REVIEW OF DECISION OF THE CONSTRUCTION INDUSTRY LSL PAYMENTS BOARD GIVEN ON 8 AUGUST 2014

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00054

DELIVERED : Friday, 5 February 2016

FILE NO. : APPL 21 OF 2014

Applicant

AND

The Construction Industry Long Service Leave Payments Board

Respondent

CatchWords : Review of a decision of the Construction Industry Long Service Leave Payments Board – Entitlement to long service leave – Definition of construction industry – Exclusion of the carrying out of any work on ships – Beneficial or purposive interpretation of legislation

Legislation : Construction Industry Portable Paid Long Service Leave Act 1985  s 3, s 3(1) definition of construction industry (a), (b), (c), (d), (e), (f), s 50

  Construction Industry Long Service Leave Act 1997 (Vic)

  Long Service Leave Act 1958 (WA)

Result : Application dismissed

Representation:

Applicant : Mr M Swinbourn of counsel

Respondent : Mr S Kemp of counsel

Reasons for Decision

1         The applicant seeks a review of the decision of the Construction Industry Long Service Leave Payments Board (the Board) made on 8 August 2014 that his work on the SapuraKencana Constructor Vessel (the Vessel) was not construction work.  This decision means that he is not eligible for contributions to be made by his employer to the Board for long service leave.  There is no dispute that the decision is a reviewable decision under s 50 of the Construction Industry Portable Paid Long Service Leave Act 1985 (the Act). 

2         The basis of the respondent’s decision was that the work performed by the applicant did not fall within the meaning of ‘construction industry’ under s 3 of the Act due to the exclusion of ‘the carrying out of any work on ships’.  The applicant accepts that the Vessel is a ship for the purposes of the exclusion at (d) to the meaning of ‘construction industry’ in s 3(1) of the Act. 

3         For the following reasons, I find that the applicant’s work is expressly excluded from the definition of construction work set out in s 3(1) of the Act. 

Agreed facts

4         The parties agree the following facts: 

1. The Applicant’s employment was covered by the Sapuraclough Offshore Western Australia and Northern Territory Offshore Projects Construction Agreement 2013‑2015 (Agreement). 

2. The Applicant was employed as a rigger by Sapura Kencana Petroleum (Australia) Pty Ltd (Sapura) on the SapuraKencana Constructor Vessel (Vessel). 

3. The Vessel is a 117 metre subsea construction support vessel which is utilised for the transportation and installation of various items of subsea equipment for the purposes of extracting oil and gas. 

4. The Vessel is used to lift equipment (manifolds) down to the sea floor, lay flowline pipes and umbilical cable and other associated components, ultimately for the extraction and processing of oil and gas from the ocean floor. 

5. Cranes are attached to the Vessel and are used on the Vessel to lower equipment to the sea floor.  The umbilical cable and flowline pipes are reeled off large spools on the Vessel to the sea floor. 

6. The umbilical cables are used for the transfer of power and data and for the extraction of oil and gas.  The flowline pipes are used for the transportation of oil and gas from subsea wells, manifolds and off shore process facilities. 

7. The umbilical cable and flowlines are connected through manifolds which are strategically placed on the sea floor. 

8. Divers are involved in the positioning of equipment on the sea floor and the connection of umbilical cables and flowlines. 

9. In May 2014 the Applicant lodged a Days of Service Query Form (Query) with the Respondent in relation to his employment with Sapura.

10. The Respondent undertook an inspection in relation to the Query.

11. The Respondent sent a letter dated 8 August 2014 to the Applicant, a copy of which is attached to the Applicant’s witness statement marked ‘BT9’.

Statement of Agreed Facts
filed 11 January 2016

5         The applicant seeks that the Commission: 

(a) set aside the Respondent’s decision; and

(b) substitute the decision with its own decision finding that the work that the Applicant performed for the Employer comes within the meaning of construction industry and that the Employer is required to:

(i) be registered as an employer with the Respondent;

(ii) lodge returns to the Respondent regarding the Applicant’s days of service with the Employer; and

(iii) make contributions to the Respondent for any days of service the Applicant has completed with the Employer. 

