2022 WAIRC 00648
REVIEW OF DECISION OF THE CONSTRUCTION INDUSTRY LSL PAYMENTS BOARD
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00648

CORAM
: SENIOR COMMISSIONER R COSENTINO

HEARD
:
WEDNESDAY, 25 MAY 2022, WEDNESDAY, 13 JULY 2022

DELIVERED : MONDAY, 5 SEPTEMBER 2022

FILE NO. : APPL 43 OF 2021

BETWEEN
:
CONTRAFLOW PTY LTD
Applicant

AND

THE CONSTRUCTION INDUSTRY LONG SERVICE LEAVE PAYMENTS BOARD
Respondent

CatchWords : Industrial Law (WA)  Dispute as to liability to pay long service leave  Whether employee engaged in the construction industry  Definition of employer  Employee engaged as Traffic Controller  Employee’s work is ‘in the construction industry’  Meaning of ‘works’ for use on or for building or works  Meaning of ‘works for the preparation of sites’  Reviewable decision affirmed
Legislation : Construction Industry Portable Paid Long Service Leave Act 1985 (WA)
Construction Industry Portable Paid Long Service Leave Regulations 1986 (WA)
Fair Work Act 2009 (Cth)
Industrial Legislation Amendment Act 2011 (WA)
Local Government (Consequential Amendments) Act 1996 (WA)
Occupational Health, Safety and Welfare Act 1984 (WA) (repealed)
Occupational Safety and Health Regulations 1996 (WA) (repealed)
Construction Industry Long Service Leave Act 1983 (VIC) (repealed)
Result : Reviewable decision affirmed
REPRESENTATION:

APPLICANT : MR R LEWIS OF COUNSEL
RESPONDENT : MR S KEMP OF COUNSEL

Case(s) referred to in reasons:
AustAmec Pty Ltd t/a Metlab Mapel & SRC Laboratories v Construction Industry Long Service Leave Payments Board (1995) 15 WAR 150; (1995) 62 IR 412
GHD Pty Ltd v Worksafe Western Australia Commissioner [2021] WAIRC 00655; (2022) 102 WAIG 89
Wallis v The Construction Industry Long Service Leave Payments Board [2020] WAIRC 00791; (2020) 100 WAIG 1331
Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees v The Australian Workers’ Union of Employees, Queensland (No. 2) (2006) 181 QGIG 202
Mustac v Medical Board of Western Australia [2007] WASCA 128
Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board (PIM Full Bench) [2020] WAIRC 00758; (2020) 100 WAIG 1300
Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board (PIM First Instance) [2019] WAIRC 00843; (2020) 100 WAIG 40
Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board (PIM IAC) [2021] WASCA 208
Quantum Blue Pty Ltd v The Construction Industry Long Service Leave Scheme [2019] WAIRC 00860; (2020) 100 WAIG 125
Re Appeal by Shop Fitting and Building Services (Vic.) Pty. Ltd. (1989) 31 AILR 252
Re His Honour Warden Calder SM; Ex Parte Lee [2007] WASCA 161; (2007) 34 WAR 289
Reece Pty Ltd v The Worksafe Western Australia Commissioner [2015] WAIRC 00057; (2015) 95 WAIG 306
The WorkSafe Western Australia Commissioner v The Original Croissant Gourmet Pty Ltd [2007] WAIRC 01273; (2008) 88 WAIG 22
Thompson v The Construction Industry Long Service Leave Payments Board 2016 WAIRC 00054; (2016) 96 WAIG 144
Welldrill v Construction Industry Long Service Leave Payments Board [2009] WAIRC 00109; (2009) 89 WAIG 437
Wignall v Commissioner of Police [2006] WASAT 206
Woodside Energy Ltd v Federal Commissioner of Taxation [2006] FCA 1303; (2006) 155 FCR 357
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428
Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1992) 74 WAIG 2


TABLE OF CONTENTS

Review under s 50 of the Act 4
ContraFlow’s business 6
Work done by Mr Giglia 7
The parties’ approach to the referral application 7
The role of Traffic Controllers in roadworks 8
Evidence of Ms Deborah Costello 8
Evidence of Mr Donald Nigel Veal 10
The statutory scheme for portable paid long service leave 13
MyLeave’s submissions 16
ContraFlow’s submissions 18
Meaning of ‘in the construction industry’ 19
Is Mr Giglia’s work in the roadworks industry? 27
Alternative Route One: Is Mr Giglia engaged in the s 3(1)(a)(xvi) industry? 29
Alternative Route Two: Is Mr Giglia engaged in the s 3(1)(xvii) part of the construction industry? 31
Result 32

Reasons for Decision

1 The applicant, ContraFlow Pty Ltd, operates a business which specialises in traffic management services. It employs Traffic Controllers who manually direct road traffic and pedestrian flow on, near, or adjacent to roads in a variety of circumstances that result in road closures or part road closures. Mr Nunzio Giglia is one of ContraFlow’s employed Traffic Controllers.
2 A significant part of ContraFlow’s business involves designing, planning for and directing vehicle and pedestrian traffic with the aim of ensuring public safety around the construction, reconstruction, maintenance and repair of public roads (roadworks).
3 The respondent, The Construction Industry Long Service Leave Payments Board (known as MyLeave), has determined that ContraFlow is liable to pay contributions under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act) in respect of Mr Giglia. ContraFlow disputes that determination because it says it is not an ‘employer’ as defined by the Act. In particular, ContraFlow says that it does not engage persons as employees in the construction industry for the purposes of the definition of ‘employer’ in the Act.
4 It is common ground that ContraFlow is Mr Giglia’s employer and that Mr Giglia is an ‘employee’ as defined in the Act. It is also common ground that a significant proportion of the places where Mr Giglia works are ‘sites’ for the purpose of the Act’s definition of ‘construction industry’ because they are places where roadworks are carried out.
5 The first issue in this case is what type of work Mr Giglia must perform on these sites to be classified as being engaged ‘in the construction industry’ for the purposes of the definition of ‘employer’ in the Act. The second issue is whether as a matter of fact, Mr Giglia performs such work and is therefore engaged ‘in the construction industry’.
6 For the reasons that follow, I do not consider that an employee must themself perform the maintenance and repair activities referred to in the definition of ‘construction industry’ in order to be engaged ‘in the construction industry’. Further, I consider Mr Giglia’s traffic control work on the sites where roadworks are carried out qualifies him as being engaged ‘in the construction industry’. Accordingly, I affirm the reviewable decision.
Review under s 50 of the Act
7 Section 50(2) of the Act permits a person who is aggrieved by a ‘reviewable decision’ to refer the decision to the Commission for review. The section defines ‘reviewable decision’ as including a decision by MyLeave ‘as to the entitlement of an employee to long service leave’. MyLeave’s decision that ContraFlow is liable to make contributions in respect of Mr Giglia is, therefore, a ‘reviewable decision’.
8 By s 50(3) of the Act, on referral of a decision, the Commission is to:
…inquire into the circumstances relevant to the decision and may —
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and —
(i) substitute another decision; or
(ii) send the matter back to the Board for reconsideration in accordance with any directions or recommendations that the WAIRC considers appropriate.
9 The review exercise is administrative in nature. When a tribunal acts as an administrative review decision maker, and not as a judicial body, a party aggrieved by the decision, the subject of the review, does not bear a burden of proof. That is because the tribunal is not engaging in a task of fact finding on the basis of the balance of probabilities, but rather is in the shoes of the original decision maker, and is required to make the correct and preferable decision in light of all the information before it. The Commission’s task is simply to assess the facts, and apply the provisions of the Act: Welldrill v Construction Industry Long Service Leave Payments Board [2009] WAIRC 00109; (2009) 89 WAIG 437 per Wood C at [20].
10 Section 50(3) of the Act is in substantially the same terms as the provisions for the Commission’s review of decisions under the now repealed Occupational Health, Safety and Welfare Act 1984 (WA) which was considered by the Industrial Appeal Court in Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1992) 74 WAIG 2. One of the grounds of appeal in Wormald concerned whether it was for the applicant for review to prove the factual basis of matters contained in the request for review. On this ground, Franklyn J, with whom Ipp J agreed, stated at 4:
…It seems also, from the provisions of s51(5), that there is no question of the onus being on the person seeking the review to establish that the notice should not have issued, either in the form in which it did or at all, although he would of course be entitled to adduce evidence to that effect. The inquiry being “into the circumstances relating to the notice” it necessarily, in my view, requires that the Commissioner inquire into and ascertain for himself the validity of the Inspector’s opinion and the relevant circumstances giving rise thereto as set out in the notice. That this is so is also supported by the express reference to his right to refer such matters as he thinks appropriate to an expert of his own choosing. It is then for the Commissioner himself to determine, on the basis of “the circumstances relating to the notice” as he finds them to be, whether it can be affirmed as issued or in some modified form or whether it should be cancelled. In other words he must approach the facts and circumstances as found by him on his inquiry as if he were the Inspector determining whether, on those facts and circumstances, he could reasonably form the opinion formed by the Inspector of the particular activity, having regard also to the reasons and matters set out in the notice. If so, he affirms the notice. If not, depending on the opinion formed by him as to such matters, he either affirms it with modifications or cancels it as is appropriate…
11 This approach was followed in The WorkSafe Western Australia Commissioner v The Original Croissant Gourmet Pty Ltd [2007] WAIRC 01273; (2008) 88 WAIG 22; Reece Pty Ltd v The Worksafe Western Australia Commissioner [2015] WAIRC 00057; (2015) 95 WAIG 306 at [47] and GHD Pty Ltd v Worksafe Western Australia Commissioner [2021] WAIRC 00655; (2022) 102 WAIG 89 at [31][32].
12 While a formal onus of proof on a party may be absent in review proceedings, in some circumstances there may remain a practical onus on one or other party to prove facts in issue: Wignall v Commissioner of Police [2006] WASAT 206 citing Pinesales Pty Ltd v Commissioner of State Revenue [2006] WASAT 202 at [279].
