WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2019 WAIRC 00042

DELIVERED : THURSDAY, 7 FEBRUARY 2019

FILE NO. : M 205 OF 2017

CLAIMANT

AND

Cape Australia Onshore Pty Ltd

Respondent

CatchWords : INDUSTRIAL LAW - Classification of Employee under Enterprise Agreement - 'Scaffolder' or 'Carpenter' - Cutting and fixing plywood deck to scaffold structure

Legislation : Fair Work Act 2009 (Cth)

Instrument : Cape Australia Wheatstone Project Agreement 2013 [2014] FWCA 1084
Building and Construction Industry General On-site Award 2010
National Building and Construction Industry Award 2000

Case(s) referred to

in reasons : Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767

Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4

Federated Clerks Union of Australia Industrial Union of Workers, WA Branch v Carey (1977) WAIG 585

Joyce & Ors v Christofferson & Ors (1990) 33 IR 390

McMenemy v Thomas Duryea Consulting (2012) 223 IR 125

Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 886

Wright v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 887

Re Harrison; Ex Parte Hames [2015] WASC 247

Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72

Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696

Fair Work Ombudsman v Broome Helicopter Services Pty Ltd & Anor [2017] FCCA 2364

Joske v Dental Cash Order Company Pty Ltd [1916] HCA 7

Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663

Result : Claim dismissed

Representation:

Claimant : Mr D. Scaife as instructed by Eureka Lawyers

Respondent : Mr A. Denton as instructed by Svenson Barristers

REASONS FOR DECISION

Introduction

1          The claimant (Mr Jensen) was employed by the respondent (the Company) between 12 January 2016 and 9 December 2016. He worked in a team that erected and dismantled scaffolding on a large liquified natural gas (LNG) construction project west of Onslow in the north of Western Australia, known as ‘the Wheatstone Project’. His primary task was the measuring and cutting of plywood sheets and fixing of those sheets to scaffold structures. Mr Jensen’s employment was subject to an enterprise agreement made under s 54 of the Fair Work Act 2009 (Cth), the Cape Australia Wheatstone Project Agreement 2013 (the Agreement). On appointment, the Company was required by cl 9 of the Agreement to classify Mr Jensen to a level within a structure set out in the Agreement. Mr Jensen’s classification level determined his wages and other entitlements. At the time of appointment, Mr Jensen was a qualified and experienced carpenter. He also, on his second attempt, completed a competency test in basic scaffolding. Mr Jensen’s classification by the Company was to be ‘based on [his] skills, qualifications, experience, competency and training provided that the Company had the need for such skill and competence’.1 He was classified by the Company as a ‘scaffolder’ resulting in remuneration calculations based on an hourly pay rate of $47.65. Mr Jensen contends that, having regard to the tasks involving plywood that were required of him, he should have been classified as a ‘carpenter’ and paid accordingly ($49.64 per hour), as well as being paid the ‘tradesperson’s allowance’ provided for in cl 10 of Appendix 2 of the Agreement ($2.07 per hour). The Company disputes that it had a need for the skills of carpenter. Shortly stated, the issue for me to determine is whether the Company correctly classified Mr Jensen as a scaffolder, or as Mr Jensen seeks to prove, has contravened the Agreement by underpaying him as a result of failing to correctly classify him as a carpenter. For the reasons set out below, I am not satisfied that the Company has contravened the Agreement by failing to classify Mr Jensen as a carpenter.

Criteria for Classification

2          The starting point for resolution of a dispute on the effect of the Agreement is the ordinary meaning of the relevant words of the Agreement.2 Clause 2 states that the Agreement is binding upon Cape Australia and employees of the Company employed in the classifications provided for in the agreement and performing work falling within the application of the agreement. Clause 3 provides for the application of the Agreement to ‘on-site construction work for the Wheatstone Project’. It is not in dispute that Mr Jensen was employed by the Company and engaged in the construction work of the Company on-site for the Wheatstone Project. The Company and Mr Jensen were bound by the Agreement.