Applicant’s Amended Outline of Submissions
filed 25 November 2015, [3]

The applicant’s work

6         The applicant, as a rigger, performed work on the deck of the Vessel, assisting in the lowering of equipment and the deployment of the cables and pipelines to the ocean floor. 

7         The applicant also says that his usual occupation is as a rigger performing construction work in the oil and gas industry.  He was employed by Sapura as a rigger from November 2013 to May 2014.  He performed that work offshore in the northwest of Western Australia, near Exmouth.  The work related to the BHP Billiton Petroleum Construction Project for the Upper Pyrenees and Moondyne Subsea oil and gas fields.  His work pattern was three weeks on and three weeks off, working 12 hours per day, Monday to Sunday, for 21 days straight. 

8         He says the Vessel has a Hydramarine DNV Class Offshore Crane attached to the deck, as well as a number of other smaller deck cranes.  He included with his affidavit photographs of the deck, two large steel structures on the back deck which are manifolds, and a photograph of the Vessel with three workers with a testing component about to be lifted subsea.  There was also a photograph of the Vessel showing the hangover arch where the flowline goes into the water.  He says to mobilise and demobilise from the Vessel, he was either flown by helicopter or ferried by crew boat transfer. 

9         The applicant’s duties were set out in his job description form (exhibit A1, BT7).  This is a job description for a rigger in the Vessel Ops Business Division, and it describes the purpose of the job as including: 

To complete the rigging activities on the vessel within the guidelines of the project, quality, safety and environmental management plans.  Undertaking the correct procedures required in lifting of loads and slinging any material that requires to be moved from one place to another by crane and the assembly and erection of structural steel on the back deck. 

10      The prime responsibilities and deliverables include: 

 Responsible for the safe execution of deck activities in support of the construction work program in accordance with the relevant legislation, company and project procedures

 Keeping all deck personnel informed of a significant change to the deck status. 

Exhibit A1, BT7

11      The essential qualifications and experience required include Rigging/Scaffolding Certification Industry Standard; license to Perform High Risk Work (or tickets within validity transfer period); a minimum of 12 months construction industry experience (offshore/remote site preferable); work experience in an offshore/remote location (preferable); to be the current holder of relevant offshore medical (UKOOA) or equivalent; a current offshore survival course certificate suitable for the geographical area of operation, and a good understanding of all rigging/scaffolding/marine construction activities.

12      The applicant says that in general terms, this job ‘was to assemble structural steel components, such as subsea manifold on the deck of the vessel, arrange for them to be lowered over the side of the vessel onto the sea floor by the crane, and also to lay the continuous flowline, umbilical and other associated components on the sea floor’.  He described manifolds as ‘large steel structures, similar to modules used in onshore construction projects that contain valves, connection points for flowlines, umbilical cabling and pipework that deal with the product that comes from the wells in the oil and gas fields’.  The applicant described his typical shift as including but not limited to the following duties: 

(a) Laying flowline and umbilical (which is basically like a flexible pipeline).  This comes on large reels and to initiate the lay we would rig up the relevant end of the flowline or umbilical and lift it to the subsea floor with the crane. 

(b) Lifting large manifolds subsea and assisting Remote Operated Vehicle (ROV) technicians with their equipment. ROV’s assist in placing equipment along with the crane subsea and part of riggers duties is to assist the ROV techs when necessary.

(c) Working in conjunction with divers and lifting their tools and equipment overboard. 

(d) Offshore construction in particular with subsea work riggers are basically expected to assist other construction trades and specialist contractors when required, as well as obviously lifting all componentry whether it be on deck or subsea.

30. All the work I performed was construction focused for the specific project.

Exhibit A1, [29] – [30]

The parties’ contentions

13      The issue in contention is the very limited question of the meaning to be attributed to the exclusion from the definition of ‘construction industry’ at (d) of ‘the carrying out of any work on ships’ contained in s 3(1) of the Act. 

