100103816

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES BROWN & ROOT ENERGY SERVICES PTY LTD

APPLICANT

 -v-

 CONSTRUCTION INDUSTRY LONG SERVICE LEAVE PAYMENTS BOARD

RESPONDENT

CORAM COMMISSIONER J H SMITH

DELIVERED THURSDAY, 8 FEBRUARY 2001

FILE NO BOR 7 OF 2000

CITATION NO. 2001 WAIRC 02000

_______________________________________________________________________________

Result Applicant an employer in the "construction industry" within the meaning of the Construction Industry Portable Paid Long Service Leave Act 1985

Representation

Applicant Mr C Milne as agent

Respondent Ms Saraceni as counsel

_______________________________________________________________________________

DETERMINATION

1          Pursuant to an application made under s.50 of the Construction Industry Portable Paid Long Service Leave Act 1985 ("the Act") a Board of Reference constituted by a single Commissioner is constituted under s.48(8), (9), (10), (11), (12) of the Industrial Relations Act 1979, to determine a claim arising out of a requirement that Brown & Root Energy Services Pty Ltd ("the Applicant") register under the Act. 

2          Section 30(1) of the Act provides, inter alia, that every body corporate that is an employer in the construction industry (whether or not it carries on any other business) shall register as an employer under the Act.

3          In a letter to Brown & Root Engineering Pty Ltd dated 26 May 2000 the Chief Executive Officer of the Construction Industry Long Service Leave Payments Board ("the Board") advised that it was the Board's view that Brown & Root Engineering Pty Ltd is an employer within the construction industry and accordingly is required to register in accordance with s.30 of the Act.

Background

4          On 19 October 1995, the Applicant entered into a contract to supply and perform all work associated with the operation, maintenance and support services for the Naval Communication Station-Harold E. Holt ("the Communication Station") as specified in the Statement of Requirement contained in Attachment A of the contract ("the contract").

5          The Applicant is a registered corporation (ACN 009 091 105) whose registered office is at Perth in Western Australia.  At the time of entering into the contract the Applicant's name was Dawson Group Pty Ltd.  Dawson Group Pty Ltd is wholly owned by Brown & Root (Australia) Pty Ltd.  In about 1996, the Applicant notified the Australian Securities and Investment Commission of a resolution to change the Applicant's company name from Dawson Group Pty Ltd to Brown & Root Engineering Pty Ltd. 

6          In 1997, Brown & Root (Australia) Pty Ltd acquired Kinhill Pty Ltd.  The Brown & Root company then had two streams of business in Australia.  One being oil and gas.  In 1999, Kinhill Pty Ltd changed its name to Brown & Root Services Asia Pacific Pty Ltd.  Further at about the same time the Applicant changed its name from Brown & Root Engineering Pty Ltd to Brown & Root Energy Services Pty Ltd. 

7          The Applicant took over the oil and gas industry contracts from Brown & Root (Australia) Pty Ltd and all work that was not associated with the oil and gas industry was transferred from the Applicant to Brown & Root Services Asia Pacific Pty Ltd on 24 June 2000. 

8          Mr Milne informed the Commission that following the assignment of the contract and transmission of business from the Applicant to Brown & Root Services Asia Pacific Pty Ltd, the Applicant's employees were transferred to Brown & Root Services Asia Pacific Pty Ltd and there has been no change in the work carried out by the latter at the Communication Station.  It was clear from the submissions made on behalf of the parties that this determination will determine whether Brown & Root Services Asia Pacific Pty Ltd are required to register under s.30 of the Act.

9          At the time the application was made the Applicant employed approximately 300 persons in consulting engineering and approximately 120 employees in maintenance engineering.  The only project in dispute in this matter is the contract at the Communication Station at Exmouth in Western Australia. 

10       The Communication Station provides communication services for the Navies of the United States, the Commonwealth of Australia and other allied nations.  The main business of the Communication Station is to transmit very low frequency and high frequency radio signals to naval vessels. 