3          It is appropriate to set out the full text of cl 9(1) of the Agreement, entitled ‘Wages and Classification Structure’:

The classification structure in this Agreement is set out below. Indicative tasks undertaken by various levels within the classification structure is described in detail in Appendix 1 - Classification Structure of this Agreement.

Employees must be prepared to perform all tasks as required of their classification level or any lower level for which they have the required skills and competence provided that the intention of this provision is not to promote the de-skilling of classifications, but to recognise and make use of the full range of skills and competence held by the workforce.

Employees covered by this Agreement shall be classified at a level as specified by this clause and Appendix 1 based on their skills, qualifications, experience, competency and training provided that the Company has the need for such skill and competence. Each Employee's classification level will be specified in their letter of appointment. Employees may be required to carry out work either individually or as part of a work group. Employees are responsible for carrying out work in a safe manner and for the quality of their work. Employees at all levels shall carry out all duties which are:

(a)    incidental or peripheral or ancillary to their main tasks or functions, and/or

(b)    within their skill, competence and training, and/or

(c)    routine functions.

An Employee, engaged in writing, for more than two hours, during one day on duties carrying a higher rate than the Employee's Ordinary Classification, shall be paid the higher rate for the whole day. Otherwise the employee shall be paid the higher rate for the time so worked

The following are the minimum hourly wage rates payable to Employees for working Ordinary Hours under the classifications described. Civil/Structural classifications are described in Appendix 1 - Classification Structure of this Agreement…

4          The remainder of cl 9(1) read with Appendix 1 sets out classifications in the form of groups of various named construction occupations. The groups are arranged in hierarchical rows and distributed among three tables with headings, ‘Civil/Structural’, ‘Trade & Technical Classifications’ and ‘Crane Classifications’. The result is classification levels comprising groups of occupations in each of three tables.

5          Clause 9 of the Agreement placed an obligation upon the Company to select a classification level for Mr Jensen based on his ‘skills, qualifications, experience, competency and training’ (the Employee Skills). The obligation is qualified in one respect, ‘provided that the Company has the need for such skill and competence’ (the Company Needs). Clause 9 does not expressly state what follows if the qualification is to be applied as a result a mismatch between the Employee Skills and the Company Needs. However, it is implicit that the Company will have discharged the obligation imposed by the clause by selecting the classification level that is the ‘best fit’ between the Employee Skills and the Company Needs. ‘Carpenter’ appears in a group of eleven occupations in the second row of the ‘Trade & Technical Classifications’ table within cl 9(1). ‘Scaffolder’ appears in a group of six occupations in a group of ‘Civil/Structural’ occupations set out in Appendix 1.

6          When confronted with the task of placing an employee into classifications found in an industrial instrument or instruments, courts have frequently looked to the quantity and quality of the elements of the employee’s work to determine the major and substantial employment of the employee (the Substantial Employment test).3 However, courts have also examined the nature of the work being performed and the circumstances in which the employee was employed to ascertain the principal purpose for which the employee is employed (the Principal Purpose test), particularly where the text of the industrial instrument expressly provides for classification based upon the skill level required of an employee to carry out the principal functions of employment.4 Clause 9 of the Agreement requires an analogous (but not identical) comparison to that required by the Principal Purpose test. The nature of the work being performed by Mr Jensen and the circumstances of his employment, including his skills and qualifications, will inform the determination of the Company Needs and, consequently, the appropriate classification.

