2021 WAIRC 00618
[2021] WASCA 208

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION : PROGRAMMED INDUSTRIAL MAINTENANCE PTY LTD -v- THE CONSTRUCTION INDUSTRY LONG SERVICE LEAVE PAYMENTS BOARD [2021] WASCA 208

CORAM : BUSS J
MURPHY J
KENNETH MARTIN J

HEARD : 2 AUGUST 2021

DELIVERED : 3 DECEMBER 2021

FILE NO/S : IAC 5 of 2020

BETWEEN : PROGRAMMED INDUSTRIAL MAINTENANCE PTY LTD
Appellant

AND

THE CONSTRUCTION INDUSTRY LONG SERVICE LEAVE PAYMENTS BOARD
Respondent



ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : S J KENNER SC
D J MATTHEWS C
T B WALKINGTON C
Citation : 2020 WAIRC 00758
File Number : FBA 14 of 2019



Catchwords:

Industrial law - Employees - Long service leave - Portable long service leave benefit obligations of certain employers - Regime applicable to employers of employees engaged in the 'construction industry' as defined - Issue of statutory construction as to breadth of statutory definition of 'construction industry' - Industry partly defined by reference to employee activities performed 'on a site' - Issue as to whether definition limited to work performed on a construction site or building site as commonly understood - 'site' not defined by Act - Use of 'site' to differentiate activities as performed by same employees other than at another site such as at employer's premises

Legislation:

Construction Industry Portable Paid Long Service Leave Act 1985 (WA)
Industrial Legislation Amendment Act 2011 (WA)
Interpretation Act 1984 (WA)
Long Service Leave Act 1958 (WA)
Police Act 1892 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant
:
S K Dharmandanda SC & N L Pham
Respondent
:
J B Blackburn SC

Solicitors:

Appellant
:
Herbert Smith Freehills
Respondent
:
Jackson McDonald

Case(s) referred to in decision(s):


Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Aust-Amec Pty Ltd v Construction Industry Long Service Leave Payments Board (1995) 15 WAR 150, (1995) 62 IR 4 12
Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1
Brown & Root Energy Services Pty Ltd v Construction Industry Long Service Leave Payments Board [2001] WAIRC 02000; (2001) WAIG 665
Centurian Industries Ltd v Construction Industry Long Service Leave Payments Board (1991) 71 WAIG 1300
Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629
Commissioner for Revenue (ACT) v Dataflex Pty Ltd [2011] ACTCA 14; (2011) 5 ACTLR 271
Commissioner of Police v Ferguson [2019] WASCA 14; (2019) 54 WAR 177
Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Construction Industry Long Service Leave Payments Board v Precision Corporation Pty Ltd (Unreported, WASC, Library No 920130, 4 March 1992)
Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation [2011] FCAFC 154; (2011) 199 FCR 226
Greater Shepparton City Council v Clarke [2017] VSCA 107; (2017) 56 VR 229
Heffernan v Comcare [2014] FCAFC 2; (2014) 218 FCR 1
IC Cool Refrigeration, Mechanical and Electrical Services v Construction Industry Long Service Leave Payments Board [2017] WAIRC 00164
Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1
Ireland v Johnson [2009] WASCA 162; (2009) 189 IR 135
Lacey v Attorney General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v Director General, Department of Education and Training [2009] WAIRC 00225
Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Executive Director, Pilbara TAFE [2009] WAIRC 00291
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Transport Authority of Western Australia v Yoon [2017] WASCA 25
Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611
State School Teachers' Union of WA (Incorporated) v Director General of the Department of Education and Training [2010] WAIRC 00103
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; (2017) 347 ALR 405
The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404
Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379
Wacel Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; (1978) 140 CLR 503



BUSS & MURPHY JJ:

1 This appeal concerns the meaning of 'site' in the phrase 'on a site' in the definition of 'construction industry' in s 3(1) of the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (Act) as applied to the substantive provisions of that Act. We gratefully adopt the background, the legislative scheme, and the parties' arguments as outlined by Kenneth Martin J.
2 The long title of the Act is 'An Act to make provision for paid long service leave to employees engaged in the construction industry and for incidental and other purposes'.
3 Most relevantly for present purposes, s 3(1) defines 'construction industry' as:
construction industry means the industry -
(a) of carrying out on a site the construction, erection, installation, reconstruction, reerection, 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 byproducts from materials; and
(vii) bridges, viaducts, aqueducts or tunnels; and
(viii) chimney stacks, cooling towers, drilling rigs, gasholders 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, reerection, 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[.]
4 Subject to the operation of the exclusions in pars (d), (e) and (f), the definition of 'construction industry' in s 3(1) of the Act sets out three industries: the industry in par (a), the industry in par (b), and the industry in par (c). All three industries collectively constitute the 'construction industry' for the purposes of the Act. Nevertheless, it may be inferred that Parliament recognised that there may be some commonality of groups of employers and groups of employees across the three industries insofar as the Act also authorises the Minister to appoint to the Construction Industry Long Service Leave Payments Board established under s 5 of the Act 'one person who in the Minister's opinion represents the interests of employers in the construction industry', and 'one person who in the Minister's opinion represents the interests of employees in the construction industry': s 6(1)(d) and (e) of the Act.
5 The starting point in the process of construction is the ordinary and grammatical sense of the statutory words, interpreted having regard to their context and legislative purpose. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [4]; Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629, 647; Ireland v Johnson [2009] WASCA 162; (2009) 189 IR 135 [31]; Commissioner for Revenue (ACT) v Dataflex Pty Ltd [2011] ACTCA 14; (2011) 5 ACTLR 271 [42].
The word 'site' is not defined in the Act. In its ordinary meaning, 'site' refers to the area on which anything such as a building is, has been, or is to be, situated. Macquarie Dictionary (online version).
In the context of par (a) of the definition, with its multiple references to types of infrastructure works in addition to building works (subpars (a)(iia)  (xvii)), prima facie the word 'site' in the prefatory words in par (a) in its application to subpars (i)  (xvi) refers to an area on which building or infrastructure works of the kind mentioned in those subpars are, have been, or are to be, situated. The words 'on a site' give shape to the nature of the industry which is the subject matter of par (a) by identifying where the activities of 'construction, erection, installation …' are carried out. The words 'on a site' point to the location at which the activities mentioned in the first three lines of par (a) take place in respect of the buildings and other infrastructure works referred to in the subpars. Whilst it is true that some activities, such as 'demolition' would likely, perhaps inevitably, only occur 'on a site', it is not difficult to conceive that other activities of the kind specified in the first three lines of par (a) might not necessarily occur 'on a site'.
6 Subparagraph (xvii) then extends the scope of the definition of 'construction industry' in par (a) by adding, in effect, reference to the preparation of such sites for any buildings or infrastructure works referred to in subpars (i)  (xvi). Further, although not infrastructure in the conventional sense, the effect of subpar (xviii) is that the definition in par (a) also applies to land on which fences (other than farm fences) are, have been, or are to be, situated.
7 Paragraph (b) expands the scope of the definition of 'construction industry' by adding a second industry. The words 'on a site' in par (b) of the definition would ordinarily be read as having the same meaning as in par (a). Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611, 618.
The industry in par (b) is defined by reference to the carrying out of works, 'on a site of the' specified activities ('construction … demolition') in respect of the building and infrastructure works in par (a), 'for the fabrication, erection or installation of plant, plant facilities or equipment for those buildings or works'. It presupposes that there is a 'site' within the meaning of 'site' in par (a) at which the specified activities take place where the works of 'fabrication, erection …' are carried out 'for those' buildings or other infrastructure works.
8 Paragraph (c) adds a third industry, extending the scope of the definition of 'construction industry' by building on the definitions in pars (a) and (b). Paragraph (c) provides, in effect, that 'construction industry' also means the industry of carrying out work:
1. performed by employees engaged in the work referred to in par (a) or par (b); and
2. that is normally carried out 'on site' but which is not necessarily carried out 'on site'.
9 Thus, par (c) recognises that work for the purposes of pars (a) and (b) may not necessarily be carried out 'on site'. The words 'on site', at this point, are evidently used to give character to the type of work carried out by employees to which par (c) applies. Thus, it picks up a class of workforce beyond those working 'on a site' in the performance of the work referred to in par (a) or par (b), and identifies those persons in this workforce as coming within a further industry for the purposes of the definition of 'construction industry'.
10 Accordingly, and by way of general summary, when the definition of 'construction industry' is read as a whole, and in the context of the Act as a whole, the word 'site' in par (a) means, in effect, an area on which building or infrastructure works of the kind enumerated in its subpars are, have been, or are to be, situated.
11 The appellant, on the other hand, contended, in its written submissions, that the word 'site' in par (a) means 'a construction site or building site'. Appellant's outline of submissions, 3 November 2020, par 5.
In oral submissions, it defined its definition by contending that its phrase 'a construction site or building site' means: ts 18.