11       The Communication Station comprises three major areas.  The first area contains a very low frequency transmitting site, power plant, a fuel farm and a navy pier.  The transmitters and the very low frequency antenna array cover approximately 405 hectares.  The second area contains the station headquarters and the high frequency transmitter site.  The third area contains a high frequency receiver site which has been closed and is in caretaker status. 

12       Most of the transmitting facilities were constructed in the late 1960s.  The only construction since that time was a 10-bed hospital in the late 1960s, a gymnasium in the early 1970s and motel style accommodation in the mid 1970s. 

13       Attachment A of the contract provides that the Statement of Requirement comprises of Annexes 1 to 20.  The services required to be provided can be broadly summarised as follows:

Maintenance repairs;

Janitorial services;

Grounds and ground structures maintenance;

Pest control;

Waste collection and disposable services:

Power generation and distribution facilities;

Auxiliary power and portable machinery;

Water;

Salt water wells and sewerage systems;

Emergency and fire protection services; and

The operation and maintenance of petroleum storage facilities and the associated distribution system.

14       Mr Robert Mummery, the Operations, Maintenance, Logistics Manager for Brown & Root Services Asia Pacific Pty Ltd, gave evidence that maintenance work is the major activity performed at the Communication Station.  Further that following maintenance activities were carried out at the Communication Station by the Applicant and are now carried out by Brown and Root Services Asia Pacific Pty Ltd in accordance with the express terms of the contract.

(a) INACTIVE FACILITIES

There are approximately 30 to 35 buildings which are inactive facilities classified as inactive facilities and in caretaker status at the Communications Station (See Annex 1-Appendix 4).  Inspections are done to determine whether the vacated facilities are deteriorating or not.  For example, the chilled water systems are inspected for leaks, so too are the portable water systems and sewerage treatment systems. In addition the buildings are inspected for deterioration and for pests.  When deterioration is found repairs are undertaken to restore the buildings and structures to a safe condition. 

When repairs are required, depending upon the nature of the work required the work is carried out by persons employed as metal tradespersons, pest control persons or building tradespersons. 

Mr Mummery gave evidence that since the Applicant entered into the contract one or two minor buildings have been demolished by the Applicant's employees and those employees were employed in classifications applicable to building trades.

(b) PUBLIC WORKS FACILITIES MAINTENANCE AND REPAIR

Annex 5 of the contract requires the provision of maintenance, repair, alteration and construction of all "active" buildings and structures and installed equipment at the Communication Station.  Further, it is also a requirement that maintenance, repair, replacement and installation of all appliances be provided including but not limited to: air conditioners; refrigerators; ice machines; and other non-installed equipment.  Although repair is not defined in the contract, maintenance is defined in Clause 3.4 of Annex 5 as "the recurring day-to-day, periodic or scheduled work required to preserve or restore a real property facility to such a condition that it may be effectively utilised for its designated purpose.  The term includes work undertaken to prevent damage to a facility that otherwise would be more costly to restore and includes repair by replacement when necessary." 

Mr Mummery testified that inspection, maintenance, repairs constitutes the majority of the work undertaken.  He said however that alterations sometimes occur because equipment fits and obsolescence cause something to be altered. 

He testified no construction work is carried out and generally no installation of equipment was carried out by the Applicant.  Further that if any installation of equipment is required it is carried out by subcontractors to Boeing Pty Ltd and other main contractors at the Communication Station.  Although he said that minor installation work was carried out by qualified tradesperson employed by the Applicant, including plumbing and pipe fitting by qualified plumbers.

(c) WHARF/PIER

Remedial work was and is carried out to the wharf/pier including minor repairs to corrosion and electric light replacement and to other structures of that nature by employees. 

