Applicant not an employer who engages employees in the construction industry
- Created: 11 December 2019
The Commission has upheld an application that sought the review of a decision of the Construction Industry Long Service Leave Payments Board (the Board). The Board's decision required that the applicant register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act), an Act providing for paid long service leave to employees engaged in the construction industry. The applicant argued that they should not be obligated to register as an employer with the Board because they do not engage employees 'in the construction industry' but rather engage technicians under the Telecommunications Services Award 2010 (Cth) (the Award).
The obligation on an employer to register under the Act does not depend on the employer being engaged in the construction industry, but instead on the employer employing persons as employees who are engaged in the construction industry.
To determine whether the applicant employs employees in the construction industry, Senior Commissioner Kenner considered this question in two steps. Starting by addressing the second of the two steps, the Senior Commissioner was satisfied that the work of the applicant's employees can be characterised as work in the construction industry because it fell within the meaning of "telegraphic" contained in the Act's definition of construction industry. Returning to the first step, that the applicant's employees are employed in a classification of work in one of the prescribed industrial instruments under the Construction Industry Portable Paid Long Service Leave Regulations 1986 (WA) (the Regs), the Senior Commissioner considered that this step required him to be satisfied that the applicant's employees are employed in a classification of work referred to in the awards contained in Schedule 1 to the Regs. The Senior Commissioner considered the definition of employee in the Act and that it required that the applicant's employees have more than a passing association with the work identified in the list of at least 11 classifications from nine awards that were cited by the respondent as possibly applying to the applicant. The Senior Commissioner concluded that no classifications in any of the awards presented by the respondent covered the work performed by a "telecommunications technician" or "telecommunications trainee" as described and defined in the Award.
The Commission upheld the application to review the respondent's decision after the Senior Commissioner was not satisfied that the applicant was an employer, as defined in the Act, who engaged employees in the construction industry.
The decision can be read here.