13 On this referral, the Commission must investigate for itself the circumstances giving rise to the decision as to ContraFlow’s liability to make contributions in respect of Mr Giglia, and the validity of the conclusion reached by MyLeave. There is no onus on any party.
ContraFlow’s business
14 Mr Myles Ferrell is the owner and a director of ContraFlow. He provided evidence by affidavit as to the nature of ContraFlow’s business and the activities carried out by Traffic Controllers employed by it.
15 According to Mr Ferrell, the vast majority of ContraFlow’s operations involve the delivery of services under contracts with the Department of Main Roads WA and Local Government Authorities for temporary traffic management services to ensure public and worker safety around roadworks on public roads. As a company that implements traffic management on State controlled roads, ContraFlow is registered under Main Roads WA’s Traffic Management Company Registration Scheme.
16 A small proportion, less than 10%, of ContraFlow’s operations involves vehicle and pedestrian traffic management for the purpose of children’s crossings. Mr Ferrell described this as guiding vehicles as to where to stop on the approach side of children’s crossings.
17 ContraFlow also offers services related to the design, planning and implementation of traffic management plans (TMPs) and control systems, as well as parking assistance at and around public events, festivals and concerts and in emergency situations.
18 ContraFlow employs approximately 170 Traffic Controllers. Traffic Controllers direct vehicle and pedestrian traffic in accordance with TMPs to ensure public safety at the site of roadworks or road repairs, construction zones, accidents, public events and other road disruptions. Traffic Controllers use signs, bollards, cones, barriers and other devices to manage movements of emergency response teams, workers and the general public. Work generally takes place at or around streets, roads and highways, or around infrastructure sites in the Perth metropolitan area.
19 Mr Ferrell regularly attends at the locations where Traffic Controllers perform their work. He monitors the traffic flow to ensure the suitability of the traffic guidance scheme. He also reviews the signage and other devices for compliance with the TMPs and traffic guidance schemes.
20 Mr Giglia’s work duties are typical of all other Traffic Controllers ContraFlow employs.
21 All Traffic Controllers hold a worksite traffic management and traffic control accreditation issued by Main Roads WA. This accreditation covers skills and knowledge in the following areas:
(a) managing traffic on worksites;
(b) conforming to requirements of the TMP and promoting safe and consistent traffic management practices;
(c) controlling traffic at road worksites where a road closure or partial road closure is necessary for controlling traffic at other events where a road closure or partial road closure is necessary;
(d) controlling traffic in other circumstances where traffic control is required on a roadway;
(e) legally stopping and slowing the traffic where traffic speed is reduced to 60 kilometres per hour or less;
(f) reporting motorists who fail to follow reasonable directions to the supervisor or the police; and
(g) implementing and positioning signs, bollards and barriers.
22 Traffic Controllers familiarise themselves with and then implement TMPs. They must have an understanding of site and equipment safety requirements, the relevant reporting lines, responsibilities and authorities. They utilise twoway radios for communications with others, conduct hazard identification, job safety analysis and safe work method statements.
23 Traffic Controllers who hold an accreditation in Advanced Worksite Traffic Management are also authorised to make onsite adjustments to TMPs, prepare and review TMPs and approve temporary speed limit signs within certain parameters. Mr Giglia holds advanced accreditation.
Work done by Mr Giglia
24 Mr Ferrell confirmed in oral evidence that around 96% of Mr Giglia’s work was at roadworks sites in the Kalamunda Shire area. While he was also sometimes required to provide traffic control at events, such as market days, this was an insignificant proportion of his work.
25 Mr Ferrell gave evidence of a typical day or shift for Mr Giglia. On such a shift, Mr Giglia is assigned to a particular site. Once on site, Mr Giglia attends a prestart meeting with other Traffic Controllers on site, during which traffic management accreditations are checked. Mr Giglia is then involved in the setup, installation and management of either sitespecific or generic temporary traffic guidance signs such as speed limit zones.
26 Mr Giglia is engaged in directing vehicles and pedestrians on, near, or adjacent to roads to ensure safe access and egress. He might be required to handle a stopslow sign or other similar traffic control signs and devices to direct traffic. He may have to put barricades or other temporary structures in place to effect lane closures.
27 Mr Giglia will communicate with other traffic control personnel, construction workers and emergency response teams by using a radio to provide and receive updates on traffic conditions and surrounding activities. Communications would also be needed in some instances with the regional network operations centre.
28 At all times whilst working, Mr Giglia must ensure that he is positioned in specific areas that are designated as optimising his and traffic safety, and to ensure that he has a clear escape route away from the traffic control station in the event of an emergency.
29 Instructions may be given to Mr Giglia by ContraFlow’s Operations and Managers as well as from Main Roads WA and government officials.
30 Finally, Mr Giglia needs to close down the traffic control site once all workers have left. This involves some ‘aftercare’ including installing signs to notify motorists of changes in the road conditions, such as nolines marked or loose stones.
The parties’ approach to the referral application
31 The parties each filed written submissions prior to the hearing of this matter. In their written submissions, the parties informed the Commission that the relevant facts were agreed. The agreed facts consisted of four brief statements of fact.
32 The parties took what at first appeared to be highly divergent positions in relation to the correct construction of the relevant provisions of the Act. ContraFlow’s written submissions took aim at MyLeave’s submissions as being unsupported by the text of the Act or decided cases. MyLeave’s written submissions contained generalised propositions as to the scheme of the Act and its operation as being consistent with ContraFlow being liable under it.
33 In the apparent fervour to battle each other’s contended for result, both parties steamrolled over the facts and presented little, and tested nothing, in the way of facts, to assist the Commission to determine the dispute between them. The question, in this case, is whether Mr Giglia was engaged in the construction industry. The question raises essentially factual issues.
34 As the parties’ submissions were refined in the course of oral closing, it appeared that the dispute as to relevant legal principles and indeed the Act’s meaning was relatively narrow, and boiled down to whether a finding that an employee was engaged ‘in the construction industry’ required that the employee actually be doing the activities of construction of, maintenance of, repairs to, etc roads, or whether there need only be a link between the employee’s work and the construction, maintenance, repairs etc of/to roads, and if so, what degree of connection was required.
35 If that issue was resolved, as ContraFlow contended, on the basis that the definition of ‘employer’ required that Mr Giglia be engaged to actively do construction of, maintenance of or repairs to roads, that would be the end of the matter. There is no dispute that Mr Giglia did not himself perform construction, maintenance or repairs of/to roads.
36 If, however, as MyLeave contended, the correct construction of the Act required something less than engagement in the activities expressly listed in the ‘construction industry’ definition, there remains an issue of fact for determination, that is, whether Mr Giglia’s work had the necessary connection. While the evidence before the Commission described Mr Giglia’s traffic control work, there was no evidence before the Commission as to the connection between Mr Giglia’s work and the construction, maintenance, repairs etc of/to roads, besides the obvious fact of his presence on or in the vicinity of sites where those activities were being carried out.
37 The hearing was adjourned so that the parties could file further evidence on this factual aspect of the case. This resulted in the following evidence being received.
The role of Traffic Controllers in roadworks
Evidence of Ms Deborah Costello
38 ContraFlow adduced evidence from Ms Deborah Costello, ContraFlow’s Health, Safety, Environment and Quality Manager. Ms Costello has extensive prior experience as a Traffic Controller, in implementation of TMPs, supervision of Traffic Control teams and traffic control training.
39 Ms Costello set out the variety of industries and circumstances in which ContraFlow is engaged to provide traffic management services, ranging from street festivals and public events, utility supply, servicing and repair, amenity horticulture and landscaping to building construction and civil construction. She said that regardless of the industry or nature of the works, the tasks of a Traffic Controller remain the same.
40 Ms Costello described traffic control as the supervision of the movement of people, goods or vehicles to ensure efficiency and safety, although she agreed in crossexamination that safety is the predominant purpose of traffic control activities.
41 One of the themes of Ms Costello’s evidence was that not all road maintenance and repair work involved Traffic Controllers. Particularly those for large, longterm road work projects do not require the presence of Traffic Controllers on site. Indeed, Ms Costello noted that as of 1 July 2022, manual traffic control would not ordinarily be permitted on main roads.
42 Many large road work projects involve complex traffic management arrangements that are based on ‘temporary work zone barriers’, that is, the erection of physical barriers between the travelled way and the work area. According to Ms Costello, once the worksite is isolated within a contained barrier system, there is no requirement for Traffic Controllers to be on site during the construction activities. The barriers must be installed by certified installers or engineers, not by Traffic Controllers. For example, the roadworks involved in the Mitchell Freeway widening are contained behind a barrier system. Such barrier systems might be in place for months or years, depending on the project's duration.
43 In instances where these barrier systems are in place, Traffic Controllers are present only to implement temporary traffic management when the barrier system is removed or realigned. Ms Costello described their involvement as ‘intermittent traffic management’.
44 Ms Costello gave evidence of other scenarios where roadworks may be carried out without any involvement of Traffic Controllers, for example, road closures and shortterm, lowimpact works by Local Government Authorities. In this last category, any traffic control activities are undertaken by the road workers themselves.
45 During her oral evidence, Ms Costello described her involvement in prestart meetings with ContraFlow’s Traffic Controllers. She said that the prestart meetings often occurred before any other contractors arrived on site, and were generally with only her staff, that is, only with the Traffic Controllers that she supervised. While the roadworks contractors can attend pre-start meetings, Ms Costello’s evidence was that they normally do not ‘purely because [the Traffic Controllers] get there before anyone else gets there, because they install signs and devices so that the workers can come straight in’.
46 She described the purpose of the prestart meetings as being to give a briefing to Traffic Controllers about their role for the day, the scope of works taking place, specific risks that have been identified and the ablutions and amenities in the area. If there are changes in the scope of work which impact on the traffic management, then these changes are discussed.