(d) MAINTENANCE AND REPAIR WORK TO ANTENNAS AND TOWERS

The low frequency antenna is approximately one and half miles in diameter and a height of 900 feet.  It has in its antenna a length of approximately 70 miles of cabling.  Riggers, scaffolders and antenna maintainers are employees who carry out preventative maintenance to the antennas and the towers.  Employees engaged as painters also undertake painting to the tower.  Annex 6 of the contract requires the provision of preventative maintenance and inspection of antenna, antenna systems, grounds, structures, cables and all support and auxiliary equipment for mechanical and structural deterioration.  The program of maintenance includes an inspection in maintaining wood poles for deterioration, infestation by termites and other pests and moisture in pole caps; inspect and maintain rotatable log periodic antennas; tower painting and satcom dish and pedestal painting. 

(e) GROUNDS AND GROUND STRUCTURES MAINTENANCE

Annex 8 requires the removal of obstructions to surface drainage, erosion control, watering, grass cutting, edging, trimming and pruning of shrubs and trees.  It is also a requirement to maintain and repair asphalt and gravel roads and control vegetation growth on road shoulders; and to provide maintenance and incidental repairs to fences, including painting and other repairs.  Footpaths and kerbs are also to be maintained and repaired. 

Mr Mummery testified that the gravel roads which surround the premises of the antenna systems require maintenance on a regular basis as they are regularly washed away by the rain and that the work is carried out by employees engaged as equipment operators and trades assistants.  He also said that if significant damage is done to a asphalt road that work is carried out by a subcontractor experienced in road repairs.  In relation to sidewalks and footpaths, Mr Mummery testified that about three or four kilometres of sidewalks and footpaths are made of concrete and that in the past five years repair or maintenance to those structures have not been necessary.

(f) ELECTRICAL POWER PRODUCTION

Annex 12 required the Applicant to operate and maintain all equipment related to the electrical power production such that an uninterrupted supply of power is available to meet the Communication Station's requirements.  Preventative maintenance is required such as, engine and generator overhauls, services on engines and service and maintenance of auxiliary plant.  The Applicant was also required to carry out routine tests and inspections and provide a repair service for all equipment.  Mr Mummery testified that the Applicant's employees undertook this work routinely throughout the year by appropriately qualified employees. 

Pursuant to Annex 13, work is also required to operate and maintain the electrical distribution system and ensure that the power station requirements are met.  To do so the development and execution of periodic maintenance to the power plant, all transformer stations, street lighting system and associated distribution lines and manholes is required. 

(g) MECHANICAL PLANT

Under Annex 14 auxiliary and portable machinery units are required to be maintained.  Mr Mummery testified there are series of auxiliary and portable machinery on site such as pumps (which are used when flooding occurs), portable welding plant and portable air‑compressor plant and the like. 

Annex 15 requires the operation and maintenance of the fixed central mechanical plant.  Mr Mummery testified the central mechanical plant supplies chilled water, air conditioning, refrigeration and compressed air. 

(h) WATER SYSTEMS

Annex 16 requires the operation of the entire water system including fresh water wells, reservoirs, pumps, water treating equipment and interconnecting pipes, valves, fittings and other water distribution equipment associated with the systems to meet the Communication Station's usage demands.  Part of the contractual obligations require the maintenance and repair of the water treatment plant particularly to maintain and exercise on a periodic basis, all system pumps, valves, storage tanks, chlorinators, chemical feeders, electrodialysis plants and appurtenances.  Further the maintenance of water meters, fresh water wells and cleaning and maintaining of storage tanks and the repair of leaks and all parts of the watering systems is required.  Pursuant to Annex 17, the salt water well system which supports the very low frequency cooling system is required to be maintained.  Part of those duties requires the performance of periodic maintenance repair of wells, pumps, motors and the distribution system.  Mr Mummery testified that the salt water well system cools the transmitter building.

(i) SEWERAGE SYSTEMS.

Pursuant to Annex 18 the maintenance and operation of the sewerage system for the Communication Station is required. 

