Western Australian Industrial Relations Commission

Full Bench unanimously upholds meaning of “site” in the construction industry

 The Full Bench has unanimously dismissed an appeal and upheld a decision of the Commission relating to an application for a review of a decision of the Construction Industry Long Service Leave Payments Board (the Board) that required the appellant to register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act).

At first instance

The appellant, who provides maintenance services under contract at established operational locations such as mines and processing plants, argued that it should not be obligated to register as an employer with the Board because they do not engage employees in the “construction industry”.

The principal issue raised in the proceedings at first instance was whether the appellant’s employees, who perform work on its clients’ premises, do so “on a site” for the purposes of the definition of “construction industry” in s 3(1) of the Act.

Chief Commissioner Scott concluded that the work performed by the appellant’s employees was performed “on a site” within the definition of “construction industry”. Scott CC rejected the appellant’s principal contention that “on a site” and “on site”, where used in the Act, means a “building site” or a “construction site”. She held that on its proper construction, the words “on a site” means the site at which the activities in the first part of the definition (e.g. construction, erection, installation) are performed on the buildings, works, roads etc. that follow in sub pars (i) to (vxiii).

The application to review was dismissed.

The decision at first instance can be read here.

Appeal to Full Bench

Ten grounds of appeal were made by the appellant on its appeal to the Full Bench. The grounds were all dealt with by Senior Commissioner Kenner in his decision, and whose findings were agreed with by Commissioner Matthews and Commissioner Walkington.

The appeal grounds related to several contentions that Scott CC erred in law in failing to have regard to the rules of statutory construction in the interpretation of several expressions, including “site”, “construction”, “maintenance of and repairs to” and “construction industry”.

The appellant further argued that Scott CC failed to properly apply and follow the decision in Aust-Amec Pty Ltd t/a Metlabs & SRC Laboratories and Others v Construction Industry Long Service Leave Payments Board (1995) WASC 718. It also contended that Scott CC failed to have regard to the mischief sought to be addressed by the Act.

The main grounds of appeal dealt the meaning of “site”. The appellant argued that Scott CC erred in law in failing to find that the term “on a site” or “site”, when used in the definition of “construction industry” in s 3(1), means a “construction site” or a “building site”.

The appellant contended that having regard to the legislative text, history and purpose, and the mischief sought to be addressed by the Act, the appellant’s submission as to the meaning of “site” being a “construction site” is a more natural constraint on the language used.

The Full Bench considered the legislative history, the rules of statutory interpretation, the process undertaken by Scott CC in reaching her conclusion as to the meaning of “site” and applied relevant legal principle and case law to the facts.

The Full Bench found that no error had been demonstrated in terms of the conclusion reached by Scott CC. It found that Scott CC had regard to the context and purpose of the Act, and correctly concluded that the statutory text must prevail in the case of any inconsistency.

The appeal was dismissed.

The decision can be read here.

Decision issued 2 September 2020

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