14      The applicant says that the exclusion in paragraph (d) of ‘the carrying out of any work on ships’ ought to be read as being work in relation to ships such as ‘the doing of work to ships, in effect, such as construction work, in making the ships, maintaining the ships, servicing the ships, painting ships et cetera’ (ts 17).  On the other hand, the respondent asserts that it means work performed while on board a ship. 

The applicant’s case

15      The applicant says there is ambiguity as to the meaning of the words and that I should prefer the meaning he advocates because when regard is had to the context in which it arises, the general purpose and policy of the Act and the subject it covers, the meaning the applicant proposes will give full effect to the object and purpose underlying the Act.  This, according to the applicant, is to provide an entitlement to employees in the broader construction industry who have short term and intermittent engagements that do not give rise to an entitlement to long service leave, in spite of the employees having provided long service to the industry.  The applicant says that the respondent’s preferred meaning would result in an absurd outcome which does not promote the purpose or object of the Act, as it has the effect of excluding an employee who would otherwise be included, from the benefits of the Act. 

16      The applicant says ‘[t]here is nothing else, save for the exclusion that would suggest that Mr Thompson wouldn’t be covered by the provisions of the Act’ (ts 18).  The applicant says that if the respondent’s preferred meaning were accepted, it would have the effect that where two people perform identical work in the construction industry, employed by the same employer and on the same project, but if one performs that work on land and one on a ship, the latter would be excluded from the portable scheme, and the other included.  An employee building a jetty from a ship would not be covered but one building a jetty from the land is included.  The applicant also says that under the respondent’s interpretation, a diver who is based on a ship and dives overboard to undertake work would be covered because they are not working on a ship. 

17      The applicant asserts that employees who, for all intents and purposes are working together, are not covered by the same scheme, and in his case, he worked directly with the divers in the performance of the work. 

18      The applicant relies on the requirement for the legislation to be given a beneficial interpretation. 

The respondent’s case

19      The respondent says that if the purposive approach is to be applied, then it would be difficult to read the definition of the industry covered, in accordance with the legislation, on the basis that the purpose is to include people who are actually excluded by the legislation.  The respondent says ‘you cannot extend the statutory scheme beyond that purpose by trying to expand on the wording’ (ts 22).  The purposive approach does not assist in the interpretation according to the respondent. 

20      As to the question of it being beneficial legislation, the respondent says one still needs to approach it from the question of who was the legislation intended to benefit.  It is intended to benefit employees in the construction industry, however, that industry is defined including by reference to particular exclusions.  Therefore, both the purposive and beneficial approaches result in a circular argument, neither of which assists in the resolution of the meaning of the words. 

21      The respondent also says that the construction industry is referred to as being the building and construction industry and that it was the construction of buildings, and not the ship building industry, which was the focus of the legislation.  It was not intended to cover the manufacture, maintenance or repair of ships. 

22      Further, the respondent says it is the performance of work, the ‘carrying out’ of work, on board a ship, which is excluded, not the work on ships.  It is not work relating to the ship itself but work which takes place on the ship.  An examination of some of the other subparagraphs of the definition such as s 3(1)(c) give an indication of the meaning to be attributed to the terms ‘carrying out of work on ships’. 

23      The exclusion is of work performed whilst on board the ships. 

24      As to the anomaly referred to in respect of divers, the respondent says that divers perform a different type of work.  When they are on the seabed, they are performing construction work and that is why they are not excluded from being in the construction industry as opposed to a person performing work on a ship, ‘on board the vessel’. 

The approach to interpretation

25      In The Public Transport Authority of Western Australia v Junghee Yoon [2015] WAIRC 00918; (2015) 95 WAIG 1620, the Full Bench of the Commission considered the terms of the Long Service Leave Act 1958 (WA) and referred to authorities dealing with statutory interpretation.  A/President Smith noted: 

33 It is well established that the point at which statutory construction should start is to ascertain the imputed purpose of Parliament:  Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 20; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 421 - 424.  As Justice Allanson pointed out in Cudby [20] - [21]:

The task of statutory construction begins and ends with consideration of the text of the written law: Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2007] HCA 57; (2007) 234 CLR 96 [34]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 [39]. A construction that promotes the purpose or object underlying a statute is to be preferred to one that would not promote that purpose or object (Interpretation Act 1984 (WA) s 18). But that cannot detract from the fundamental importance of the language used by the legislature. As Gageler and Keane JJ said in Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 [65]:

The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

The meaning of any statutory provision must be determined ‘by reference to the language of the instrument viewed as a whole’: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 [23]; Project Blue Sky [69]. This requires close consideration of the text and structure of the provision, in the context of the Act as a whole, the general purpose and policy of the provision, and its consistency and fairness. Similar comments were made in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 [30].