(j) OPERATION OF PETROL OIL AND LUBRICANT SYSTEM

Pursuant to Annex 20 the operation, maintenance and repair of pumps and accessory equipment used for the receipt, storage, and issue of petroleum products including the actual loading and off-loading of petrols, oils and lubricants, is required.

Terms and Conditions of Employment

15       At all material times the terms and conditions of employment of the employees employed by the Applicant at the Communication Station were regulated by a certified agreement in Print P9083, an agreement certified under s.170LT of the Workplace Relations Act 1996 (Clth) ("the certified agreement"). 

16       On 4 March 1998, Commissioner O'Connor made an order to certify the agreement.  His order provides that the certified agreement shall come into force from 3 March 1998 and remain in force until 17 January 2001.  The material clauses of the certified agreement are as follows:

"3. Incidence and Parties Bound

This Agreement applies to those employees, employed by, Boeing Australia Limited, Brown & Root Engineering Pty Ltd or Jennis & LeBlanc Communications Pty Ltd, who work in the classifications detailed in Schedule 1 in this Agreement, acting as a common enterprise at a single place of work being the Naval Communication Station Harold E Holt (NCS HEH) Exmouth hereafter known as "the base".

This Agreement shall be binding upon:

• The employers Boeing Australia Limited, Brown & Root Engineering Pty Ltd and Jennis & LeBlanc Communications Pty Ltd;
• The union (The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union), and
• All employees employed in the classifications detailed in Schedule 1 whether members of the union or not.

Schedule 1

4.         Supersession

Except as specifically provided below the terms of this Agreement shall cover exhaustively the subject matter concerned and exclude State law, Awards and Agreements.

From the date of operation of this Agreement the employers and their employees at the base are excluded from coverage of any other Award or Determination which might otherwise be binding.

Except as expressly provided for in this Agreement the provision of the Long Service Leave Act 1958 (WA), the WA Occupational Safety & Health Act (1984), the Workers Compensation and Assistance Act 1981 (WA) and the Industrial Training Act 1975 (WA) (the "Acts") as amended from time to time, shall have full effect and nothing in this Agreement shall operate to affect vary or exclude the operations of the Acts in so far as they apply to the work covered by this Agreement.

8.6       Long Service Leave

The provisions of the Long Service Leave Act 1958 (WA) are hereby incorporated in and shall be deemed to be part of this Agreement.  The employer shall contribute to the Construction Industry Portable Long Service Leave Scheme on behalf of all employees, subject to acceptance by the Board."

Issues in Dispute

17       Section 3(1) of the Act provides:

"In this Act unless the contrary intention appears –

'construction industry' means the industry –

(a)          of carrying out on a site the construction, erection, installation, reconstruction, re-erection, renovation, alteration, demolition or maintenance of or repairs to any of the following –

(i)                 buildings;

(ii)               roads, railways, airfields or other works for the passage of persons, animals or vehicles;

(iii)            breakwaters, docks, jetties, piers, wharves or works for the improvement or alteration of any harbour, river or watercourse for the purposes of navigation;

(iv)             works for the storage or supply of water or for the irrigation of land;

(v)               works for the conveyance, treatment or disposal of sewage or of the effluent from any premises;

(vi)             works for the extraction, refining, processing or treatment of materials or for the production or extraction of products and by-products from materials;

(vii)           bridges, viaducts, aqueducts or tunnels;

(viii)        chimney stacks, cooling towers, drilling rigs, gas-holders or silos;

(ix)             pipelines;

(x)               navigational lights, beacons or markers;

(xi)             works for the drainage of land;

(xii)           works for the storage of liquids (other than water) or gases;

(xiii)        works for the generation, supply or transmission of electric power;

(xiv)         works for the transmission of wireless or telegraphic communications;

(xv)           pile driving works;

(xvi)         structures, fixtures or works for the use on any buildings or works of a kind referred to in subparagraphs (i) to (xv);

(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;

(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 who is not substantially engaged in the industry described in this interpretation;"