47 Ms Costello said that where Traffic Controllers are part of a TMP, their role is to isolate the worksite, not prepare it.
48 According to Ms Costello, in the course of a typical day, Traffic Controllers are in communication with their Team Leader (from ContraFlow) and other Traffic Controllers. They are not required to communicate with the roadwork teams. They are all required to have a twoway radio for communications, but only the Traffic Controllers are on channel.
49 Having said that, Traffic Controllers are sometimes supplied with contact numbers for the TMP designer, the Local Government Authority, a supervisor or project manager, or the transport authority, for the purpose of contacting those persons or bodies in relation to the Traffic Controller’s operations. The ContraFlow Team Leader may also have ongoing communications with the roadworks contractor about how the roadworks are progressing.
50 Ms Costello confirmed that in some instances where roadworks are carried out on main roads, Portable Traffic Control Devices would be used to manage traffic conditions. These devices include portable traffic signals. Only accredited Traffic Controllers are able to operate Portable Traffic Control Devices.
Evidence of Mr Donald Nigel Veal
51 MyLeave tendered an affidavit of Mr Donald Nigel Veal, a transport planner, traffic engineer and Director of Donald Veal Consultants Pty Ltd (DVC). Mr Veal has 40 years’ experience as a traffic and transport engineer, and has worked 25 of those in Western Australia. In the course of his work, he prepares, approves and reviews TMPs associated with construction sites, roadworks and major events.
52 DVC subcontracts on many largescale road construction projects in Western Australia.
53 Mr Veal’s evidence was focused on the regulatory environment in which public roadworks are carried out in Western Australia. In particular, he set out the mandatory nature of the requirement for TMPs for all public roadworks, as set out in Main Roads WA’s Traffic Management for Works on Roads Code of Practice (Code). Mr Veal summarised these requirements:
(a) All roadworks require approval from the agency responsible for the care, control and management of the relevant road.
(b) All approvals for roadworks require the applicant to comply with, amongst other things, the Code and the Austroads Guides.
(c) All applications for approval of roadworks require that the applicant prepare and lodge a TMP for approval.
(d) If an approved TMP requires the presence of Traffic Controllers, roadworks cannot be performed without the presence of Traffic Controllers.
54 Mr Veal’s affidavit referred to and attached Part 7 of the Austroads Guide to Temporary Traffic Management (AGTTM). Its Introduction to Traffic Control states:
Road worksites are particularly hazardous in comparison to normal road operations. Traffic controllers protect road workers and as such, the training, skills and capability of traffic controllers are critical to the effective operation of worksites where they are used. Traffic controllers are used when signs and devices for roadworks are considered insufficient to provide traffic control for safety, public convenience and efficient job control and management. Traffic controllers have an important safety role on a worksite as well as being the front-line representative of their organisation and conducting an important public relations role when interacting with road users. (emphasis added)
55 Under the AGTTM, Traffic Controllers are responsible for the safety of fellow workers, motorists and road users and for enabling works at the site to be conducted safely by minimising the risk associated with traffic movement. The full list of Traffic Controller responsibilities is set out at 2.4.3 of the AGTTM:
Traffic controllers are responsible for the following duties:
• their own safety
• safety of fellow workers
• safety of motorists and road users
• enabling works at the site to be conducted safely by minimising the risk associated with traffic movement
• notify if any faulty equipment is being used
• remaining at their station at all times unless directed by the supervisor to leave or if relieved by another traffic controller
• controlling traffic to enable motorists and road users to negotiate around, through or past the worksite safely
• dealing with motorists and other road users professionally
• respond to instructions for traffic control in emergencies and other difficult situations
• monitor and report on delays to traffic
• supervising traffic controllers in training, as required
• reporting incidents and near misses
• install and remove signs that are required for traffic controllers.
56 Mr Veal also referred in his evidence to pre-start meetings. Traffic Controllers are required by the AGTTM to attend a prestart meeting. Paragraph 2.7.2 of the AGTTM provides:
The contractor and the traffic management company must to organise a pre-start meeting, to be attended by the traffic controller/s before commencing traffic control duties. The meeting is vital to ensure everyone on site understands activities that are occurring and the responsibilities and roles of each person working on the site are made clear prior to work commencing. Matters to cover in the pre-start meeting include:
• direct briefing of traffic controller’s role
• details of traffic guidance scheme, including traffic controller escape path
• contact numbers and details of relevant people
• breaks (e.g. toilet, water)
• traffic monitoring instructions
• details of the works being undertaken
• locations where workers are on foot
• site specific risks
• consideration of an exclusion zone
• incident management procedures.
57 Mr Veal said that in his experience, prestart meetings may take place at the traffic management company’s compound, or on site before other workers arrive on site. However, on other occasions, the pre-start meetings are conducted on site, and are attended by both Traffic Controllers and the site manager or project manager as well as workers who operate the machinery such as graders. The involvement of the contractors aids the Traffic Controllers to know the scope of the roadworks being carried out, so that the Traffic Controllers have an understanding of how that scope interacts with road users: ‘so that everyone knows what’s going on and the order of things’. They also discuss issues from the previous day, such as road user compliance.
58 Mr Veal said that roadworks fell into two categories relevant to how a prestart meeting might be conducted. In the first category, he gave the example of mending a series of four or five potholes, which might take half an hour each. In that example, the pre-start meeting might take place at ContraFlow’s compound, amongst the Traffic Controller team itself. The other type is a large project taking 18 months, where it is not possible to plan everything daybyday for the entire 18 month period. In this category, things like weather conditions and deliveries mean the site is too complicated to timetable ahead, and on site meetings, and sitewide updates, are more common.
59 To the extent that site conditions or changes to the scope of works are communicated to Traffic Controllers, Mr Veal said that Traffic Controllers need not know the specifics, but should understand the nature of the scope of works. According to Mr Veal, this information is helpful to the extent that it aids Traffic Controllers in understanding traffic conditions and how the work interacts with road users. Specifically, it is helpful to know the duration of the work, whether it will be during peak traffic periods, what queue lengths can be expected and whether there will be delivery of precast units and the like.
60 Mr Veal’s evidence was not that roadworks cannot be performed without Traffic Controllers, or that Traffic Controllers are necessary or essential to all roadworks. Indeed, the Code at 6.8.4 annexed to Mr Veal’s evidence provides:
Traffic Controllers are primarily used to manage, control and stop traffic where other signs and devices are considered insufficient. Accredited Traffic Controllers (see section 8) are required to operate in compliance with AGTTM Part 7: Traffic Controllers.
61 It is only when a TMP requires the presence of Traffic Controllers that their presence is a necessary requirement for roadworks to occur.
62 The Code provides at 4.2.1 and 4.2.5 (emphasis added):
4.2 TRAFFIC MANAGEMENT PLANS
4.2.1 General
Any party undertaking work on a road shall prepare a Traffic Management Plan (TMP) that adequately provides for the safety of workers and road users while maintaining an adequate level of service to road users. Traffic management planning should be undertaken in accordance with the AGTTM Part 2: Traffic Management Planning…
…
4.2.5 Traffic Management Implementation and Removal
The implementation, operation and/or removal of the temporary traffic management shall be considered part of the works, therefore the TMP shall provide details on how this activity will be conducted safely (refer to AGTTM Part 5 and Part 6) including order of set up and pack down…
63 Under the heading ‘Risk Management’ at 4.3, the Code states:
…The following must be considered when undertaking the risk management process for any activities on or near roads:
• the Work Health and Safety (General) Regulations 2022 identify construction work on or near roads as high risk construction work,
• AGTTM indicates that all works on roads are considered high risk,
• Main Roads has corporately identified interaction with live traffic as a critical risk.
Taking this into account it would usually be expected that the pre-treatment risk ratings for works (including traffic management set up and pack down) near live traffic would have a pretreatment risk rating of high or greater, i.e. it is recognised that it is possible that workers may suffer major injuries or severe permanent disablement when working near traffic with no treatments or controls in place (e.g. engineering, administrative, PPE, etc.)…
64 The Code requires the party undertaking the roadworks to keep a copy of the approved TMP: par 5.3.
65 Neither the Code nor the AGTTM reveals any express requirement that Traffic Controllers interact with workers carrying out the maintenance or repair works on the road, nor that they have knowledge of the methods of maintenance, construction or repair of roads or the operation of plant.
66 Nor do these documents suggest that Traffic Controllers play a part in risk management or ensuring people’s safety from risks arising from the construction work itself, such as the operation of plant and machinery. Rather, the focus is on understanding site risks arising from traffic conditions. It could be said that a Traffic Controller’s focus is on the external environment, rather than the construction operations.
67 Consistent with Ms Costello’s evidence, Mr Veal described instances where semipermanent barrier systems provide the necessary worksite isolation rather than Traffic Controllers. Like Ms Costello, he confirmed that where such barrier systems are in place, there is usually a requirement for Traffic Controllers at some stage during the project, particularly for decommissioning and realignment. In relation to a project Mr Veal is currently involved in, barriers are in place, the works have been ongoing for 18 months, and Traffic Controllers are on site frequently during barrier realignment works. When pressed on the extent of Traffic Controller involvement in works like this example, Mr Veal said they may be present daily, setting out traffic cones and moving signs.
68 Also consistent with Ms Costello’s evidence, Mr Veal explained that Traffic Controllers report to their shift manager or shift supervisor. He explained that if a contractor wants to, for example, regrade a section of the road further down from the current works, they tell the shift supervisor, who will then instruct the Traffic Controllers to ‘set up camp down there to allow the works to proceed’.
The statutory scheme for portable paid long service leave
69 In Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board (PIM Full Bench) [2020] WAIRC 00758; (2020) 100 WAIG 1300, Kenner SC (as he then was) set out a brief history of the Act and the statutory scheme at [21][29]. It is not necessary for me to repeat what was stated there. Relevant to the issues in this matter, the scheme of the Act provides portable long service leave entitlements to employees engaged in the ‘construction industry’ as defined. An employer of such employees is required to make contributions by way of a levy into a fund administered by MyLeave.