1. land on which [a] development is carried out, or [is] proposed to be carried out, or
2. [a] plot intended or suitable for a building.
12 In our opinion, the appellant, by its proposed construction, advances a very significant gloss on the ordinary meaning of 'site', which is not justified by the text, context or purpose of the Act. In particular, in its first aspect it leaves no scope for the word 'site' to include an area on which building or infrastructure works are already situated, and in its second aspect, it is inconsistent with the effect of subpar (xvii) of par (a) of the definition of 'construction industry' in s 3(1).
13 Further, in our opinion, the appellant's submissions to the effect that its construction is supported by the 'ordinary natural meaning' of the term 'construction industry' do not assist it. The statutory definition of 'construction industry' refers to three specified industries, none of which is defined in a way which uses the composite phrase 'construction industry'. The phrase 'construction industry' has no fixed ordinary meaning, or at least not one of any precision for present purposes, independent of the context in which the phrase is used. The appellant's reliance on its supposed industry meaning does nothing to illuminate the proper construction of the word 'site' in par (a) of s 3(1) which it advances in this appeal. It would be a theoretical exercise for the purposes of this appeal to delve into the asserted differences in the case law referred to by the appellant on the question of whether the ordinary natural meaning of a term may be used in the interpretation of the definition of that term. The cases referred to by the appellant included The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 419; Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation [2011] FCAFC 154; (2011) 199 FCR 226 [101]  [107]; compare Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 [20]; Heffernan v Comcare [2014] FCAFC 2; (2014) 218 FCR 1 [46]; Greater Shepparton City Council v Clarke [2017] VSCA 107; (2017) 56 VR 229 [74].

14 The definition which we prefer may not be materially different to that found by learned Commissioner Scott at first instance or by the Full Bench on appeal. However, to the extent that there is any difference, the construction of 'site' referred to in these reasons is, in our respectful opinion, a more apposite expression of the true meaning of the word for the purposes of par (a) of s 3(1).
15 The appeal should be dismissed.


KENNETH MARTIN J:

Introduction
16 This is an appeal against a decision of the Full Bench of the West Australian Industrial Relations Commission (WAIRC) that raises an issue of statutory construction.
17 The issue of law raised concerns the true meaning, and reach of, the defined term 'construction industry' as seen deployed in s 3(1) of the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (as amended) (the Act).
18 By the Act, employer entities who engage employees in the construction industry (as defined) are obliged to make long service leave payments to a statutory body established by the Act, namely the Construction Industry Long Service Leave Payments Board (the Board). Noting that this body is established by s 5(1) of the Act.
The Board, who is the respondent in this appeal, is required to hold and invest funds for the benefit of employees registered under the Act.
Background
19 A dispute arose on 12 July 2018 when the respondent Board notified the appellant, Programmed Industrial Maintenance Pty Ltd (PIM), that it (PIM) was required to register as an 'employer' under the Act. Pursuant to s 30(1).

20 Registration as an employer carries various obligations, including to render regular payments to the Board in respect of employees (as defined). The required payments to the Board are calculated by reference to long service entitlement contributions in respect of an employee's ordinary pay (as defined). S 34(1) of the Act.

21 Whilst there is no dispute that PIM's employees fully meet the statutory definition of 'employees', PIM resists the Board's position that as at 12 July 2018, it meets the criteria of an 'employer' under the Act. See s 3(1).
Instead, PIM contends it was not lawfully required to register as an employer and as such, was not obliged to pay to the Board long service leave contributions in respect of its employees.
22 Broadly speaking, the primary basis for PIM's contention is that as alleged, its employees engaged in work at fully established clients premises and as such, its employees cannot be classified as engaged in the 'construction industry' as the term is ordinarily understood.
23 Accordingly, by reason of what PIM assessed as the Board's error as to the meaning and more limited sphere of application of the term 'construction industry' under the Act, PIM sought a review of the decision of the Board - against it being required to register as an employer. Review sought pursuant to s 50(1)(b) and 50(2) of the Act.