18       The Board contends that the evidence adduced in these proceedings proves that at the material time the Applicant was an employer in the construction industry in that (within the meaning of s.3(1) of the Act), it carried out:

(a) on a site the … installation … maintenance of or repairs to …

(i)                 buildings;

(ii)               roads, … works for the passage of persons … or vehicles;

(iii)            … jetties, piers, wharves …;

(iv)             works for the storage or supply of water or for the irrigation of land;

(v)               works for the conveyance, treatment or disposal of sewage or of the effluent from any premises;

(xiii) works for the generation, supply or transmission of electric power;

(xiv) works for the transmission of wireless or telegraphic communications;

(xvi)        structures, fixtures or works for the use on any buildings or works of a kind referred to in subparagraphs (i) to (xv); and

(xviii) fences, other than fences on farms;

(b) of carrying out works on a site of the…installation, reconstruction, re-erection, renovation, alteration…of any buildings or works referred to above, for the fabrication, erection or installation of plant, plant facilities or equipment for those buildings or works.

19       The Board further contends that at the material time the Applicant engaged persons who fall within the definition of employee under the Act who are employees in the construction industry. 

20       An employee is defined in s.3(1) of the Act to mean:

"… a person who is employed under contract of service or apprenticeship in a classification of work referred to in a prescribed award relating to the construction industry that is a prescribed classification."

21       The Applicant contends that at the material time it was not an employer in the construction industry in that it did not carry out work of the kind described in the definition of "construction industry" within the meaning of s.3(1) of the Act, in particular the Communication Station is not a construction site.

22       The Applicant concedes that some of its employees at the Communication Station could be said to be engaged in a classification of work referred to in a prescribed award relating to the construction industry that is a prescribed classification within the meaning of the definition of employee in s.3(1) of the Act.  However it is contended on behalf of the Applicant that its employees were not engaged in the construction industry and that none of the prescribed awards prescribed under the Construction Industry Portable Paid Long Service Leave Regulations 1986 could apply to terms and conditions of employment of the Applicant's employees because of the operation of the terms of the certified agreement.  Further that in absence of the provisions of the certified agreement the provisions of Metal, Engineering and Associated Industries Award 1998 ("the Award") covered the employees' classifications of work.  It is also argued that the terms of the certified agreement and the Award are not instruments that cover construction work.

23       Notwithstanding the submissions made on behalf of the Applicant, it is conceded that the following classifications are classifications of work referred to in a prescribed award relating to the construction industry that is a prescribed classification:

Apprentice Electrician;

Apprentice Painter;

Carpenter;

Crane Operator;

Electrical Fitter;

Electrician;

Fitter;

Fitter/Turner;

Mechanical Fitter;

Painter;

Plumber;

Refrigeration/Air Conditioning Mechanic;

Refrigeration Mechanic;

Technician;

Tower Painter;

Trades Assistant;

Trainee Tower Painter;

Foreman;

Engine Driver;

Mechanic;

Welder; and

Plant Operator

Legal Principles

24       In Aust-Amec Pty Ltd t/a Metlab Mapel & SRC Laboratories and Others v Construction Industry Long Service Leave Payments Board (1995) 62 IR 412 ("Aust-Amec") Ipp J pointed out that the scheme of the Act covers a wider class of employees in the construction industry than employers.  At 413 he observed:

"… 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."

25       Further at 420 he stated:

"The requirement to register is, by s.30(1), imposed on an employer "in the construction industry (whether or not he or it carries on any other business)".  I have italicised the word "in" as it seems to me to have a narrower meaning that the words "relating to" which are contained in the definition of "employee".  The difference in wording is, in my view, significant.  The former phrase is of wider import that the latter.  This is an important guide to the construction of the Act on this question.  It indicates that the legislature intended that the obligation to register would be imposed on a more limited class of persons that those whose business merely relates to the construction industry.  It seems to me that the requirement to register is imposed only on employers, as defined, whose business can be classified as falling within the construction industry itself."