70 The obligation upon an employer to register under s 30(1) of the Act is not dependent on the employer being engaged in the construction industry. It is dependent on the employer employing persons as employees, who are engaged in the construction industry: AustAmec Pty Ltd t/a Metlab Mapel & SRC Laboratories v Construction Industry Long Service Leave Payments Board (1995) 15 WAR 150; (1995) 62 IR 412.
71 It is convenient at this point to also set out the relevant definitions of ‘construction industry’, ‘employee’ and ‘employer’ contained in s 3 of the Act:
…
construction industry means the industry —
(a) of carrying out on a site the construction, erection, installation, reconstruction, reerection, renovation, alteration, demolition or maintenance of or repairs to any of the following —
(i) buildings; and
(iia) swimming pools and spa pools; and
(ii) roads, railways, airfields or other works for the passage of persons, animals or vehicles; and
(iii) breakwaters, docks, jetties, piers, wharves or works for the improvement or alteration of any harbour, river or watercourse for the purposes of navigation; and
(iv) works for the storage or supply of water or for the irrigation of land; and
(v) works for the conveyance, treatment or disposal of sewage or of the effluent from any premises; and
(vi) works for the extraction, refining, processing or treatment of materials or for the production or extraction of products and by-products from materials; and
(vii) bridges, viaducts, aqueducts or tunnels; and
(viii) chimney stacks, cooling towers, drilling rigs, gasholders or silos; and
(ix) pipelines; and
(x) navigational lights, beacons or markers; and
(xi) works for the drainage of land; and (xii) works for the storage of liquids (other than water) or gases; and
(xiii) works for the generation, supply or transmission of electric power; and
(xiv) works for the transmission of wireless or telegraphic communications; and
(xv) pile driving works; and
(xvi) structures, fixtures or works for use on or for the use of any buildings or works of a kind referred to in subparagraphs (i) to (xv); and
(xvii) works for the preparation of sites for any buildings or works of a kind referred to in subparagraphs (i) to (xvi); and
(xviii) fences, other than fences on farms;
(b) of carrying out of works on a site of the construction, erection, installation, reconstruction, re-erection, renovation, alteration or demolition of any buildings or works of a kind referred to in paragraph (a) for the fabrication, erection or installation of plant, plant facilities or equipment for those buildings or works;
(c) of carrying out of work performed by employees engaged in the work referred to in paragraph (a) or (b) and that is normally carried out on site but which is not necessarily carried out on site,
but does not include —
(d) the carrying out of any work on ships; or
(e) the maintenance of or repairs or minor alterations to lifts or escalators; or
(f) the carrying out of maintenance or repairs of a routine or minor nature by employees for an employer, or another person under an arrangement with a labour hire agency, who is not substantially engaged in the industry described in this interpretation;
…
employee means —
(a) a person who is employed under a contract of service in a classification of work referred to in a prescribed industrial instrument relating to the construction industry that is a prescribed classification; or
(b) an apprentice;
employer means —
(a) a natural person, firm or body corporate who or which engages persons as employees in the construction industry; or
(b) a labour hire agency which arranges for a person who is a party to a contract of service with the agency (person A) to do work in the construction industry for another person (person B), even though person A is working for person B under an arrangement between the agency and person B,
but does not include a Minister, authority or local government prescribed under subsection (4)(c);
…
72 As observed by Kenner SC (as he then was) in Quantum Blue Pty Ltd v The Construction Industry Long Service Leave Scheme [2019] WAIRC 00860; (2020) 100 WAIG 125 two steps are required for the conclusion to be reached that a person is engaged ‘in the construction industry’ for the purposes of the Act. The first is that they are employed in a classification of work in one of the prescribed industrial instruments under the Act. The second is that the work the employees do can be characterised as work in the construction industry, as defined: [17].
73 As stated above, it is common ground that the first step is satisfied in Mr Giglia’s case. He is employed in the classification of Traffic Controller, a classification which is named in each of the Australian Workers’ Union Construction and Maintenance Award 1989, the Transport Workers Spraypave Pty Ltd Award 1990, the Western Australian Civil Contracting Award 1998 and the Australian Workers’ Union Construction and Maintenance (Consolidated) Award 1987. These awards are all industrial instruments which are prescribed under the Construction Industry Portable Paid Long Service Leave Regulations 1986 (WA).
74 As to the significance of the award classifications to the definition of ‘employer’ in the Act, in AustAmec, Ipp J said at [152]:
Accordingly, an “employer” is not defined simply to mean a person who employs an “employee” as defined. An employer is a person who engages persons as employees “in the construction industry” but does not include a Minister, authority or council as prescribed. Thus while employees are defined by reference to prescribed awards “relating to the construction industry”, the definition of “employer” imports the additional qualification that the employees must be “in the construction industry”. The definition of “employee” therefore has a different ambit to that of “employer”. The consequence of this is that there may be persons who are “employees” within the meaning of the Act who are not employed by “employers” within the meaning of the Act.
MyLeave’s submissions
75 MyLeave’s initial written submissions were quite generalised. Its initial written submissions did not accurately reflect MyLeave’s case as it was elucidated in the course of the hearing.
76 MyLeave’s initial written submissions stated:
The sites at which [Mr Giglia’s] work is performed would fall within the definition of “construction industry” in the Act, meeting the description in par (a)(ii) of the definition.
77 The initial submission further stated:
…[I]t is sufficient for the employee to perform work that is the work of a prescribed classification on a site that falls within the definition of “construction industry”.
and:
The industry is essentially defined by reference to sites, not by reference to the businesses that are the participants in the industry.
78 Granting that these submissions were introductory and generalised, they nevertheless point to an erroneous approach to the definition of ‘construction industry’ in that MyLeave seeks to supplement it with an enquiry as to whether a work location is ‘a site’.
79 Later in the initial submissions, MyLeave contradicts these statements by recognising that there are three relevant elements to part (a) of the definition of ‘construction industry’. Namely:
(a) there is a site (away from the employer’s usual business premises);
(b) construction, erection, installation etc is undertaken on the site; and
(c) that work occurs of or to one of the structures set out in subpars (i) to (xviii) in subpar (a) of the definition.
80 As to the meaning of ‘employer’ and when an employer engages an employee ‘in the construction industry’, MyLeave made the following submissions:
Once a site meets the requirements, any person working on the site is working in the construction industry as that term is defined in the Act.
…
A person who engages an employee to perform the usual work of a prescribed classification on a site will be engaging that person in the construction industry and be an employer for the purposes of the Act. (emphasis added)
81 By the time MyLeave closed its case, it had walked back from these submissions, perhaps in recognition of their departure from the words in the Act. In supplementary written submissions, MyLeave takes up the statements of Kenner SC (as he then was) in Wallis v The Construction Industry Long Service Leave Payments Board [2020] WAIRC 00791; (2020) 100 WAIG 1331, to the effect that for an employee to be engaged in the construction industry requires that they be involved in the construction, maintenance, repairs etc of/to roads. MyLeave accepts that work that is ‘onestep removed’ from such involvement will not qualify. MyLeave says that this does not mean an employee must perform the specific types of activities expressed in the definition of ‘construction industry’ to so qualify.
82 MyLeave emphasises that to construe the Act as requiring an employee to perform the specific construction or building work referred to in the definition of construction industry would render superfluous the provisions of the Act concerning the definition of ‘employee’ by reference to prescribed award classifications. It notes that s 3(4) defines ‘prescribed classification’ as a classification contained in any industrial instrument made with respect to ‘employment in the construction industry’.
83 In essence, MyLeave says there must be a sufficient degree of connection, or a lack of remoteness, between the work done by a Traffic Controller and the particular construction industry activity in order for the employee to be engaged ‘in the construction industry’. Counsel for MyLeave stated:
…I suppose you could call it a question of remoteness. It’s not a question of what type of work is being performed, its whether or not there is a reasonable link between the work and the construction industry definition and the work that is being carried on at the site otherwise in the form of construction work.
84 MyLeave maintains, though, that ‘[t]he fact that you’re doing the work of a prescribed classification is really sufficient, in our submission, to justify a finding that you’re working in the construction industry if you’re doing that work on a site…’.
85 MyLeave says that its approach is:
…consistent with the usual concept of working in an industry, namely, the person need not be performing the core work of the industry in order to be employed in the industry. For example, a factory cleaner is still employed in the manufacturing industry despite not undertaking any manufacturing work.
86 It says that the evidence in this case establishes a sufficient degree of connection between Mr Giglia’s work and the construction industry activities. In particular:
(a) The construction, maintenance and repair of roads in Western Australia is a highly regulated activity.
(b) If a TMP requires the presence of Traffic Controllers on the site of roadworks, roadworks cannot be commenced or completed without the presence of Traffic Controllers and compliance with the TMP.
(c) Where Traffic Controllers are engaged, their role and work enables the construction to be carried out safely. The work of Traffic Controllers is important to the construction, maintenance and repair of roads.
(d) Traffic Controllers are, therefore, an essential component of such roadwork projects whenever a TMP stipulates Traffic Controllers as a requirement.
(e) MyLeave also points out that the Code requires that Traffic Controllers be issued with a valid WorkSafe WA Construction Induction Training Card (White Card), which is issued following completion of a recognised construction industry training course: Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations) (now repealed), reg 3.136.
87 In its supplementary written submissions, MyLeave also raised an alternative argument that Mr Giglia is engaged ‘in the construction industry’ as defined by s 3(1)(a)(xvi) or (xvii) of the Act. MyLeave argues that Traffic Controllers’ involvement in TMPs are ‘works’ for the use of roadworks or for the preparation of sites for roadworks.
ContraFlow’s submissions
88 ContraFlow agrees that, on the basis of the uncontentious facts:
(a) Mr Giglia is an ‘employee’ as defined by the Act; and
(b) the majority of places at which Mr Giglia works are ‘sites’ within the definition of ‘construction industry’.