26      The issue of courts taking account of the consequences of giving a particular meaning to an act have been considered in a number of cases.  As noted in Pearce DC and Geddes RS Statutory Interpretation in Australia (8th ed, 2014) [2.38]: 

There are numerous cases that show the courts approach the interpretation of legislation by taking into account the consequences of giving a particular meaning to an Act.  … In fact, it could be said that it is unusual to find a case in which the court has not taken that approach.  However, as is discussed at 2.3‑2.5, 2.9‑2.13 and 2.32‑2.37 in particular, the language of the statute may prove so intractable that the court is unable to give effect to what it considers to be the evident purpose or object of the legislation.  The case that is most frequently cited in support of this general approach is Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151.  Mason and Wilson JJ commented (at 320‑1; 169‑70):

The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.  But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.  The rules [of construction], as D C Pearce says in his Statutory Interpretation, p 14, are no more than rules of common sense, designed to achieve this object.  They are not rules of law.  If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive.  When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the Legislature.

On the other hand, when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred.  But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.  Quite obviously questions of degree arise.  If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention.

If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

27      Interpretation is a text based activity and the first point of consideration is the text of the statute concerned (Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (2009) 239 CLR 27 per Hayne, Hayden, Crennan and Kiefel JJ at [47]; Amcor Ltd v CFMEU (2005) 222 CLR 241 per Kirby J at [67]).  Therefore, the first step is to examine the text of the Act. 

The provisions of the Act

28      The Act is ‘[a]n Act to make provision for paid long service leave to employees engaged in the construction industry and for incidental and other purposes’ (long title of the Act). 

29      It provides for a board to carry out the administration of the Act (the Act, s 14). 

30      The scheme of the Act provides that employers and employees who meet the definitions in the Act are registered with the Board; the employer makes contributions to the Board in respect of employees, who on meeting the requirements for service in the construction industry have an entitlement to paid long service leave. 

31      All aspects of application of the Act, for the employer, the employee, and for service, relate to the ‘construction industry’ as defined in s 3(1) of the Act, which consists of a detailed range of activities.  Exclusions from that definition are set out in (d), (e) and (f) of the definition.  The issue here is whether one of the exclusions, that is (d), applies. 

32      Section 3(1) provides the following definitions: 

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; 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, gas‑holders 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);

Consideration

33      There was no Explanatory Memorandum for the Bill in 1985.  There have been no previous interpretations of the exclusion the subject of this matter, that is ‘the carrying out of any work on ships’.  The contentious word is ‘on’. 

34      The definition of the word ‘on’ contains many aspects.  That definition is: 

a particle expressing:  1.  position above and in contact with a supporting surface:  on the table.  2.  contact with any surface:  the picture on the wall; the shoes on my feet.  3.  immediate proximity:  a house on the coast; to border on absurdity.  4.  situation, place, location, etc.:  a scar on the face.  5.  support, suspension, dependence, reliance, or means of conveyance:  on foot; on wheels.  6.  state, condition, course, process, etc.:  on the way; on strike.  7.  ground or basis:  on good authority; a story based on fact.  8.  risk or liability:  on pain of death.  9.  time or occasion:  on Sunday.  10.  position with relation to something else:  on the left; on the other side.  11.  direction or end of motion:  to march on the capital.  12.  encounter:  to happen on a person.  13.  object or end of action, thought, desire, etc.:  to gaze on a scene.  14.  membership or association:  on the staff of a newspaper; to serve on a jury.  15.  agency or means:  to speak on the telephone; we saw it on television.  16.  manner:  on the cheap; on the sly.  17.  subject, reference, or respect:  views on public matters.  18.  Colloq. relation of someone to an event which affects them, especially where they are morally responsible:  I don’t want him to die on me; the apples went bad on me.  19.  liability for expense:  drinks are on the house.  20.  Aust. engagement in the mining of a specified resource:  on the tin.  21.  Colloq. indulgence to excess:  he’s on the bottle, on the turps.  22.  direction of attention or emotion:  don’t go crook on me.  –adv. 23.  on oneself or itself:  to put one’s coat on.  24.  fast to a thing, as for support:  to hold on.  25.  towards a place, point or object:  to look on.  26.  forwards, onwards or along, as in any course or process:  further on.  27.  with continuous procedure:  to work on.  28.  into or in active operation or performance:  to turn the gas