26       It is contended on behalf of the Applicant that s.3(1)(a) of the Act defines the "construction industry" to include maintenance or repairs only where the maintenance or repairs are carried out on a site where construction work is carried out. 

27       The definition is as Ipp J in Aust-Amec at 419 points out, complex.  However the construction suggested by the Applicant of the definition of "construction industry" is in my view erroneous.  The opening words of s.3(1)(a) are plain and unambiguous.  The opening words are plainly expressed as disjunctive, so that a "site" is to be construed as a place where any activities are carried out, that can be characterised as, construction, erection, installation, reconstruction, re-erection, renovation, alteration, demolition or maintenance of or repairs to any of the categories in subparagraphs (i) to (xviii) of s.3(1)(a) of the Act.

28       Further that although this issue was not directly raised in Aust-Amec, the construction contended on behalf of the Applicant is inconsistent with the reasoning of Ipp J in Aust-Amec.  At 420 Ipp J observed in relation to a number of plaintiffs who provide engineering testing and other testing and monitoring services for the mining industry:

"… the issue whether the plaintiffs are in the construction industry falls to be determined by reference to whether the work done by them, generally, is to be classified as "maintenance" as this term is used in the definition of construction industry."

29       Having considered all of the evidence in this matter it is clear that the Applicant at the material time carried out maintenance and repair to works within the meaning of subparagraphs (i)-(v), (xiii)-(xiv), (xvi) and (xviii) of s.3(1)(a) of the Act.  I am not however satisfied that it carried out installation work which can be described as installation work within the meaning of s.3(1)(a) or (b) of the Act.

Effect of Federal Instruments

30       Prima facie I am satisfied after having regard to all of the evidence that the Applicant was at the material time an employer who engaged persons who fall within the definition of employee within the meaning of s.3 of the Act.

31       However the question arises is whether the provisions of s.170LZ(1) of the Workplace Relations Act 1996, s.109 of the Commonwealth Constitution and the certified agreement have the effect to render inoperative the provisions of the Act.

32       Section 170LZ(1) of the Workplace Relations Act 1996 provides:

"Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency."

33       The question of inconsistency between a Federal award and a State law arises not because a Federal instrument is "a law of the Commonwealth" within the meaning of s.109 of the Constitution, but because it derives its force from such a law, namely the Workplace Relations Act (Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466; Ex Parte McLean (1930) 43 CLR 472; Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 per Barwick CJ at 243, Stephen J at 253, Aitken J at 274-5 and Wilson J at 282; Metal Trades Industry Association v. Amalgamated Metal Worker's & Shipwrights' Union (1983) 152 CLR 633 per Mason, Brennan and Deane JJ at 648 ("Metal Trades Case"); City of Mandurah v Hull (2000) 80 WAIG 4319; [2000] WASCA 216 per Anderson J at [21] and cases cited therein).

34       Direct inconsistency arises when the relevant laws collide in their operation: that is where both regulate the same subject, in such a way that one explicitly removes or modifies a right or obligation created by the other.  This includes, but is not limited to, situations where simultaneous obedience of the law is impossible  (Clyde Engineering v Cowburn; Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 and R v Loewenthal; Ex parte, Blacklock (1974) 131 CLR 338).

35       Covering of the field inconsistency arises where the Commonwealth law manifests an intent to regulate a particular subject exhaustively (Ex parte McLean).

36       The critical question in considering whether an inconsistency arises is: what is the conduct or matter with which the relevant Federal industrial instrument deals with (Metal Trades Case per Mason, Brennan and Deane JJ at 649).

37       It is rare that a Federal industrial instrument will evince an intention to exhaustively cover the field of employment.  The contract of employment is the most obvious illustration.  To the extent that it is not varied by an award, its obligations will ultimately derive from State law.  The question will often be whether the Award provisions are intended to supplement or modify rather than supplant State law (Metal Trades Case per Gibbs CJ Wilson and Dawson JJ at 642).

