Archive: Dec 6, 2019, 12:00 AM

Applicant is an employer in the construction industry

An employer whose employees do maintenance and repairs of established and operating plant, equipment and structures, on the premises of clients, which include mines and processing plants, engages these employees "on a site" or "on site", for the purposes of the definition of "construction industry" in an Act providing for a portable paid long service leave scheme.

The Commission has answered preliminary questions relating to an application for a review of a decision of the Construction Industry Long Service Leave Payments Board (the Board) that required the applicant to register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act). 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'.

Chief Commissioner Scott found that 'on a site', when read in context, meant the site which the works listed in the Act's definition of construction industry are performed, that is the site at which they are constructed, erected, repaired, installed, reconstructed, re-erected, renovated, altered, demolished, or maintained or repaired, and, that work performed away from where these works are located is not construction work. The term "construction industry" under the Act is not limited to building or construction sites where new buildings or structures are being built. Therefore, employees may perform work 'on a site' if this was at a location away from the employer's premises.

An employer may be exempted from the scheme set up by the Act if the employer is "not substantially engaged" in the "construction industry" as defined in the Act. In this case, although the employer said that it was engaged in providing maintenance services to the mining and resources industries, the Commission found that it was substantially engaged in the industry covered by the Act, because of the breadth of the definition of construction industry.

The decision can be read here