Scott CC's review of the Board's decision at first instance
24 A review of the Board's decision of 12 July 2018 came to be conducted before Chief Commissioner Scott in the West Australian Industrial Relations Commission ('the WAIRC) on 8 April 2019.
25 In conducting the review, Scott CC addressed the matter as a preliminary issue - specifically the issue of statutory construction over the true meaning of the term 'construction industry' in the Act.
26 By her reasons for decision published on 6 December 2019, Scott CC essentially rejected PIM's arguments as to a contended narrower scope of the term 'construction industry' under the Act - namely that the term is limited to persons engaged to work on construction sites or at building sites. [2019] WAIRC 00843.

27 Instead, Scott CC concluded that the word 'site', correctly understood, meant a place at which any of the activities listed under subpars (a)(i) through to (xviii) of the definition of 'construction industry' were being performed and thereby is not limited to just construction sites or building sites. [2019] WAIRC 00843 [74].

28 Accordingly, Scott CC affirmed the Board's decision to require PIM to register as an 'employer' under the Act and dismissed PIM's application.
Appeal to the WAIRC Full Bench
29 There followed an appeal by PIM against the review decision of Chief Commissioner Scott, to the Full Bench of the WAIRC. The appeal was duly determined on the papers by a WAIRC Full Bench, comprising Senior Commissioner S J Kenner and Commissioners D J Matthews and T B Walkington. [2020] WAIRC 00758.