on.  –adv. 29.  operating or in use:  the heating is on; the handbrake is on.  30.  taking place; occurring:  sport is on tomorrow.

Macquarie Concise Dictionary (6th ed, 2013) 821

35      Given the breadth of possible meanings, it needs to be read in the context in which it is used, both in the particular exclusion and by reference to other inclusions and exclusions contained within the definition of construction industry. 

36      Read in isolation, (d) of the definition in s 3(1) of the Act may afford ambiguity – that is, the phrase ‘any work on ships’ could be read to mean either the construction, renovation, alteration, demolition, maintenance, repairs ‘of or to ships’ in a similar way to those matters listed under (a) of the definition in s 3(1), or maintenance of or repairs or minor alterations to lifts or escalators as at (e) of the definition in s 3(1). 

37      However, read as part of the whole definition, the use of the language and the context strongly support the conclusion that no ambiguity exists. 

‘Construction industry’

38      The definition of ‘construction industry’ is very detailed and is set out in a particular structure.  That structure breaks down the work to a location or position; type of building, structure or works; activities and purpose.  Firstly, it sets out in paragraph (a), a position or a location in which the work is performed, in this case ‘on a site’.  A ‘site’ is defined as: 

1.  the position of a town, building, etc., especially as to its environment.  2.  the area on which anything, as a building, is, has been, or is to be situated.  3. … 4.  to locate; place; provide with a site:  they sited the school next to the oval.  [L:  position]

Macquarie Concise Dictionary (6th ed, 2013) 1112

39      The definition of construction industry then sets out a list of particular activities and their purposes.  In (a), the activity is the construction, erection, installation, reconstruction etc.  The type of things to which those activities are done is specified in (i) as buildings, and in (iia) as swimming pools and spa pools. 

40      From subparagraphs (ii) to (vi), it sets out, not only the type of structure or works to which the activity is done, but also the purpose to be achieved.  For example, (ii) is ‘roads, railways, airfields or other works for the passage of persons, animals or vehicles’ (my emphasis). 

41      In (iv) is works ‘for the storage or supply of water or for the irrigation of land’, that is, the purpose to be achieved by the works. 

42      From (vii) to (x), it describes the structure or the works such as bridges, viaducts, aqueducts or tunnels, chimney stacks, navigational lights etc. but without specifying the purpose. 

43      From (xi) to (xiv), it describes the purpose only, such as ‘works for the drainage of land’, ‘for the storage of liquids or gasses’, ‘for the generation, supply or transmission of electric power’, ‘for the transmission of wireless or telegraphic communications’. 

44      Paragraph (xv) is simply the type of the works, being pile driving works. 

45      Paragraph (xvi) sets out the ‘structures, fixtures or works’ and their use, that is ‘for use on or for the use of any buildings or works of a kind referred to in (i) to (xv)’. 

46      Paragraph (xvii) sets out a purpose as being ‘works for the preparation of sites for any buildings or works of a kind referred to in subparagraphs (i) to (xvi)’. 

47      Finally, paragraph (xiii) specifies the structure, that is fences, other than fences on farms. 

48      Therefore, all of those structures, fixtures or works, the associated activities and purposes specified in (a) of the definition in s 3(1) are carried out on a site, that is, the area on which anything, as a building, is, has been or is to be situated (my emphasis). 