89 ContraFlow submits that as Mr Giglia was performing traffic management, an activity which is not listed in the definition of ‘construction industry’ within the Act, he was not engaged ‘in the construction industry’. It follows that ContraFlow is not an ‘employer’ as defined.
90 ContraFlow points out the distinction in the definitions of ‘employee’ and ‘employer’ identified by Ipp J in AustAmec and further recognised by Kenner SC (as he then was) in PIM Full Bench at [114][115]. The distinction is that the definition of employer does not require that the employer itself be in the construction industry, but is qualified by the requirement that its employee(s) be engaged in the construction industry.
91 ContraFlow submits that the authorities have a consistent theme that in order for activities that an employee engages in to be captured by the definition of ‘construction industry’, those activities must fall within the description set out in that definition: construction, erection, installation, reconstruction, reerection, renovation, alteration, demolition or maintenance to one of the things listed in subpars (i) through (xiii).
92 ContraFlow says that the authorities, particularly PIM Full Bench, indicate that the definition of ‘construction industry’ is a strict definition. For activities to be captured by the definition they must be capable of being found in the words of the definition. The reference in the definition of ‘construction industry’ to ‘a site’ is a prequalifier to what follows in regard to the requirement of the activities carried out. The work activities that the employee is engaged in, by the employer, must fall within those set out in the definition of ‘construction industry’.
93 ContraFlow submits that the requirement that an employee be engaged in the construction industry is the final hurdle for the employee to overcome in order to be entitled to receive benefits under the scheme. It submits that the issue of whether or not a person is engaged as an employee ‘in the construction industry’ depends on whether they engage in work falling within the definition in s 3(1) of the Act.
94 ContraFlow points to the fact that in Wallis the employee was both an employee within the meaning of the Act and working on a site for the purposes of the Act, but was not ultimately found to be working ‘in the construction industry’, to demonstrate that the test involves this severable and separate element.
95 ContraFlow relies upon a decision of Deputy President Bloomfield in Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees v The Australian Workers’ Union of Employees, Queensland (No. 2) (2006) 181 QGIG 202. In this case, the applicant Union argued that employees whose substantial functions were traffic control were providing security services, and thus were covered by the Security Industry (Contractors) Award and not the Civil Construction, Operations and Maintenance General Award. In the course of determining award coverage, the Deputy President analysed the relationship between the role of Traffic Controllers and road construction and maintenance.
96 The following summary of Traffic Controller’s duties in that case aligns with the evidence given in this case:
A traffic controller performing traffic control duties is not permitted to perform any other duties whilst performing that role. That is the only activity they should be undertaking, unless relieved from performing traffic control functions. If they noticed something amiss on a construction site, for example a crane was about to topple for some reason, their duty was to stop the public from entering the worksite and to control the traffic by stopping it. It would not be their function to become involved in the site activities. That would be the responsibility of the crane driver and other construction workers.
97 The Civil Construction, Operations and Maintenance General Award was expressed to cover ‘Employees engaged in Making Roads’ defined as ‘…the construction and/or maintenance of roads and clearing or doing work in or in connection with the construction and/or maintenance of roads’. In finding that Traffic Controllers were not covered by the Civil Construction, Operations and Maintenance General Award, the Deputy President characterised the evidence as demonstrating that Traffic Controllers act independently of other persons engaged at worksites, and are not permitted to become involved in the activities on site.
98 Mention is made in ContraFlow’s written submissions of the coverage of the Building and Construction General OnSite Award 2020, a modern award under the Fair Work Act 2009 (Cth). ContraFlow suggests its coverage expressly excludes Traffic Controllers working on public roads because it contains a definition of ‘general building and construction’, which includes construction in connection with civil and/or mechanical engineering projects only (not road making). ContraFlow did not really elaborate on why this is relevant to determining the meaning of the term ‘in the construction industry’ in the Act.
99 ContraFlow submits that the fact that Traffic Controllers must hold a White Card does not assist in determining whether they are ‘in the construction industry’, because the application of the now repealed OSH Regulations is broader than the definition of ‘construction industry’ under the Act, in particular because the now repealed OSH Regulations extend to work ‘adjacent to’ roadworks.
100 ContraFlow submits that whether an employee is engaged ‘in the construction industry’ is a matter of fact and degree, depending not only on whether some of the work performed by that employee is within the construction industry, but also the degree to which that work forms part of the overall duties of the person concerned. Applying this test, Mr Giglia, and other Traffic Controllers engaged by ContraFlow, are not engaged in the construction industry.
Meaning of ‘in the construction industry’
101 The meaning of ‘in the construction industry’ for the purpose of the definition of ‘employer’ in the Act was considered by the Supreme Court of Western Australia in AustAmec, and by the Commission in Wallis. To the extent that the determination of the meaning of that term constitutes the essential reasoning in AustAmec, it is binding on me: Mustac v Medical Board of Western Australia [2007] WASCA 128 at [48]. Further, I should follow any construction adopted by the Commission in its earlier decision, unless it is clearly wrong: Mustac at [38]. In Mustac, the Supreme Court observed at [46] that the application of the practice of judicial comity involves a flexible approach. That may require independently reaching a view as to the correct construction as a starting point.
102 If the construction issue:
(a) has not been authoritatively decided by binding precedent; and
(b) cannot be resolved by application of the practice of judicial comity;
then my task is to construe the provisions of the Act in accordance with the wellestablished principles of statutory construction. The principles of statutory construction were recently described by the Full Bench in GHD at [53] and [54] citing Australian Unity Property Ltd v City of Busselton [2018] WASCA 38, Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board (PIM IAC) [2021] WASCA 208 and Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428.
103 The task involves giving the words of the statutory provision the meaning which the legislature is taken to have intended it to mean. The focus of the exercise is to find guides to meaning in the text and structure of the legislation, consistency within it, its context and general purpose.
Is AustAmec binding authority on point?
104 AustAmec involved two issues. The first was whether the plaintiff companies were obliged to be registered under s 30(1) of the Act, which, as it then stood, obliged ‘employers in the construction industry’ to register under the Act. As the Act then stood, the element of being ‘in the construction industry’ was contained in the definition of ‘employer’ and in s 30(1). The second issue was whether, if the plaintiffs were not themselves ‘in the construction industry’ and required to be registered for the purpose of s 30(1), they were nevertheless required to make contributions in respect of employees under s 34(1).
105 Section 34(1) provided that an ‘employer’ was required to pay contributions for employees employed by the employer.
106 The definition of ‘employer’ for the purpose of s 34(1) was the definition contained in s 3: ‘a natural person or firm or body corporate, as the case may be, who or which engages persons as employees in the construction industry; but does not include a Minister, authority or council prescribed under subsection (4)(c)’.
107 In considering the second issue, His Honour Ipp J said at 161:
…an employer is defined to be a person who engages persons who are not only employees (as defined), but who are also employees “in the construction industry”. This, together with the distinction to which I have already referred between an employer who is required to be registered and an employer who is not, contemplates that a mere employer (ie an employer who is not required to be registered) may not itself be “in the construction industry” but may employ employees (as defined) in the construction industry. Such an employee may be a person, employed by an organisation falling outside the construction industry, who performs work within the construction industry. An example of this would be, say, a bricklayer employed by a university or a similar institution to maintain and repair existing buildings on a site, and to lay bricks on a site for new buildings.
108 The defendant in AustAmec had submitted that the words ‘in the construction industry’ in the definition of ‘employer’ had no real work to do. His Honour rejected that contention, concluding that an employer as defined is a person who engages persons who, first, fall within the definition of ‘employee’ and, second, are employees ‘in the construction industry’. Ipp J observed the element relating to being engaged ‘in the construction industry’ was an integral part of the definition of ‘employer’: 153.
109 As to the application of this latter element, His Honour stated at 162:
Whether a person is an employee in the construction industry depends not only on whether some of the work carried out by him or her is in the construction industry, but, also, on the degree to which that work forms part of the overall duties of the person concerned…
110 His Honour then proceeded to consider, as a matter of fact and degree, whether certain employees (as defined by the Act) were engaged ‘in the construction industry’. There were several categories of employees His Honour considered. Several categories of employees were not engaged ‘in the construction industry’ because their work was performed wholly or predominantly at the employer’s premises and not on a site.
111 On site heat treatment employees and mechanical testing employees were found not to be ‘in the construction industry’ because the nature of the services was found to be outside of construction, for example, services to manufacturing. His Honour considered it was open that employees in welding inspection services on site, and whose work was supervisory, may be ‘in the construction industry’, but the evidence was insufficient to reach that conclusion. His Honour considered such employees were possibly akin to foremen, although they had no authority over those persons performing the construction work. Employees engaged in the extraction of samples from site for testing by means of drilling were likely in the construction industry.
112 AustAmec establishes that the requirement for an employee to be engaged ‘in the construction industry’ is a separate element of the definition of employer, and that whether the requirement is met is to be determined as a matter of fact and degree.
113 Justice Ipp does not explicitly state that an employee need not be actually doing, by their own hands, construction, maintenance, repairs etc, in order for their work to be ‘in the construction industry’ as defined. However, His Honour considered work that was supervisory and involved inspection of works, work that was not itself creating or making the particular structures, could fall within the words ‘in the construction industry’. His Honour’s approach could not be characterised as requiring that the employee actually be doing the activities of construction, maintenance, repairs, etc. His Honour’s willingness to entertain the possibility that a welding inspector’s work was ‘in the construction industry’ but work in the sphere of mechanical testing was not, demonstrates His Honour’s approach.
114 On the other hand, it cannot be said that AustAmec provides support for a broad approach to the meaning of ‘in the construction industry’. On this point, when considering the first issue for determination, that is, the requirement for registration of employers ‘in the construction industry’ under s 31, Ipp J observed at 159 that the Act’s use of the word ‘in the construction industry’ has a narrower meaning than the words ‘relating to’ found in the definition of employee, and that this difference in wording is significant, indicating a legislative intention that the obligation to register would be imposed on a more limited class of persons than those whose business might merely ‘relate to’ the construction industry.