7          A number of factors have been remarked upon in cases that have applied the Principal Purpose test:

1. The relevant circumstances of employment will include: the contents of any job description, person specification or job advertisement; the qualifications of the employee and whether the qualifications are necessary to the exercise of the primary function being performed. Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767 [169]; Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4 [167] – [171].
2. Relevant to an assessment of the nature of the work being performed will include: characterisation of the ‘substance’ of the work of an employee; the level of importance and relevance of particular duties in the context of the employing organisation’s overall purpose. Federated Clerks Union of Australia Industrial Union of Workers, WA Branch v Carey (1977) WAIG 585, 5865; Tucker [22]; Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4 [169] – [170].
3. The title given to an employee is not determinative of the nature of work being performed; it may mislead as to the nature of the job. Joyce & Ors v Christofferson & Ors (1990) 33 IR 390, 405.
4. The time spent in different duties is relevant but not determinative of the classification; an employee might perform duties which the employee prefers, or believes to be required, but which are not the duties the employee is necessarily directed (or employed) to perform. McMenemy v Thomas Duryea Consulting (2012) 223 IR 125, 133; Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4 [168].

8          I agree with the Company’s submission that the opening sentence of Appendix 1 of the Agreement invites examination of a link between ‘previous LNG construction agreements’ and modern awards as relevant contextual background to the presence of the word ‘scaffolder’ in Appendix 1. ‘Scaffolder’ appears in a group of six occupations in the group of ‘Civil/Structural’ occupations set out in Appendix 1. Appendix 1 of the Agreement is headed ‘Classifications Structure’. For each of six headings ‘CW1 – Tasks Undertaken’, ‘CW2 – Tasks Undertaken’, ‘CW3 – Tasks Undertaken’, et cetera, occupations are listed. Under the heading ‘CW2 – Tasks Undertaken’ and a subheading ‘Transitional Group 3’ is listed ‘Scaffolder’. The significance of this structure is explained to the extent that the opening sentence of Appendix 1 states that it:

includes increases for the transition from the historical classification structure contained in previous LNG construction agreements and a new structure that is more closely based on the modern award classification structure.

9          The Company’s submission commences with the Australian Industrial Relations Commission identifying three ‘historical’ awards that informed work on the exposure draft of the Building and Construction Industry General On-site Award 20106 and identify references to ‘carpenter’ or ‘scaffolder’ in each of those four instruments.7 Emphasis is placed on extended definitions of ‘carpenter and joiner’ and ‘scaffolder’ found, respectively, in cl 4.7 and cl 4.45 of the National Building and Construction Industry Award 2000 (the 2000 Award). A difficulty for the Company’s submission is that the relationship between the four identified instruments and the ‘previous LNG construction agreements’ mentioned in Appendix 1, if any, has not been explained and is not apparent from the Agreement. Unless the relationship is explained, the contents of the instruments are of limited assistance. Further, any use to be made of the 2000 Award is necessarily limited to being relevant to the context of the Agreement. Nothing in the text of the Agreement would justify defining a term found in the Agreement by reference to a definition found in the 2000 Award. In any event, the definition of ‘scaffolder’ found in cl 4.45 of the 2000 Award8, on my assessment, does not contain anything that would favour the result urged by either party in this case.

10       Mr Jensen submits that reference should be made to the Macquarie Concise Dictionary and the Australian Standard Classification of Occupations (Second Edition) (ASCO) when construing ‘carpenter’ and ‘scaffolder’. Emphasis is placed upon the classification in ASCO of the tasks of a ‘carpenter’ as including cutting materials and erecting scaffolding9 in contrast to tasks of a ‘scaffolder’ as placing planks over horizontal bars to create platforms.10 When called upon to consider the ordinary meaning of a word that has been used in its natural and ordinary sense, a court may use a dictionary to ‘refresh the judicial mind’ of the ordinary meaning of the word.11 If required to determine the meaning of a technical word or a word that has been used in a special technical sense, the court may use any appropriate technical source to assist in ascertaining the meaning of the word.12 My view is that the ASCO cannot be used to determine the meaning of ‘carpenter’ or ‘scaffolder’. There is nothing in the Agreement to suggest that those words have been used in other than their natural and ordinary sense. The ASCO is not a dictionary. The purpose of ASCO, published in July 1997, is to provide detailed occupation information13 for use in ‘statistical surveys, labour market analysis, vocational education and training, job placement activities and careers guidance’.14 The ‘tasks’ identified in ASCO are intended to be a ‘representative list of the primary tasks performed in the occupation’.15 A representative list of the primary tasks of carpenters and scaffolders throughout Australia as at July 1997 is of limited utility in determining the ordinary meaning of ‘carpenter’ and ‘scaffolder’ in connection with construction work on the Wheatstone Project in 2016.