49      Paragraph (b) of the definition specifies ‘carrying out of works on a site of the construction, erection, installation … of any buildings or works of a kind referred to in paragraph (a) for the fabrication, erection, installation of plant, plant facilities or equipment for those buildings or works’; that is, paragraph (b) brings within the definition of construction work, the work on a site relating to plant and equipment (my emphasis). 

50      Paragraph (c) clarifies that if the work in (a) or (b) is normally carried out on site ‘but which is not necessarily carried out on site’, it is included in the definition of construction industry (my emphasis). 

51      Paragraphs (d), (e) and (f) specify those locations, types of work and employer’s usual arrangements which are not included in the definition of construction industry.  The first, in (d), is ‘the carrying out of any work on ships’.  Paragraph (e) excludes ‘the maintenance of or repairs or minor alterations to lifts or escalators’.  Paragraph (f) excludes carrying out of maintenance or repairs of a routine or minor nature by employees of 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. 

52      Therefore, the definition of construction industry specifies the location, type and purpose of work which is included and that which is excluded. 

53      When referring to location, it specifies ‘on a site’ or ‘on site’.  When it refers to the nature of the structure or works, such as buildings, roads, works, bridges, etc. it uses the terms ‘to’ or ‘of’.  In the exclusion, in (e), it refers to work ‘to lifts or escalators’.  Where it refers to purpose, it says ‘for’. 

54      All of the paragraphs contained in (a) and (b) are carried out ‘on a site’.  Paragraph (c) is work normally, but not necessarily, carried out ‘on site’. 

55      Therefore, to apply the word ‘on’ in paragraph (d) in a manner consistent with how that word ‘on’ is used throughout the remainder of the definition of construction industry, it is work carried out at a particular position or location, that is located on ships, not work ‘to ships’. 

Beneficial or purposive approach

56      In The Public Transport Authority of Western Australia v Junghee Yoon, the A/President considered the issue of beneficial interpretation, saying: 

34 The legislative purpose of the LSL Act is beneficial.  As a beneficial enactment its terms are to be given a liberal interpretation, so as to give the fullest relief which the fair meaning of its language will allow:  IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12; Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 [42] - [44].

35 Thus, the LSL Act should be construed in a manner favourable to those whose benefit it applies to.  It is clear the LSL Act creates a scheme of a minimum safety net entitlement, or alternatively entitlements, to long service leave which are to apply to employees when the pre-conditions of service set out in the LSL Act are met. 

57      The Supreme Court of Victoria – Court of Appeal considered the issue of the beneficial approach to the interpretation of legislation in Baytech Trades Pty Ltd v Coinvest Ltd [2015] VSCA 342 (17 December 2015).  This is a decision which dealt with the Construction Industry Long Service Leave Act 1997 (Vic), which is of a similar nature to the Act, the subject of this matter in terms of its purpose.  The Court made the following comments regarding the correct approach to the beneficial purpose of the legislation (footnotes omitted): 

56 With respect, her Honour’s conclusion about the beneficial purpose of the legislation was undoubtedly correct.  But the Act also made clear that the beneficial purpose was to be achieved by imposing burdens on employers.  The purpose of the very detailed provisions in the Rules was to define, with some precision, the circumstances in which benefits were to be conferred and corresponding burdens imposed.  It is by giving primacy to the text that the interpreting court fulfils its task of discerning how far the legislature decided to go in the effectuation of its purpose.

57 We draw attention here to the caution expressed by Gleeson CJ in Carr:

That general rule of interpretation [that a construction that would promote the purpose of the Act is to be preferred to a construction that would not promote the purpose] may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act.  Legislation rarely pursues a single purpose at all costs.  Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem.  For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

58 In Victims Compensation Fund v Brown, Spigelman CJ observed that it was not appropriate to apply the principle of liberal construction to a clause clearly intended to be one of limitation.  His Honour said:

In a passage that has been frequently cited with approval, the Supreme Court of the United States said in Rodriguez v United States, at 525–526:

… No legislation pursues its purposes at all costs.  Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.