115 These observations are also apposite in relation to the words ‘in the construction industry’ in the definition of ‘employer’. The phrase can be contrasted with the common formula of scope clauses in awards, referring to ‘…employment of persons engaged in or in connection with the industries of…’ or ‘…work done in or in connection with [listed activities and works]…’. Words of connection like these in legislation have been described as being of wide import, indicating a legislative intention to involve as broad a connection as is permitted by their context and legislative purpose: Re His Honour Warden Calder SM; Ex Parte Lee [2007] WASCA 161; (2007) 34 WAR 289 at 297298 and Woodside Energy Ltd v Federal Commissioner of Taxation [2006] FCA 1303; (2006) 155 FCR 357 at 374.
116 MyLeave urged that Ipp J’s decision be treated with caution because the Act has since been extensively amended. MyLeave did not state which aspect of the reasoning was unreliable. If the decision is authority for a particular meaning of ‘in the construction industry’, the Act’s amendment does not detract from the decision’s authority. The definition of ‘employer’ was amended by the Local Government (Consequential Amendments) Act 1996 (WA) to substitute the term ‘council’ with ‘local government’ and then in 2012 by the Industrial Legislation Amendment Act 2011 (WA) to insert a new subpar (b) dealing with labour hire agencies. Neither amendment affects any substantive change to the definition in subpar (a). The reenactment principle is that where Parliament reenacts a provision in words that are almost identical to those which have been judicially considered, the legislature is presumed to have intended the words to bear the meaning already judicially attributed to them: Re Alcan Australia Limited; Ex Parte Federation of Industrial Manufacturing and Engineering Employees [1994] HCA 34; (1994) 123 ALR 193 at 100.
117 On this analysis of the reasoning in AustAmec I consider it authoritatively decides that being engaged ‘in the construction industry’ does not mean performing work that is precisely the activities listed in the ‘construction industry’ definition.
Commission’s decisions on point
118 Chief Commissioner Scott touched upon the requirement for employees to be engaged ‘in the construction industry’ in Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board (PIM First Instance) [2019] WAIRC 00843; (2020) 100 WAIG 40. She said:
[60] …For the purposes of the Act, the issue is whether the employees are in the construction industry. The meaning of that term does not rely on common understandings or dictionary definitions of construction industry. It means, for the purposes of the Act, what the Act says it to mean…
…
[68] Therefore, the preliminary words in the definition of construction industry mean that of the industry of carrying out, at a position, area, location, place or situation, a range of activities being the construction, erection, installation, reconstruction, reerection, renovation, alteration, demolition or maintenance of or repairs to a range of buildings, structures, works etcetera, and for specified purposes or works.
[69] The definition of construction industry is in two parts which need to be read together. The first part, disjunctively, includes the activities of construction, erection, installation etcetera in the preamble of paragraphs (a) and (b). The second part is made up of types of things to which those activities are performed, such as buildings, swimming pools, roads, etcetera. These, too, are described disjunctively. I propose to set out a number of examples of what is included in the construction industry when one item from the first part and one from the second are read together as the structure of the definition requires. The first example is the construction of buildings; the second, the erection of a breakwater; the third, the renovation of works for the storage or supply of water.
…
[77] The scope of the construction industry as defined in s 3 is very broad. It encompasses those activities normally considered to be construction work such as, explicitly, construction, erection, reconstruction, reerection and demolition. However, it also encompasses installation, renovation, alteration and maintenance of or repairs to items. All of those activities form part of the construction industry where they are done to buildings; swimming pools and spa pools; roads, railways etcetera; breakwaters; works for the storage of water etcetera.
119 These observations were affirmed by the Full Bench in PIM Full Bench at [45] and by the Industrial Appeal Court in PIM IAC. His Honour Kenneth Martin J observed at [38]:
…Within subpar (a) of the definition of ‘construction industry’ two essential components of the definition are seen. The first is the wideranging work activities identified in the preface of subpar (a), embracing there not merely activities of construction, erection and installation, but extending to capture what might be described as lesser magnitude activities such as alteration, maintenance or repairs. The second component of subpar (a) emerges in the breadth of the 19 mentioned places or subject matters identified by Roman Numerals (i) to (xviii)  at which the as mentioned work activities might be performed. It will also be noticed that only one of the subjects (identified by (i)) is in relation to ‘buildings’…
120 In PIM Full Bench, the Full Bench comprehensively reviewed the statutory scheme of the Act with a view to construction of the words ‘on a site’ in the definition of ‘construction industry’. By one ground of appeal, the appellant contended that for an employee to be engaged ‘in the construction industry’ required a consideration of whether the employer itself is also engaged in the construction industry. This contention was dismissed by the Full Bench, by reference to the reasoning in AustAmec. Aside from generally affirming Ipp J’s approach in AustAmec, the Full Bench decision does not take matters further in relation to the meaning of ‘in the construction industry’.
121 Senior Commissioner Kenner’s (as he then was) decision in Wallis is on point. It was decided after PIM Full Bench.
122 As in this case, in Wallis there was no dispute that the employee was engaged in a classification of work in a prescribed industrial instrument, and was an ‘employee’ as defined by the Act. The issue for the Commission was whether the employee was employed ‘in the construction industry’. The employee was a mechanical fitter who performed repairs and servicing work on mechanical equipment used to maintain and repair the Rio Tinto railway network. Half his time was spent in the workshop, and the other half was in the field, doing diagnostic testing, maintenance and repairs to track maintenance machinery. The employee did not perform repairs or maintenance work on the railway itself.
123 In finding the employee was not engaged ‘in the construction industry’, the Senior Commissioner stated:
[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.
124 The Senior Commissioner’s conclusions rest on three antecedents: first, the definition of ‘construction industry’, while expansive, is also exhaustive. It is a strict definition and there is no room within it to imply common understandings of what is the construction industry. The definition of ‘construction industry’ embodies certain activities performed on certain things, structures or works. See also PIM Full Bench at [45] and [61], and PIM IAC at [13], [38] and [156].
125 The second is that the reference in the definition of ‘construction industry’ to ‘to’ introduces a causative connection between the performance of the activity mentioned in the definition and the thing, structure or works mentioned. The activity must be aimed at, and produce an effect or result upon the thing, structure or works. While the Senior Commissioner does not mention the word ‘of’ in the definition, the same reasoning applies.
126 Finally, that the work of an employee may be essential or integral to the resulting thing, structure or works, is not, on its own, sufficient to satisfy the requisite causative connection.
127 MyLeave submits that Wallis should not be followed to the extent that, at [32], it suggests an employee must perform specific types of work to be regarded as being engaged in the ‘construction industry’. It is clear that the reasoning in Wallis means that the focus must be on the work the employee performs, and whether it is part of the ‘construction industry’ as defined. However, I do not see any part of the reasoning requiring the employee to do the specific activities listed in the definition of ‘construction industry’. The Senior Commissioner’s discussion of the connection required and particularly his references to ‘work involving’ and ‘part of the industry’, leave room for the work to be something other than construction, maintenance, repairs, etc, provided the work is part of the activity that produces an effect on the works that are under construction, maintenance, repairs etc.
128 Further, it is clear from the Senior Commissioner’s reasons read as a whole, that it is entirely consistent with AustAmec. It does not take an expansive or broad view of the connection between an employee’s work and the ‘construction industry’ as defined. Nor does it require total correspondence between the employees’ work performed and the activities listed in the construction industry definition.
129 It appears then that Wallis does not decide between any alternative constructional choices as to the meaning of ‘in the construction industry’. At the same time, it does not support a construction:
(a) requiring the employee’s work be the precise activities in the definition of ‘construction industry’; nor
(b) requiring a mere connection between the employee’s work and the ‘construction industry’, which is not too remote.
130 In both AustAmec at [164] and Wallis, Ipp J and Kenner SC respectively acknowledge that characterising the employer as operating in another industry is not a disqualifier for the work of an employee being in the ‘construction industry’ as defined. Nevertheless, both characterised the employee’s work as within another recognised industry: the manufacturing industry and the mechanical maintenance industry. Such characterisation may have a useful role to play in resolving the question of when an employee is engaged in the ‘construction industry’ as defined. It is consistent with the view that the ‘construction industry’, like other industries, is an aggregate and multidimensional concept.
Other textual and contextual considerations
131 The conclusion that AustAmec authoritatively decides that there need not be total correspondence between the work done by an employee and the activities in the ‘construction industry’ definition, is perhaps sufficient for the disposition of this matter.
132 Wallis applies the meaning attributed to that term in accordance with AustAmec and takes the matter slightly further by reference to the concepts of being ‘involved in’ or ‘part of’ the industry. To the extent that Wallis does so, I respectfully consider that approach to be sound, being consistent with the natural and ordinary meaning of the words ‘in the construction industry’ and for the further reasons set out below. I have no reason to treat the decision or reasoning as erroneous or to depart from it.
133 The approach in Wallis, that is, the absence of a requirement for total correspondence between an employee’s work and the construction industry activities, finds support in other textual and contextual considerations.
134 The definition of ‘construction industry’ commences with the words ‘the industry — (a) of…’. These words do not enlarge or alter the scope of the words following.
135 However, nor should the words be disregarded or viewed as superfluous or insignificant. They must be taken as having some meaning and effect. Their effect is to ensure the ‘construction industry’ as defined is not merely a list of all the possible individual permutations that result from combining the activities listed in subpar (a) with the places, things or subject matters listed in (i) to (xviii). Indeed, as Buss and Murphy JJ observed in PIM IAC at [4] and [13], the definition sets out three industries: the industry in subpar (a), the industry in subpar (b) and the industry in subpar (c). The individual elements of the definition should be viewed as sketching out the limits of the spheres that are, in aggregate, the ‘construction industry’.