30 On 2 September 2020, the Full Bench delivered its reasons, rejecting PIM's appeal for reasons that were largely in alignment to those as provided by Scott CC at first instance. Kenner SC delivered the primary reasons of the Full Bench, with Commissioners Matthews and Walkington agreeing.
A further appeal to this Court
31 Subsequently, PIM pursued a further appeal as appellant to this Court, with the Board as the respondent. Appellant's Notice of Appeal (Appeal Book, tab 1).
The appeal again raises the same statutory construction issue as determined adversely to PIM at all lower avenues of appeal.
32 There were initially two grounds of appeal pursued. But the second of PIM's two grounds was jettisoned before the appeal hearing conducted in this Court. Appellant's Outline of Submissions (Appeal Book, tab 3) at par 5.
Consequently, only one ground is ultimately is pressed by PIM.
33 As expressed in their Notice of Appeal filed 23 September 2020, PIM's residual ground 1 reads:
1. The Full Bench of The Western Australian Industrial Relations Commission erred in law in interpreting the term 'site' appearing in the definition of 'construction industry' in section 3 of the Construction Industry Portable Paid Long Service Leave Act (1985) as a place or location at which things occur rather than as meaning a construction site.
34 As exposed, the 'heart' of PIM's sole ground concerns the true meaning of the term 'construction industry' in s 3(1) of the Act and specifically by that challenge, the true meaning of the word 'site' deployed therein.
35 Before turning in greater detail to the parties' respective positions and the determinations reached by the WAIRC at first instance and on appeal, it is necessary to expose the key definition of the term 'construction industry' within s 3(1) of the Act, and as well, the related terms 'employer' and 'employee' which are both framed by reference with the key term 'construction industry'.
Statutory definition of construction industry, employer and employee
36 Section 3(1) of the Act provides some enumerated definitions on a basis they carry the meanings indicated 'unless the contrary intention appears'.
37 Residing under that chapeau, the Act's definitions read:
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);
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;
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 sewerage 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, gasholders 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 sits 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;
Preliminary observations concerning the term 'construction industry'
38 I take the opportunity at an early point to highlight the following relatively uncontroversial aspects of the definition of 'construction industry' in s 3(1) of the Act:
1. As now seen, the definition of 'construction industry' carries knock on repercussions for other defined terms, including for 'employee' and 'employer' as used within s 3(1) of the Act.
2. The language used under the s 3(1) definition of 'construction industry' is demonstrably comprehensive.
3. The pervasiveness of the definition 'construction industry' is seen by its repeated use, even in the long title of the Act which reads:
An Act to make provision for paid long service leave to employees engaged in the construction industry and for incidental and other purposes. (my emphasis in bold)
4. Within subpar (a) of the definition of 'construction industry' two essential components of the definition are seen. The first is the wide-ranging work activities identified in the preface of subpar (a), embracing there not merely activities of construction, erection and installation, but extending to capture what might be described as lesser magnitude activities such as alteration, maintenance or repairs. The second component of subpar (a) emerges in the breadth of the 19 mentioned places or subject matters identified by Roman Numerals (i) to (xviii) - at which the as mentioned work activities might be performed. It will also be noticed that only one of the subjects (identified by (i)) is in relation to 'buildings'.
5. Subpar (a) of the definition of 'construction site', by its preface, deploys the key phrase 'on a site'. Subpar (b) in its definition then manifests the same terminology as follows:
… 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; (my emphasis in bold)
6. A like but not identical expression, namely 'of site' is seen used within subpar (a)(xvii) and as well, the expression 'on site' is used twice under subpar (c). Ordinarily, a difference in terminology towards the word 'site' (in this case by omission of the indefinite word 'a') might possibly connote some intended distinction of meaning underlying a particular legislative intent. For the present circumstances however, it is difficult to gauge an intended distinction.
7. A broad definition of 'construction industry' as seen under the preface of subpar (a) and then by the multiplier effect of the activities identified in (i) through to (xviii), goes even further. The (a) outcome is further built upon by the effects of subpars (b) and (c), which further augment the definition coverage.
8 Subpar (b) builds upon the subpar (a) platform by adding the extra subject matters of 'plant, plant facilities or equipment' upon which those work activities identified under subpar (a) can be carried out as to fall within the definition of construction industry. It is also apparent that the activities as found under subpar (b) (vis-à-vis plant, plant facilities or equipment) do not carry an equivalent subpar (a) reference to 'maintenance of or repairs to'.
9. Subpar (c) of the definition then extends the definition coverage even further - to capture work performed by employees referred to in subpars (a) or (b) that is normally carried out 'on site', but which is 'not necessarily' carried out on site. Subpar (c) is therefore both expansionary to (a) and (b) and somewhat protective in its intent in seeking to cover an employee's work activities that are not, as a matter of fact, carried out on site but would normally be so performed.
10. Subpar (c), viewed in context and by a dual use of the phrase 'on site', looks to be attempting to cover situations where the expansive reach of the definition (by reason of the effects of subpar (a) and subpar (b)) might otherwise be thwarted. In other words, subpar (c) looks to cover what might be viewed as abnormal on-site works being performed by the persons off-site under an endeavour to escape the ambit of subpars (a) and (b).
11. On my assessment, subpar (c) carries an implicit legislative recognition that the phrase 'on a site' as used by subpars (a) and (b) might, in its factual application, impact against the breadth of intended industry coverage - were there to be a performance of work at an abnormal location. That undesired result is drawn back in to be covered by the work of subpar (c) in the definition.
12. Attention may then be directed to subpars (d), (e) and (f) of the definition. As seen, they designate work areas of express exclusion from the as deployed statutory definition of construction industry. Nevertheless, their content signals the breadth of scope of the preceding subpars (a), (b) and (c) - in the sense that a carrying out of works on ships See subpar (d).
or the mere maintenance of or repairs or minor alterations to lifts or escalators See subpar (e).
- might otherwise stand in some jeopardy of being captured under the reach of the definition under subpars (a), (b) and (c).
13. Likewise, the excluding content of par (f) highlights that the exclusion of routine or minor nature repairs of maintenance was needed to excise that work from the potential breadth of coverage of the industry definition.
14. In the same way, subpar (a)(xviii) of the definition, which includes fences (other than fences on farms) within the definition's reach, highlights the expansive breath and scope of the industry definition.
16. A last matter to be highlighted by reference to the definition is that the word 'site' is not a term expressly defined under s 3(1) of the Act.
39 Having now examined the term 'construction industry' as deployed in the Act, and given that the Act itself concerns the provision of long service leave benefits to workers in the construction industry, I turn now to discuss the law surrounding long service leave benefits in WA generally.
The law concerning long service leave benefits in WA
The Long Service Leave Act 1958 (WA)
40 It is first convenient to render some brief background observations concerning the earlier and more general statutory regime for paid long service leave, namely the Long Service Leave Act 1958 (WA). That legislation was the subject of extensive consideration by this court in Public Transport Authority of Western Australia v Yoon. Public Transport Authority of Western Australia v Yoon [2017] WASCA 25 (Buss P, Murphy & Martin JJ).

41 Emerging out of that legislation is a general obligation for employers to provide paid long service leave to their employees - upon an employee's completion of 10 years of continuous service. See part 4 of the Long Service Leave Act 1958 (WA) and in particular s 8 therein.
In addition, the Long Service Leave Act 1958 (WA) makes provision for a payment in lieu of the employees taking of long service leave, applicable where at least 7 years of continuous employment with the employer has been completed. Long Service Leave Act 1958 (WA) s 8(3).