Findings of Fact

11       In December 2015, Mr Jensen contacted the Company about employment opportunities. It was suggested he obtained a ‘scaffolding ticket’. He obtained a ‘license to erect or dismantle scaffolding at basic level’ and informed the Company of this fact. He had also sent the Company a copy of his résumé which, I infer, contained a reference to his completion of a carpentry apprenticeship in 2006.

12       By a letter dated 9 January 2016, the Company made an offer of employment as a ‘basic scaffolder (CW2/3)’ to commence on 12 January 2016. The letter included reference to the following:

Your employment on the project will end upon the completion of the task for which you are employed on the project, namely an intermediate scaffolder unless your employment is terminated earlier. Any additional applicable allowances will be as per the agreement. The agreement prescribes the circumstances when additional allowances apply. Please note that some allowances are ‘all purpose’ and some are not.

13       Mr Jensen was required to undertake testing of his scaffolding skills by way of what is known as a ‘verification of competency’ (VOC Process) before he commenced his work on the Wheatstone Project. He failed the VOC Process. Mr Jensen understood that his employment may be terminated. He spoke to representatives of the Company, drawing attention to his skills working with plywood. He was permitted to re-sit the VOC Process. He passed on the second attempt.

14       Mr Jensen worked in a group of around twelve employees known as a crew. The crew erected and dismantled scaffolding around very tall, very large structures associated with LNG processing. The photographs at the annexure marked ‘SM-2’ to the witness statement of Steven May (exhibit 5) are indicative of the height and size of the structures and the scaffolding. The scaffold design may place the scaffold in a location where the plywood scaffold flooring (‘the deck’) was ‘penetrated’ by parts of the structure itself (for example, a pipe). This is illustrated by the photographs which appear as annexure ‘SM-3’ to the witness statement of Steven May and the photographs which are annexure ‘JDJ-7’ annexed of the witness statement of Mr Jensen (exhibit 1). In these locations it is necessary to: take measurements of the relevant penetration; scribe (i.e. mark) the plywood; make cuts necessary to the plywood; and to fit the plywood in place (together, ‘Plywood Work’). It was necessary for Mr Jensen to complete the Plywood Work to a particular standard; no gap on the scaffold deck must be greater than 10 millimetres (‘the 10mm Standard’).

15       Mr Jensen engaged in Plywood Work for part or all of each day that he worked for the Company. He estimated that Plywood Work occupied 85% of the total time that he worked for the Company. There was one month in the middle of 2016 when Plywood Work occupied about 50% of his working time. When not engaged in Plywood Work, Mr Jensen was engaged in the same duties being performed by other members of his crew which included one or more of the following: general labouring; erecting barricading; erecting scaffold; dismantling scaffold; and modifying scaffold.

16       For the purpose of enabling Mr Jensen to undertake Plywood Work, he was issued with tools designed for working with plywood, including a jig saw, circular saw and a drill. Mr Jensen had access to a workstation (photographed in ‘JDJ-5’) where he undertook the Plywood Work (except for fixing the sheets to the structure).

17       The crew in which Mr Jensen worked was similar to other crews in that there was a division of labour between the majority of workers engaged in the task of scaffold frame construction and a minority of workers who were engaged in Plywood Work. Mr Lawther, a Company manager involved in scaffolding on the Wheatstone Project during the period of Mr Jensen’s employment explained how the allocation of tasks within a crew came about (exhibit 6):

(16) It is not uncommon for craft [employees] to hold multiple tickets in the construction industry. When cutting duties were required and needed to be assigned, a supervisor would ask his crew if any member were interested in performing the duty and if so assess their skill set.