38       Paragraph 1 of Clause 4 of the certified agreement provides that: "Except as specifically provided below the terms of this agreement shall cover exhaustively the subject matter concerned and excludes State law, Awards and Agreements."  Paragraph 3 of Clause 4 provides that the provisions of the Long Service Leave Act 1958 (WA) shall have full effect and nothing in this agreement shall operate to affect, vary or exclude the operation of that Act in so far as it applies to the work covered by the certified agreement.

39       Although there is no specific reference to the Construction Industry Portable Paid Long Service Leave Act 1985 in the certified agreement, Clause 8.6 provides that the provisions of the Long Service Leave Act are incorporated and be deemed part of the agreement, further that the employer shall contribute to the Construction Industry Portable Long Service Leave Scheme on behalf of all employees, subject to acceptance by the Board.

40       Section 8 of the Long Service Leave Act provides that an employee is entitled to long service leave after 15 years service on ordinary pay in respect of continuous employment with same employer or transmittee.  Further after 10 years continuous service, on termination by death or for circumstances otherwise than by serious misconduct an employee is entitled pro-rata long service leave on the basis of 13 weeks for 15 years service.  Section 4(1) of the Long Service Leave Act defines an employee, inter alia, to include any person whose usual status is that of an employee.  Section 4(3) of the Long Service Leave Act provides that where a person is, by virtue of an enactment of the State, the Commonwealth or of another State or Territory entitled to, or eligible to become entitled to, long service leave at least equivalent to the entitlement to long service leave under the Long Service Leave Act, that person is not within the definition of employee in s.4 (1).

41       Under s.21 of the Act, a person registered as an employee is entitled to 13 weeks long service leave after completing 15 years service in the construction industry and 82/3 weeks after completing 10 years service in the construction industry subsequent to completing 15 years service in the construction industry.  Section 22(1) of the Act provides for payment of a lump sum after 10 years service if an employee terminates his employment in the construction industry.

42       It is apparent from s.21 of the Act that persons who are registered as employees under the Act are entitled to, or are eligible to become entitled to, long service leave that is at least equivalent to or better than the entitlement to long service leave under the Long Service Leave Act, as there is no requirement that service be continuous with an employer or transmittee.  In particular s.21(2)(c) of the Act provides that service in the construction industry is not required to be continuous and shall be included whether or not service is with more than one employer.  Further, after 25 years service in the construction industry a person registered under the Act is entitled to 82/3 weeks long service leave.

43       In light of the provisions of s.s.21 and 22 of the Act and s.4(3) of the Long Service Leave Act, if at the material time employees of the Applicant were registered as an employee under the Act, those employees were expressly excluded from the operation of the provisions of the Long Service Leave Act.

44       The question is, what is the meaning of the second sentence in Clause 8.6 of the certified agreement that provides an employer bound by the terms of the certified agreement to contribute to the Construction Industry Portable Long Service Leave Scheme subject to the acceptance by the Board.

45       It is not in dispute that the Scheme referred to is the Scheme established under the Act or that the Board referred to in clause 8.6 is the Respondent.  It is conceded by the Respondent that there are a number of employees who at the material time were employed by the Applicant who are not employees within the meaning of the Act.  Accordingly these employees are not entitled to make an application to the Board to register as an employee under s.30(4) of the Act.  In particular the Respondent concedes that employees engaged in the classifications of Senior Fire Fighter, Janitor or in Administrative Work are not employees within the meaning of the Act.  In respect of these employees (whose terms and conditions of employment are regulated by the terms of the certified agreement), the provisions of the Long Service Act apply to them.

46       In respect of the employees of the Applicant who at the material time were eligible to register as employees under the Act, the question is what is the effect of the second sentence in Clause 8.6 of the certified agreement. 