42 Under that general regime, an employer does not carry any exposure to providing paid long service leave, or the making of a payment in lieu, if the employee ended the employment prior to completing the minimum period of service as specified. That period being 10 years pursuant to s 8(2) of the Long Service Leave Act 1958 (WA).

43 This general entitlements regime (which has counterparts around other Australian jurisdictions), stands to be contrasted against the later regime for socalled 'portable' long service leave payments under the Act. Plainly, the new regime makes provision for the payment of money in lieu of taking long service of leave, and the payments are made by the Board - not by an employer. Entitlement to the payment does not depend upon a period of continuous service with a particular employer, although a 'one employer' situation can potentially engage with the parameters of the Act. See generally s 21 of the Act.
Section 21 of the Act explains that periods of interrupted service by an employee in the construction industry with numerous employers can, in the designated circumstances, engage with the criteria for the receiving of a payment from the Board. See s 21(2) of the Act.

44 The legislative regime was referenced and discussed in a number of case authorities.
Case authorities
45 In the 1992 decision of Construction Industry Long Service Leave Payments Board v Precision Corporation Pty Ltd, Construction Industry Long Service Leave Payments Board v Precision Corporation Pty Ltd (Unreported, WASC, Library No 920130, 4 March 1992) (Precision).
Owen J discussed the Act and its concept of a 'portable' long service leave benefit, in these terms:
The Scheme of the Act.
The Act embodies the concept of providing long service leave based on service to an industry rather than service to a single employer. Instead of being eligible for long service leave after fifteen years of service to one employer, employees in the construction industry become eligible after fifteen years service in the industry.
The legislation provides for a portable long service leave scheme for employees who may move from one employer to another or others but who remain within the construction industry.
To be eligible for benefits under the scheme, employees must be registered (s 21). All employers in the construction industry must be registered (s 30). To meet the costs of the scheme each employer pays a contribution to the plaintiff based on a percentage of their employees' ordinary pay (as defined in s 3) except in the case of apprentices, for whom no contribution is made (s 31 and s 34(1)). The scheme enables registered employees to carry their long service leave entitlements from employer to employer as the responsibility for payment for long service leaves rests with the plaintiff rather than the individual employer.
46 These observations in Precision remain as a helpful explanation of the regime under the Act. In 1995, the same observations were used by Ipp J in his Honour's explanation of the scheme of the Act in AustAmec Pty Ltd v Construction Industry Long Service Leave Payments Board. Aust-Amec Pty Ltd v Construction Industry Long Service Leave Payments Board (1995) 15 WAR 150, (1995) 62 IR 4 12, 151 - 152 (Aust-Amec).

47 Since 1995, there have been several amendments to the Act. See especially the amendments as effected under s 5(1), (2) and (3) of the Industrial Legislation Amendment Act 2011 (WA).
Significantly however, I note that the demonstrably comprehensive definition of 'construction industry' has essentially remained unaltered since the introduction of the Act in 1987. I point out that Ipp J in Aust-Amec did not need to grapple directly with the issue of the true meaning of the word 'site' as used within the definition of 'construction industry' in the Act. Instead, his Honour's reasons were focused upon work that was carried out at the employer's premises by employees. That work was found to be outside the scope of coverage of the Act. Aust-Amec pages 160 - 161.

48 It is convenient to observe next that the statutory construction point as now advanced by PIM, has been previously considered and invariably rejected by the WAIRC.
49 In 2001, Commissioner J H Smith (as the former Acting President then was - now Smith J of the Supreme Court of Western Australia) delivered reasons for decision in Brown & Root Energy Services Pty Ltd v Construction Industry Long Service Leave Payments Board. Brown & Root Energy Services Pty Ltd v Construction Industry Long Service Leave Payments Board [2001] WAIRC 02000; (2001) WAIG 665 (Brown & Root).

50 Upon the same point of statutory construction that now underlies PIM's sole ground of appeal, Smith C observed: Brown & Root [26] - [29].