136 To view the definition otherwise would be inconsistent with the concept of an employee being engaged ‘in’ the industry. To be ‘in’ an industry is to be located within a space, or a sphere. An employee cannot be ‘in’ something that is merely a combination of their own work activity done to a subject matter.
137 This point is perhaps most plainly illustrated by rephrasing the definition of ‘employer’ as if ‘construction industry’ was simply an activity included in the definition done to a subject matter included in the definition and omitting the words ‘the industry of’:
…[a person] who or which engages persons as employees in … [carrying out on a site the construction of buildings]…
138 Grammatical problems aside, it is immediately apparent from this exercise, that it is improbable that an employee could ever be engaged in carrying out the construction of buildings. Employees are engaged in work that contributes to the construction of buildings: by excavating and levelling, or laying a foundation, or constructing walls or roofing, for example. But no single employee, however highly skilled and qualified, is likely to undertake the activity of construction of buildings as their work for an employer.
139 Contrast this exercise with the effect that inserting the words ‘the industry of’ has for the meaning of ‘employer’:
…[a person] who or which engages persons as employees in the … industry [of carrying out on a site the construction of buildings]…
140 The words ‘the industry of’ in the definition of ‘construction industry’ have a role to play. That role is not to expand the definition beyond the elements set out in subpar (a), but to give the definition multidimensional content: the space or sphere within which an employee’s work can be within.
141 In both AustAmec and PIM IAC, when describing the definition of ‘construction industry’, the first component of the definition is referred to as ‘activities’. On the other hand, when considering whether an employee is ‘in’ the industry, the term ‘work performed’ by the employee is used. This reveals a distinction being drawn between the activities in the definition of ‘construction industry’ and the work performed by an employee.
142 The activities listed in the ‘construction industry’ definition must obviously and as a matter of common sense, involve myriad steps, processes and tasks. The activities are done to or for the subject matters listed in subpars (i) to (xviii) of the definition. The work done by an individual employee, on the other hand, are not the activities listed, but part of the steps, processes and tasks that, usually in combination with a host of other steps, processes and tasks, in aggregate, amount to the activity of construction, maintenance, repairs etc.
143 Accordingly, an employee need not themselves be engaged to do something that is described as construction, maintenance, repairs, etc, to be engaged ‘in the construction industry’. Rather, an employee must be doing work that is part of the steps, processes and tasks that amount to those activities. If doing such work, the employee is ‘in’ the construction industry.
144 Although not expressed in this way in AustAmec or Wallis, it is consistent with the effect of the way in which the analysis was approached in both decisions. The established and expressed principle is that the question involves an assessment as a matter of fact and degree as to whether an employee is engaged ‘in the construction industry’. An employee need not necessarily themselves do an activity that can be described as construction, maintenance, repairs, etc to be so engaged.
145 For completeness, I do not agree with MyLeave’s contention that it is enough for an employee to be performing the work of a prescribed classification of a prescribed industrial instrument in order to find the employee is engaged ‘in the construction industry’. Most obviously, this formulation is not found anywhere in the language of the Act. The fact that an employee is performing such work may mean the employee is engaged ‘in the construction industry’ as the result of applying the correct test. For example, if the classification is bricklayer, and the employee is laying bricks on a site for the purpose of the construction of a building, then the employee will be engaged ‘in the construction industry’. But that is the result of the application of the test as properly articulated, that is, that laying bricks is a step or task that is part of the construction industry.
146 Another reason why MyLeave’s contention must be rejected is that, while s 3(4) of the Act refers to the Construction Industry Portable Paid Long Service Leave Regulations 1986 (WA) prescribing industrial instruments ‘with respect to employment in the construction industry’, an industrial instrument may be prescribed which has a scope that includes all or part of the ‘construction industry’ as defined, but is also beyond the ‘construction industry’ as defined. In other words, s 3(4) does not require total correspondence or alignment between the scope of the prescribed industrial instruments and the ‘construction industry’ as defined.
147 In conclusion:
(a) AustAmec establishes authoritatively that the correct meaning of ‘in the construction industry’ does not require that an employee must themselves be doing the activities listed in the ‘construction industry’ definition. The reasoning in Wallis is consistent with AustAmec in this regard; and
(b) the ordinary and natural meaning of ‘in the construction industry’ means that the employee’s work that the employee is engaged to perform for the employer is part of the steps, processes or tasks that, are or in combination with other steps, processes or tasks, amount to, the ‘construction industry’ as defined.
Is Mr Giglia’s work in the roadworks industry?
148 The parties agree that the carrying out of roadworks is a part of the ‘construction industry’ as defined. There is also no dispute the vast majority of Mr Giglia’s work is performed around and for roadworks. What is left for me to assess, in light of my conclusions above, is whether, as a matter of fact and degree, the evidence establishes that Mr Giglia’s work as a Traffic Controller is part of the steps, processes or tasks that, together with other steps, processes or tasks amount to the industry of roadworks.
149 The following assessment is limited to Traffic Controllers’ work when it is associated with roadworks. The present application concerns the position of ContraFlow in respect of Mr Giglia only. Mr Ferrell’s evidence was that Mr Giglia’s duties are typical of all Traffic Controllers employed by ContraFlow. However, that evidence does not allow me to draw any conclusion as to the extent of any other Traffic Controllers’ involvement in roadworks, as opposed to, for example, traffic management at festivals and events.
150 Limiting the assessment, then, to roadworks, the focus of Traffic Controllers is managing traffic on worksites to ensure the safety of public road users and construction workers. Traffic controllers use a variety of methods to direct vehicles and pedestrians on, near or adjacent to roads. They use and position signs, bollards and barriers, and operate Portable Traffic Control Devices.
151 Traffic Controllers are not required to have knowledge of ‘the specifics’ of the scope of roadworks that are occurring on site. There is no requirement for them to have skills in or knowledge of the methods employed to carry out roadworks. To the extent that their role is to facilitate safety on site, it is directed at the risks posed by vehicles and traffic using the road, rather than risks arising out of the roadworks themselves.
152 Traffic Controllers do not ordinarily interact with the roadworks crews in relation to operational matters. Their daytoday work related interactions are with other Traffic Controllers and their shift manager or supervisor. However, there may be exceptional situations in which they must communicate with construction workers, emergency response teams, Main Roads WA or Local Government Authority personnel.
153 Traffic Controller’s involvement in a roadworks project may be intermittent, limited to implementation of temporary traffic management in periods when barrier systems are being erected, decommissioned or realigned. Being intermittent does not detract from whether it is a step in the roadworks process. The grading of a road may also be for a short period in the totality of the construction of a road, but that does not make it less a part of the construction.
154 The evidence before the Commission concerning the prestart meetings which Traffic Controllers are required to attend is elucidating in relation to the relationship between traffic control work and roadworks. The purpose of the pre-start meetings is to check accreditations, to brief Traffic Controllers about the scope of the roadworks taking place, and communicate any changes in the scope of work to the extent that they impact on traffic management. I accept that, within the ContraFlow workforce, representatives of the contractors undertaking the roadworks will not ordinarily attend prestart meetings.
155 As Mr Veal explained, communication to Traffic Controllers about the nature of the scope of works scheduled for the day is helpful, not to the roadworks process, but rather to the traffic management process. That is, it helps Traffic Controllers understand how the work will impact road users, not how road use will impact roadworks.
156 The regulatory environment in which roadworks are carried out is also telling of whether traffic control work is in the construction industry. The effect of the evidence is that before any roadworks are carried out, an approval process must be undertaken, which involves the submission of a TMP.
157 While clearly roadworks can be undertaken without the involvement of the work of Traffic Controllers, wherever a TMP does require Traffic Controllers to do traffic control work, that work becomes a necessary condition of the roadworks occurring. It is part of the process of roadworks being carried out, in the sense that it is the fulfilment of a condition to which the approval of roadworks is attached.
158 This theme is best illustrated at 4.2.5 of the Code, extracted above at [62], which expressly states that the implementation and operation of traffic management is considered part of the roadworks.
159 While Traffic Controllers may not themselves interact with the construction or roadworks crews, their shift manager or supervisor does. Information is passed on to Traffic Controllers about the scope of the roadworks, and activities of the roadworks crews, via the shift manager or supervisor. The traffic control and roadwork crews do not work in complete isolation from each other. Nor do they work without regard for what each other is doing. To take an obvious example, if a road construction crew were ready to grade a different section of road, the Traffic Controllers could not continue to direct traffic in their present location, but naturally move their activities to the area where the grading activities are to be carried out.
160 It is also significant that the contractor undertaking roadworks must keep records relating to the approved TMP. This is evidence of the integration between TMP processes and the construction processes.
161 There is, of course, a close physical and geographical association between Traffic Controller’s work and the roadworks that they provide traffic management for. The presence of Traffic Controllers on a road is a visible signal to the lay user of a road that roadworks are occurring, unless there is some other obvious indication of an event, emergency or other cause for traffic management.
162 Finally, the work of Traffic Controllers is a fundamental element of the management of site risks. As the Code recognises, construction work on or near roads is high risk. Main Roads WA classifies interaction with live traffic as a ‘critical risk’. That it plays a significant role in ensuring the safety of both road users and construction workers places it very centrally in the industry of carrying out roadworks. Site safety cannot be regarded merely as a service to the roadworks industry. Rather it should be seen as an integral part of carrying out roadworks, and an integral step in that process.
163 In the final assessment, the work of Traffic Controllers must be considered to be part of the steps, processes and tasks that, in combination with other steps, processes and tasks, amount to the construction, reconstruction, maintenance of or repairs to roads. ContraFlow therefore engages Mr Giglia in the construction industry for the purpose of the definition of ‘employer’ and ContraFlow is an ‘employer’ for the purpose of the Act.