In the present proceedings, the Respondent submitted that the purpose was to compensate victims.  Even if we were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation (cf Favelle Mort Ltd v Murray).  In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the and not otherwise.

The issue before the Court is the determination of the circumstances in which compensation is payable.  The Court is not required to give the most expansive possible interpretation of such circumstances.

Specifically, the Court is not required to give words a meaning other than their primary meaning, unless the context indicates that that should be done. 

59 On appeal to the High Court, Heydon J (with McHugh ACJ, Gummow, Kirby, and Hayne JJ agreeing) agreed with the approach adopted by Spigelman CJ: 

The question is a narrow one and it is possible to answer it briefly. It could be answered very briefly, merely by stating that the answer propounded by Spigelman CJ was correct for the reasons he advanced.  In deference to the extremely careful judgments of the majority in the Court of Appeal, however, a longer answer is called for.

60 In MyEnvironment v VicForests, where one of the purposes of the relevant legislation was to protect the habitat of the Leadbeater’s Possum, the Court of Appeal was invited to construe the relevant provisions expansively with a view to furthering this legislative purpose.  Warren CJ said that, while there was no doubt that the authorities endorsed a purposive approach to statutory construction, the authorities also showed that caution was required before interpreting a particular provision expansively because of an underlying purpose of the legislation.  The Chief Justice observed:

In my view, the authorities can be seen as supporting two related propositions.  First, that it is rarely, if ever, the case that legislation pursues a single purpose to the fullest extent possible.  Rather legislation is typically the result of a carefully considered attempt at balancing multiple and sometimes competing objectives.  To assume that the apparently confined words of a provision must be given an expansive operation on the basis of what is perceived to be the legislation’s primary purpose may frustrate rather than effectuate legislative intent.

61 Tate JA said:

When construing legislation that has a multiplicity of purposes, or seeks to strike a balance between competing interests, it is necessary to keep in mind the observation of Gleeson CJ in Carr v Western Australia that the purposive rule of statutory interpretation, embodied in Victoria in s 35(a) of the Interpretation of Legislation Act 1984, is of limited assistance in construing legislation, or regulatory instruments, that embrace numerous potentially conflicting objectives in relation to which the court has to determine from the language used where the intended balance lies.  In that context, he expressly eschewed the adoption of a construction that furthered the pursuit of one of the competing objectives to the greatest extent possible while leaving the other objectives unfulfilled.

62 Drawing on the passage from the judgment of Gleeson CJ in Carr set out above, Tate JA concluded that the complexity of the statutory scheme and the competing aims apparent in the regulatory context showed that there had been ‘a compromise’.  In the legislative scheme before the court, the ‘purpose or object’ identified did not compel any particular construction, nor was it possible to identify a single purpose or objective.  The fact that the legislative scheme was directed at the fulfilment of multiple purposes meant that the ‘correct construction ... must depend on the words used’, within the relevant context.

58      In the case of the Act, the beneficial or purposive approaches to interpretation take the matter no further than to say that the purpose is to provide a benefit to employees in the construction industry.  The Act then defines that industry by work that is included and that which is excluded.  The construction industry to which the employees’ benefit (and in the case of the employers’ the burden) extends, is defined in the legislation.  It then becomes a circular argument to define the industry by reference to who benefits, rather than to define it according to the terms of the statute.  It is only when a person comes within the definition of construction industry that a benefit is to be provided.  The purpose of the legislation is to provide a benefit to those who are within its scope, not to those who are beyond its scope.  If the work meets any of the definitions as set out in s (3)(1)(a), in (b), or in (c), it will still be excluded if it is performed in any of the circumstances set out in s 3(1)(d), (e) or (f), even if in all other respects it is work carried out in the construction industry. 

59      Therefore, I conclude that the meaning of construction industry excludes the carrying out of any work while located or positioned on board a ship, not work performed to a ship.  Given that the applicant’s work was ‘the carrying out of work on [a] ship’, that work was not part of the construction industry for the purposes of the Act, and the Board’s decision was not in error. 

60      The application must be dismissed.