(17) A scaffolder with a carpentry background would often volunteer to perform this task, which they found more enjoyable and less physically demanding than scaffold erection, dismantling and moving scaffold gear into place.

18       Before a crew worker was involved in Plywood Work, the employee was required to have completed testing to confirm competency in the use of power tools, known a ‘Challenge Test’. For the Company, aptitude in Plywood Work was the dominant consideration when allocating this task. In the result, crew members who engaged in Plywood Work were volunteers who completed a power tool competency test and had one or more the following: aptitude; experience and qualifications in a trade. The crew workers engaged in Plywood Work, typically, had been employed as a trades assistant, basic scaffolder or intermediate scaffolder.

19       A crew worker engaged in Plywood Work, including Mr Jensen, was typically referred to by other crew workers as the ‘chippie’. This nickname is also commonly used in the construction industry to refer to a carpenter.

20       Mr Jensen, in common with all members of his crew, was required to sign a ‘Job Hazard Analysis’ (JHA), as required, at regular intervals throughout his employment. During the period in which Mr Jensen was employed, there is evidence a ‘workgroup’ identified as ‘scaffolding’ being required to complete a separate JHA for each of two tasks: scaffolding; and carpentry. A JHA dated 1 February 2016 – 29 February 201616 concerns the task of scaffolding. It contains references to: ‘tools and equipment required: hand and power tools’, ‘scaffolding/scafftag’ permits; ‘use of power tools being controlled by ensuring competence person undertakes tasks’; and ‘incorrect use of power tools/cuts to the body’ controlled by ‘apply correct cutting techniques, cut away from the body’. A JHA dated 1 March 2016 – 31 March 2016 concerns the task of general carpentry. It contains references to: power and hand tools being required; job steps including the cutting and assembly of materials; hazards including an operator being untrained; and hazard controls including that users have completed verification of competency requirements.

21       Evidence was received of JHA’s maintained by the Company after Mr Jensen ceased to be employed by the Company to similar effect as the last mentioned JHA on the task of carpentry, save that an additional reference is made to a job step of working from scaffold platforms.

22       The Company published a ‘safe work method statement’ for specified work activities and required the document be signed by employees involved in the activity. One statement issued to Mr Jensen,17 is entitled, ‘Cape Wheatstone SWMS – Carpentry’. The document includes the following:

The following tools are required in completing carpentry works. … If any worker is not fully trained and VOC’d in the maintenance and use of the required tools to complete their job task, stop work and notify the Works Supervisor.

23       The Company issued ‘guidance statements’ to employees. I am satisfied that during the course of his employment, Mr Jensen received a statement in connection with the use of ‘wearing double eye protection’ which statement was directed to ‘all carpenters’.18

24       The Company issued a ‘Safety Task Analysis Risk Reduction Talk’ document (STARRT) to employees. I’m satisfied that the STARRT document at ‘JDJ-4’, though issued after Mr Jensen ceased to be employed by the Company, is illustrative of STARRT documents issued while he was employed. The document is entitled, ‘STARRT CARD – SCAFFOLD’. Employees are required to hand write the ’task’ about to be commenced. Mr Jensen used various terms when he completed the document including: ‘general carpentry’, or ‘cutting ply general carpentry’, or ‘cutting ply’.

25       In summary, Mr Jensen was a member of a small crew of workers who erected, dismantled and modified scaffolding. He was the only member of the crew to specialise in a task that was required to complete the erection of scaffolding: Plywood Work. The successful completion of this task required precision, notably achievement of the 10mm Standard. Mr Jensen’s qualifications and experience in carpentry were relevant and useful to him when engaging in Plywood Work and in ensuring that he achieved the 10mm Standard. On occasion, he was required to remedy the Plywood Work done by others that had not achieved the 10mm Standard.