47       Enterprise agreements certified under the Workplace Relations Act, like awards are statutory instruments and must be interpreted in light of the rules applicable to all statutory instruments (See Re Clothing Trades Award (1950) 68 CAR 597; Norwest Beef Industries Ltd & Anor v Australian Meat Industry Employees Union (WA) (1984) 64 WAIG 2124 and Robe River Iron Associates v Amalgamated Metal Workers' and Shipwright's Union (1987) 67 WAIG 1097).

48       In interpreting industrial instruments tribunals usually do not apply a literal approach, as awards and enterprise agreements may have been drafted by industrial rather than skilled draftsmen (Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights' Union per Kennedy J at 1100).  This approach to interpretation was explained by Street J in Geo A Bond and Co Ltd (in liq) v McKenzie (1929) 28 AR 499 at 503-504:

"Now, speaking generally, awards are to be interpreted as any other enactment is interpreted.  They lay down the law affecting employers and employees in their relation as such, and they have to be obeyed to the same extent as any other statutory enactment.  But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament.  I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award."

49       It is argued on behalf of the Applicant that Clause 4 of the certified agreement excludes State law unless it is expressly mentioned in Clause 4.  Whilst the first sentence expressly provides the terms of the certified agreement are to cover the field, the intention to do so is subject to the exception "Except as specifically provided below."  The question is whether the word "below" is paragraph 1 of Clause 4 should be construed as a reference to paragraph 3 of Clause 4 and not to Clause 8.6. 

50       Having regard to generous construction of terms approach to construction of awards and agreements and to the fact that the opening words of paragraph 3 of Clause 4 provides "Except as expressly provided for in this agreement", the meaning of "below" in paragraph 1 of Clause 4 in my view refers to any provision in the certified agreement that follows paragraph 1 of Clause 4.

51       In construing the second sentence in Clause 8.6 of the certified agreement, regard should be had to the generous construction approach to construction of terms and to the principle of statutory interpretation that the courts are not at liberty to consider any word or sentence as superfluous or insignificant.  All words must prima facie be given some meaning and effect (Pearce and Geddes Statutory Interpretation in Australia 4th ed at para 2.12 and the cases cited therein).

52       Having regard to the fact that the provisions of the Long Service Leave Act are incorporated into the terms of the certified agreement, and in particular to s.4(3) of the Long Service Leave Act, it is my view that the meaning of the second sentence of Clause 8.6 of the certified agreement is that the employer is required to contribute to the Construction Industry Portable Long Service Scheme in accordance with the provisions of the Act.

53       It is argued on behalf of the Applicant that the employees at the Communication Station are covered by the terms of the certified agreement and in the absence of that agreement the provisions of the Award and not any award prescribed as a prescribed award under the Act.  Accordingly it is argued that employees are not employees within the meaning of the Act, so that the Applicant at the material time was not an employer as it did not engage employees within the meaning of the Act.  In support of its argument the Applicant points to paragraph 2 of Clause 4 of the certified agreement that provides that employers and employees at the Communication Station are excluded from coverage of any other award or determination which might otherwise be binding.

54       In Construction Industry Long Service Leave Payments Board v Positron Pty Ltd (1990) 70 WAIG 3062 at 3064 the Commission in Court Session found that it is not relevant whether an employee is employed by an employer who is bound by an award prescribed under the Act, as the definition of employee only uses the reference to the prescribed award to identify a classification of work related to the construction industry.  In my view it is clear that the definition of employee does not invoke coverage of any award prescribed under the Act.

55       In my opinion examination of the certified agreement reveals that no inconsistency arises between the certified agreement and the Act, so as to invoke the provisions of s.109 of the Commonwealth Constitution and s.170LZ(1) of the Workplace Relations Act 1996 to render the provisions of the Act invalid to the extent of the inconsistency.

56       In light of the foregoing it is the decision of this Board of Reference that at the material time the Applicant:

(a) was an employer who engaged persons as employees in the construction industry; and

(b) was required to register under s.30 of the Act as an employer.