Western Australian Industrial Relations Commission

Employee not entitled to portable long service leave scheme as not employed in construction industry

 The Commission has dismissed an application to review a decision of the Construction Industry Long Service Leave Payments Board that decided that the applicant was ineligible to accrue benefits to long service leave under the Construction Industry Paid Long Service Leave Act 1985 (WA) (the Act), because he was not employed in the “construction industry”.

The applicant worked as a mechanical fitter performing maintenance work and repairs to track maintenance machines used by Rio Tinto to maintain its railway.

The applicant argued that his work was “maintenance of or repairs to railways” under the definition of “construction industry” set out in s 3(1) of the Act.

The respondent disputed this contention and submitted that such work performed by the applicant did not involve, of itself, maintaining or repairing railways. Instead, the respondent argued that the work engaged in by the applicant was the maintaining and repairing of equipment used in maintaining railways.

Senior Commissioner Kenner noted that the meaning of “construction industry” was considered by the Full Bench in the recent decision of Programmed Industrial Maintenance v Construction Industry Long Service Leave Payment Board [2020] WAIRC 00758. Kenner SC pointed out that work performed “on site” means work performed away from an employer’s own premises but does not necessitate that work be performed on a “construction site” or a “building site”.

Kenner SC found, on the evidence, that the applicant’s work was to a substantial degree, work involving “on site” work.

However, Kenner SC determined that the applicant was not engaged on work involving “the maintenance or of repairs to …railways…”. Instead, Kenner SC found that the applicant was engaged in work better described as maintaining and repairing machines that are used to repair or maintain railways. Therefore, the applicant’s work was not work in the “construction industry” for the purposes of the Act.

The application to review was dismissed.

The decision can be read here.

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