Analysis

26       The Company submission embraces the Principal Purpose test and submits that the principal purpose for which Mr Jensen was employed was to erect scaffolding. The point was made by counsel for the Company during closing submissions:19

[A]ll the duties that were carried out by Mr Jensen for Cape were inextricably linked to the erection and dismantling of scaffolds.  … [I]f the scaffolds weren’t there he wouldn’t be there; [if] there was no scaffolding, there was no work.  In other words, but for the task of scaffolding his job would not exist.  … Presumably he was good at [the woodwork tasks].  Presumably he was better than many of the other basic scaffolders that did the same tasks.  That’s not the point. At any given time he could have reasonably been directed to do other duties of a basic scaffolder because that was his job.

27       Undeniably, the Company needed employees with the skills required to erect scaffolding. However, the submission of the Company does not acknowledge that the erection of scaffolding involved Plywood Work. If the skills of a carpenter were needed to do Plywood Work and to achieve the 10mm Standard, the Company needed a carpenter to erect scaffolding. Put another way, the primary purpose of the Company was not the employment of scaffolders; the primary purpose of the Company was the construction of scaffolding.

28       It is necessary to examine the circumstances of Mr Jensen’s employment and the nature of his work to determine whether the Company had a need for his skills and qualifications as a carpenter.

29       There is no evidence of the Company seeking employees with carpentry qualifications or nominating carpentry qualifications as necessary for appointment. It is also to be noted that, absent his scaffolding basic licence and completing the VOC Process, Mr Jensen would not have been employed by the Company. At the time of his appointment, Mr Jensen possessed qualifications as a carpenter and a scaffolder. His scaffolding qualification was in the form of a licence at a ‘basic level’ and he had no experience as a scaffolder. In addition to his carpentry qualifications, he had significant experience as a carpenter acquired since he had completed his trade qualification. Mr Jensen had limited skills in scaffolding, except to the extent that skills acquired as a carpenter overlapped with skills required of a scaffolder. There is an overlap. A scaffolder requires the skills necessary to lay a deck as part of the construction of scaffolding. Where the deck involves Plywood Work, a carpenter is likely to possess those skills. The fact that Mr Jensen was permitted a second attempt at the VOC Process after drawing attention to his carpentry skills serves to highlight the overlapping skills. I am satisfied that the Company anticipated that, if he completed the VOC Process on the second attempt, Mr Jensen would be engaged exclusively in Plywood Work. The fact that the Company accommodated a second attempt at the VOC Process serves to highlight the significance of Mr Jensen’s carpentry skills to the needs of the Company. It is a fact that weighs in favour of a conclusion that the Company needed the skills of a carpenter to erect scaffolding.

30       Aspects of the nature of Mr Jensen’s work also weigh in favour of a conclusion that the Company needed his carpentry skills. Plywood Work involves a series of tasks that are discrete from other tasks required in the erection of scaffolding. The proportion of Mr Jensen’s time spent on Plywood Work was significant, approaching 100% of his time. Mr Jensen, an experienced carpenter, described Plywood Work as work typically done by a carpenter. Mr Jensen stated that he had, on occasion, corrected Plywood Work to result in the 10mm Standard being achieved. The existence of specification level for the Plywood Work (i.e. the 10mm Standard) and Mr Jensen’s corrective work also suggests that the skills of a carpenter were needed by the Company.

31       Notwithstanding the above-mentioned factors suggesting that the Company needed Mr Jensen’s carpentry skills, I am not satisfied that the Company contravened the Agreement by failing to classify Mr Jensen as a carpenter. It is significant to me that the Company was indifferent to the experience and qualifications of crew members who were assigned to Plywood Work. Volunteers were required to demonstrate aptitude in Plywood Work. There is no evidence that Plywood Work was necessarily or likely to be beyond the ability of an employee who did not have a qualification as a carpenter. Excepting Mr Jensen, there is no evidence of the proportion of crew members engaged in Plywood Work who possessed a qualification as a carpenter. Scaffold erection necessarily involves ‘laying of a deck’ on a frame. Plywood Work involved discrete and specialised tasks directed to this end. Mr Jensen’s carpentry skills and qualifications assisted him in his Plywood Work. However, I am not satisfied that the Company needed those carpentry skills and qualifications.