164 This means that MyLeave’s decision should be affirmed.
165 I should make it clear that my conclusion that ContraFlow is an ‘employer’ in respect of Mr Giglia does not mean that it is an ‘employer’ under the Act in respect of all its employees, or indeed all of its Traffic Controller employees. Whether ContraFlow is an ‘employer’ of any other employee will depend on the nature of the individual employee’s work and their degree of involvement in the ‘construction industry’.
Alternative Route One: Is Mr Giglia engaged in the s 3(1)(a)(xvi) industry?
166 Given my conclusion that Mr Giglia is employed ‘in the construction industry’ as defined by reference to subpar (a)(ii) of the definition of ‘construction industry’, it is not strictly necessary for me to deal with MyLeave’s alternative arguments. I will nevertheless set out my provisional views.
167 The parties paid scant attention to MyLeave’s alternative argument that ContraFlow was an employer for the purpose of the Act’s definition because Mr Giglia was engaged in the construction industry as defined by s 3(1)(a)(xvi) or s 3(1)(a)(xvii).
168 ContraFlow submitted that the ‘works’ for the purpose of (xvi) are the roadworks, and a Traffic Controller performs ‘works’ for the use of roadworks.
169 As to subpar (xvii), ContraFlow says that Traffic Controllers perform works for the preparation of sites at which roadworks are carried out, those works being performed by establishing and maintaining the traffic management system or plan.
170 Counsel for ContraFlow then also submitted that the use of the word ‘works’ is not defined as being works of the kind referred to, and that ‘works’ in these subparagraphs simply means undertaking some form of work. In other words, the ‘works’ need only be the work undertaken by the employee in the prescribed classification as part of the preparation of sites for construction work.
171 No attempt was otherwise made to point to the particular elements of the bundled up, multifarious listings in the definition that would apply in this case, nor to argue why any or all do or do not apply. I can sympathise with the inclination to avoid an attempt to comprehensively step through the elements of these parts of the ‘construction industry’ definition. The circularity and tendrillar parts are nightmarish.
172 With some foreboding, I repeat the relevant parts of the definition:
construction industry means the industry —
(a) of carrying out on a site the construction, erection, installation, reconstruction, reerection, renovation, alteration, demolition or maintenance of or repairs to any of the following —
…
(ii) roads, railways, airfields or other words for the passage of persons, animals or vehicles; and
…
(xvi) structures, fixtures or works for use on or for the use of any buildings or works of a kind referred to in subparagraphs (i) to (xv); and
(xvii) works for the preparation of sites for any buildings or works of a kind referred to in subparagraphs (i) to (xvi); and
…
173 I do not accept ContraFlow’s afterthought submission that ‘works’ in these parts of the definition means the work that an employee performs to satisfy the relevant industrial instrument classification, that is, traffic control work. The word ‘works’ is used frequently throughout the definition of ‘construction industry’. In the context in which it is used, it refers to things that are the product of work or created by work. This is apparent because:
(a) The word is used either before a purpose is described, such as ‘works for the generation, supply or transmission of electric power’ or following references to specific things: ‘roads, railways, airfields or other works’. Where it is used following reference to specific things, the ejusdem generis principle applies, so that the works are things of a like kind. Relevantly here, like roads, railways, arifields, structures, or fixtures, etc.
(b) As Scott CC observed in Thompson v The Construction Industry Long Service Leave Payments Board 2016 WAIRC 00054; (2016) 96 WAIG 144 at [53], the first part of the definition refers to activities performed ‘of’ and ‘to’ the structure or works. These connectors make no sense if ‘works’ refers to the activity an employee performs.
(c) The definition also uses the word ‘work’. In subpars (c) and (d) the phrase ‘carrying out of work performed’ and ‘carrying out of any work’ is used. In these instances, it is clear that what is referred to is the performance of work, rather than the product of work. Had the legislature intended to mean the work an employee performs, it would have used the word ‘work’, consistent with its use in these other places, rather than the word ‘works’.
174 MyLeave referred the Commission to a decision of the Victorian Industrial Relations Commission in Re Appeal by Shop Fitting and Building Services (Vic.) Pty. Ltd. (1989) 31 AILR 252. The case concerned an appeal against a decision that assessed that an employer was liable to make payments under the now repealed Victorian Construction Industry Long Service Leave Act 1983. That Act contained a definition of ‘construction industry’ in similar terms to the Act (but omitting reference to ‘on a site’) and which included:
(xvi) Structures fixtures or works for the use of any buildings or works of a kind referred to in subparagraphs (i) to (xv); and
(xvii) Works for the preparation of sites for any buildings or other works of a kind referred to in subparagraphs (i) to (xvi); and…
175 At [16], Marshall P observed:
It is a general rule that a word used in the same section of an Act, and particularly when it is used in a paragraph of a section, is given the same meaning. It seems to me that what is envisaged by the word “works” in sub-paragraph (xvi) is some minor, or subsidiary or complementary works undertaken in the context of associated or larger works. In my opinion, the manufacture of the various units in the present case are not “works” within the meaning of the definition of “construction industry.”
176 As to the words “for the use of any buildings or works”, the Marshall P stated at [18]:
…I have no intention in this case of trying to explore the extent of the meaning of the phrase, if indeed it is capable of having some meaning. All that I am prepared to say is that, to take one of Dr Jessup’s illustrations, a verandah (or perhaps an awning) might be something that is covered by the phrase…
177 In PIM Full Bench at [45] and [48], Kenner SC (as he was then) briefly referred to subpar (xvi) of the definition as ‘incidentally’ involving buildings, explaining that lifts and escalators are examples of the things that might fall within subpar (xvi) of the definition, if not for the exclusion in subpar (e).
178 As I have concluded that the reference to ‘works’ in subpar (xiv) does not mean traffic control work, but rather means, relevantly, roads, this part of the definition of ‘construction industry’ does not assist MyLeave in reaching its desired destination. Joining subpars (ii) and (xvi) results in the ‘construction industry’ including, relevantly:
carrying out on a site the construction, reconstruction, erection, installation, alteration, maintenance of or repairs to roads and works for the use on or for the use of roads.
179 Traffic Controllers place signs, cones, bollards and temporary barriers in location on sites in accordance with TMPs. They also operate Portable Traffic Control Devices. Those things are neither roads, nor ‘works’ for the use of roads. Like Marshall P, I struggle to conceptualise what works a road might use. Perhaps a supporting structure such as a bridge or a traffic calming device. Whatever the phrase means, signs, temporary barriers and Portable Traffic Control Devices are not ‘works’ in the correct sense of that word.
180 Mr Giglia is not engaged in the industry of carrying out any activity of or to the works referred to in subpar (xvi).
Alternative Route Two: Is Mr Giglia engaged in the s 3(1)(xvii) part of the construction industry?
181 A similar roadblock is reached in relation to subpar (xvii).
182 Consistent with what I have said in relation to subpar (xvi), the relevant ‘works of a kind referred to in subpars (i) to (xvi)’ are roads. Subparagraph (xvi) refers to the thing, not the activity on the thing. It does not refer to ‘roadworks’.
183 This part of the definition of ‘construction industry’ was briefly considered by Wood C in Welldrill at [24]. Commissioner Wood described the subparagraph as covering ‘preparation of a site for that purpose’; where ‘that purpose’ is constructing, erecting or installing a drilling rig as per subpar (vi). He noted that the first part of the definition reads such that the construction, installation, or maintenance etc must apply to one of the items in the subclauses.
184 I understand Wood C to say the subparagraph stands alone as a part of the ‘construction industry’ and the preparation of sites for any of the things in (i) to (xviii) is enough. This proposition is appealing. It certainly avoids potential gridlock. The problem is that, on close analysis, it is at odds with the definition’s text. The structure of the definition is such that the first part, the activities listed in (a), applies to subpar (xvii), and the activities in subpar (xvii) must be performed to the items in the subclauses. It also does not heed the inclusion of the words ‘works for’ in (xvii).
185 Commissioner Wood’s approach is at odds with the Full Bench’s description in PIM Full Bench of the structure of the definition of ‘construction industry’. Senior Commissioner Kenner (as he was then) says at [45]:
…the structure of the definition in s 3(1)(a) comprises a range of activities set out. These activities are all expressed disjunctively. They include, “maintenance of or repairs to”…There follows in pars (i) – (xviii) a range of structures and works upon which the activities in the first part of the definition are to be performed… (emphasis added)
186 In the same paragraph, Kenner SC (as he was then) also notes that subpars (xvi) and (xvii) incidentally involve buildings.
187 The joint judgment of Buss and Murphy JJ in PIM IAC at [5][6] describes subpar (xvii) as ‘…extend[ing] the scope of the definition of ‘construction industry’ in subpar (a) by adding, in effect, reference to the preparation of such sites for any buildings or infrastructure works referred to in subpars (i)  (xvi)…” where the site is the location at which the activities mentioned in subpar (a) take place in respect of the buildings and other infrastructure works referred to in the subparagraphs. Unlike Wood C, their Honours, with respect, correctly do not suggest subpar (a) should be incorporated in (i) to (xvi) before applying (xvii). Rather, they say only that (xvii) extends the definition in subpar (a). Nor does the description of the effect of subpar (xvii) give a meaning to ‘works’ that equates it to performing work. Their Honour’s description is consistent with ‘works’ being things such as buildings, structures, roads, etc.
188 So, the question in this instance is whether Mr Giglia’s work is in the industry of carrying out any construction industry activity for or to ‘works’ for the preparation of sites for roads.
189 It might be that the semipermanent barrier systems installed on sites of major roadworks, which Ms Costello and Mr Veal each described in their evidence, fall within the description ‘works’ for the preparation of sites for roads. This would mean that employees who construct, erect and install those barrier systems would be engaged ‘in the construction industry’ as defined under (xvii). However, the evidence was that Traffic Controllers do not construct, erect, or install these barrier systems.
190 MyLeave has not identified any other works, in the correct sense of that word, which the evidence shows Mr Giglia performs any work on, such that he could be said to work in the ‘construction industry’ under (xvii).
Result
191 The reviewable decision is affirmed.