The Commission has affirmed a Construction Industry Long Service Leave Payments Board decision to require contributions to a traffic controller, finding they were engaged in the construction industry. 

Background

The respondent determined the applicant was liable for an employee’s long service leave contributions under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (‘the Act’). The applicant specialised in traffic management, and their business involved designing, planning for, and directing vehicle and pedestrian traffic to ensure public safety around roadworks.

The applicant sought review of the respondent’s decision under s 50(2) of the Act.

Contentions

The applicant contended that for the purposes of the Act it was not an employer, and it did not engage persons as employees in the construction industry, and that finding the employee was engaged in the construction industry required them to actively do construction, maintenance, and repairs of roads. The respondent contended a correct construction of the Act required something less than engagement in the above activities which were listed in the definition of ‘construction industry’ in the Act.

Both parties accepted; the employee was employed by the applicant, did not construct, maintain, or repair roads, and worked where roadworks took place and at ‘sites’ within the ‘construction industry’.

Findings

Senior Commissioner Cosentino found s 50(2) and 50(3) of the Act permitted it to review the respondent’s decision and required it to inquire into and affirm, vary, or set aside the decision. The Senior Commissioner found no parties had an onus of proof and it was required to to assess the facts and apply the Act’s provisions.

The Senior Commissioner found the employee was in a work classification of one of the industrial instruments under the Act, and that being engaged in the construction industry required that the employee’s work can be characterised as in the industry. The Senior Commissioner noted earlier Supreme Court and Commission decisions and found that engaged ‘in the construction industry’ did not mean performing work precisely listed as activities in the ‘construction industry’, and that characterising the employer as operating in another industry did not disqualify work from being in the ‘construction industry’. The Senior Commissioner found the employee’s work as a traffic controller was in the construction industry as a part of the steps, processes, or tasks that, together with other steps, processes or tasks amounted to road construction, reconstruction, maintenance, or repairs. The Senior Commissioner found that the applicant employed the specific employee in the construction industry for the purpose of the ‘employer’ definition and that the applicant was an ‘employer’ for the purpose of the Act.

The Senior Commissioner considered two alternative arguments and found the employee was not engaged in the industry of carrying out any activity of or to the works referred to in subpar (xvi), and that they could not he could be said to work in the ‘construction industry’ under (xvii) of the Act.

The Senior Commissioner affirmed the reviewable decision of the respondent.

The decision can be read here.