32       I have not overlooked that the Company’s safety documentation relevant to Mr Jensen is replete with references to the word ‘carpenter’ or ‘carpentry’. I have noted references found in the ‘Job Hazard Analysis’, the ‘Safe Work Method Statement’ and the ‘Guidance Statements’. I have also noted that Mr Jensen (and other Company employees) used the term ‘carpenter’ or ‘chippie’ when referring to his role. For example, in the ‘Safety Task Analysis Risk Reduction Talk’ card. My view is that the use of terms as noted in this paragraph is not of especial significance in circumstances where those terms are a convenient means of identifying tasks or a class of employees requiring discrete consideration. None of the documents refer to trade qualifications. A number of the documents refer to the need for verification of competency requirements, a fact which is inconsistent with a task being undertaken by a person with a trade qualification.

Conclusion

33       I am not satisfied that the Company has contravened the Agreement by failing to classify Mr Jensen as a carpenter. The circumstances of his employment reveal that he had qualifications as both a carpenter and a scaffolder. However, the overlapping skill-set of ‘carpentry skills’ and the skills required for Plywood Work met the need of the Company for an employee who, in substance, would erect scaffolding. Notwithstanding the evidence of Mr Jensen, I am not satisfied that Plywood Work involved the skills of a carpenter. The same work was successfully undertaken by crew members who did not have qualifications as a carpenter.

34       If I am wrong and the Company was required to classify Mr Jensen as a carpenter, my view is that he would be entitled to the Tradesperson Allowance provided for in cl 10 of Appendix 2 of the Agreement:

An employee who is engaged at Tradesperson level or higher, holding a current tradesperson certificate or tradespersons rights recognition who is required to perform the full range of duties of a Tradesperson, shall be paid an hourly all purpose allowance in accordance with the table below.

35       If the effect of the Agreement was that the Company was obligated to engage Mr Jensen on the basis of a classification as a ‘carpenter’ then he would have been engaged ‘at Tradesperson level or higher’: Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 886; Wright v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 887. He held a qualification as a ‘current tradesperson’. The factual findings necessary to support a conclusion that the correct classification of Mr Jensen is ‘a carpenter’, would also be sufficient to ground a conclusion that Mr Jensen performed the ‘full range of duties of a Tradesperson’.

M. FLYNN

INDUSTRIAL MAGISTRATE

1 Quoted words from Clause 9 of the Agreement.

2 I respectfully adopt the observations made in Re Harrison; Ex Parte Hames [2015] WASC 247 (Beech J) on the approach to be taken by a court when interpreting a legal instrument:

(1)       the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;

(2)       it is the objectively ascertained intention of the parties as it is expressed in the instrument, that matters; not the parties’ subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;

(3)       the objectively ascertained purpose in object of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;

(4)       the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence from the surrounding circumstances;

(5)       an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However it must be brought in mind that business common sense may be a topic upon which minds may differ; and

(6)       an instrument should be construed as a whole a construction that makes the various parts of an instrument harmonious is preferable if possible, each part of an instrument should be construed so as to have some operation [50].

When interpreting legal instruments of the nature of industrial awards and agreements, additional considerations are relevant. In Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 [64] – [65], White J, states:

There are well developed principles concerning the construction of industrial awards and agreements which take account of the fact that they are commonly drafted by lay persons and lack the precision and clarity to be expected in commercial contracts.

The principles were reviewed recently by Tracy J in Transport Workers Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [29]. It is not necessary to repeat the principles in detail in these reasons. It is sufficient to say that the court will seek to identify, in an objective way, the meaning intended by the parties to the agreement having regard to the language they have used and in doing so avoid a narrow or pedantic approach. In particular, the court takes account of the circumstance of the drafters of the agreement when likely of a ‘practical bent of mind’ and likely to have been concerned when expressing their intentions in ways understood in the context of the relevant industry and industrial relations environment. As with commercial contracts, the court will prefer a construction which gives effect to the presumed purpose of the parties.

