definition of “construction industry” because the employees concerned were performing maintenance of or repairs to “works for the extraction, refining, processing or treatment of materials or for the production or extraction of products and by products from materials;” in par (vi) of s 3(1)(a). This is a much broader category of work than the quite specific class of work in this case, of “the maintenance of or repairs to… railways” in par (ii), and this broader category of works is not relied on by the applicant in this case. Second, there is no reference to “mobile plant” in the definition in s 3(1) of the Act, or indeed anywhere in the Act. This appears to be a characterisation placed on the legislation by the respondent. The issue of whether or not a person is engaged as an employee in the “construction industry”, depends not on whether a person works on mobile plant, but rather, whether they engage in work falling within the definition in s 3(1) of the Act. Finally, and in any event, the summary of facts in Positron was very brief and it is not open to draw any direct parallels between the facts in that case and the facts in this matter. 3”

 

Programmed Industrial Maintenance v Construction Industry Long Service Leave Payment Board [2020] WAIRC 00758. Kenner SC