3 Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696 [38] – [39] (Logan J).

4 See the cases collected in Fair Work Ombudsman v Broome Helicopter Services Pty Ltd & Anor [2017] FCCA 2364 [30] – [39]

5 If in substance the worker’s job is to write and the job is done when the writing has been done he is a clerk. Both in substance the writing done by the worker is but a step taken in the doing by him of something extending beyond it then he is not. The ‘substance’ of the work identifies the question as being one of degree and it indicates the answer to it will be or may be, very much the product of a value judgment.

6 Award Modernisation – Statement [2009] AIRCFB 50 at [32].

7 Transcript at pages 78 – 85.

8 4.45 Scaffolder

4.45.1 means a person engaged substantially in the erecting or altering or dismantling of any structure or framework used or intended to be used in building operations:

4.45.1(a) to support workers or material; or

4.45.1(b) to support framework; or

4.45.1(c) as a temporary support for members or parts of a building.

Where such structure or frame work is composed of standards and/or ledgers and/or pud locks or any combination of these components normally used in scaffolding work.

4.45.2 Nothing in this definition shall extend to:

4.45.2(a) any scaffolding used or intended to be used to support workers or materials which is not intended to be erected to a height over three metres; or

4.45.2(b) any work relating to formwork which consists solely of the tying together of occasional pieces of scaffolding tube to arrow or similar type props; or

4.45.2(c) any work which consists of a structure or framework composed solely of timber.

9 4411-13 Carpenter

Constructs, erects, installs, renovates and repairs structures and fixtures of wood, plywood, wallboard and other materials.

Skill Level:

The entry requirement for this occupation is an AQF Certificate III or higher qualification. Registration or licensing may be required.

Tasks Include:

• studies drawings and specifications to determine materials required, dimensions and installation procedures
• orders and selects timbers and materials, and prepares layouts
• cuts materials with hand and power tools, and assembles or nails cut and shaped parts
• erects framework, lays sub-flooring and verifies trueness of structures
• assembles ceiling joists and rafters to construct roof framing, or nails pre- fabricated roof trusses into place
• nails fascia panels, sheathes roofs and fits exterior wall cladding to enclose structures
• cuts and nails frames around windows and doors, hangs doors, installs prefabricated units and other structures, and nails floor-boards over sub-floor
• may install door handles, locks, hardware, flooring underlay, suspended ceilings, insulating materials and other fixtures
• may examine and remove parts of existing structures, do minor preparatory work and install building supports
• may erect scaffolding and steel studding

10 7913-11 Scaffolder

Erects and dismantles scaffolding to provide work platforms on building or industrial sites, or for temporary structures such as stages and seating.

Skill Level:

The entry requirement for this occupation is an AQF Certificate II or higher qualification or at least 1 years relevant experience. Registration or licensing may be required.

Tasks Include:

• loads and unloads scaffolding and equipment
• sets levels for erection of scaffolds
• selects scaffolding
• fits together tubes, support braces and components to form bases for scaffolds

• lifts and positions sections of scaffolding
• fits and bolts pipes and tubes together to build up scaffolding
• places planks over horizontal bars to create platforms
• verifies levels in scaffolding structures
• dismantles scaffolding.

11 Joske v Dental Cash Order Company Pty Ltd [1916] HCA 7; (1916) 21 CLR 172 at 178 (Isaacs J).

12 Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 at 691 (Denning LJ).

13 http://www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/1220.0Main%20Features11997?opendocument&tabname=Summary&prodno=1220.0&issue=1997&num=&view=

14 http://www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/5D42FC8A703B686ECA25697E00184D3B?opendocument

15 ‘Tasks This list specifies a representative list of the primary tasks performed in the occupation.’ http://www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/0DC436A3DA9DC198CA25697E00184D98?opendocument