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 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 of subparagraphs (i) to (xviii) of s.3(1)(a) of the Act.
[28] Further ... although this issue was not directly raised in AustAmec, the construction contended on behalf of the Applicant is inconsistent with the reasoning of Ipp J in AustAmec. 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 subparas (i) - (v), (xiii) - (xiv), (xvi) and (xviii) of s.3(1)(a) of the Act.
51 Smith C's rejection of the argument seeking then to limit the scope of application of the definition of 'construction industry (to works carried out at a site where construction work is carried out) has been followed in a number of ensuing decisions in the WAIRC concerning recalcitrant employers designated by the Board. See, for instance, Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v Director General, Department of Education and Training [2009] WAIRC 00225; Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Executive Director, Pilbara TAFE [2009] WAIRC 00291; State School Teachers' Union of WA (Incorporated) v Director General of the Department of Education and Training [2010] WAIRC 00103; IC Cool Refrigeration, Mechanical and Electrical Services v Construction Industry Long Service Leave Payments Board [2017] WAIRC 00164.

Extrinsic materials
52 I turn to expose some aspects of the 1985 Second Reading Speech of the Construction Industry Portable Paid long Service Leave Bill. Hansard Western Australia, Parliamentary Debates, Legislative Assembly, 17 September 1985, 1026  1031 (Second Reading Speech).
PIM looks to rely on this material as providing some support for the contended narrower meaning of the term 'construction industry' as defined within the Act. The extrinsic material is called in aid pursuant to s 19(1)(b)(i) of the Interpretation Act 1984 (WA).
53 The responsible Minister said at the time: Second Reading Speech, 1028.

In proposing to Parliament that employees in the construction industry be enabled to participate in entitlements enjoyed by employees in other industries, Government is not advocating any change to standards which currently apply.
Indeed, employees in the construction industry are already entitled to long service leave by virtue of either their award or the Long Service Act. However, the nature of the industry is such that they are effectively denied the opportunity of enjoying the entitlement.
54 Later, the Minister continued: Second Reading Speech, 1029.

[The construction industry] is characterised by the short-term nature of employment contracts. This is an industry in which the mobility of labour is such that most employees are unlikely to become eligible for long service leave.
55 Concluding his speech, the Minister said: Second Reading Speech, 1030.

The provisions of this Bill seek to make arrangements whereby employees in the construction industry in Western Australia can actually enjoy an entitlement which is already prescribed but, because of the intermittent nature of employment in the industry, is rarely enjoyed.
56 PIM relies on this material by reference to its suggested reading of the phrase 'on a site' as being a reference to either a 'construction site' or a 'building site' as ordinarily understood. PIM argues that this construction is, in effect, the ordinary meaning of the phrase 'the construction industry' - and as such should stand as the meaning of 'site' as deployed in the Act.
57 With the law and relevant extrinsic materials surrounding long service leave benefits now exposed, I turn to discuss the statutory construction principles relevant to the present dispute.
Principles of statutory construction
58 There was no major disagreement between the parties (save in a respect discussed later in these reasons) over the principles of statutory construction applicable to the present task. Those principles are found extensively discussed by both Scott CC [2019] WAIRC 00843 [45] - [51].
and later in the Full Bench reasons of Kenner SC. [2020] WAIRC 00758 [18] - [20].

59 Given those principles are well settled, I mention only three leading case authorities relevant towards the present exercise. First, I mention the observations of Buss J as the presiding member of the Industrial Appeal Court in The Commissioner of Police v Ferguson. Commissioner of Police v Ferguson [2019] WASCA 14; (2019) 54 WAR 177.
In that appeal, Buss J addressed the principles of statutory construction relevant to the interpretation of s 33W of the Police Act 1892 (WA). Conducting the exercise by reference to High Court authorities, his Honour observed: The Commissioner of Police v Ferguson [70] - [73].

70 In Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself' [39].
See also Saeed v Minister for Immigration and Citizenship; Thiess v Collector of Customs.
71 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the existing state of the law, the history of the legislative scheme and the general purpose and policy of the provision (in particular, the mischief it is seeking to remedy). See CIC Insurance Ltd v Bankstown Football Club Ltd; Project Blue Sky Inc v Australian Broadcasting Authority; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.
72 The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.
73 As Crennan J noted in Northern Territory v Collins, '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ; [2006] HCA 11), not least because such material may confuse what was "intended … with the effect of the language which in fact has been employed" (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC)' [99]. That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act 1984 (WA). In other words, the statutory text, and not nonstatutory language seeking to explain the statutory text, is paramount. See Nominal Defendant v GLG Australia Pty Ltd. (footnotes omitted)
60 Second, a significant decision concerning statutory interpretation was provided by the joint reasons of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection. SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; (2017) 347 ALR 405 (SZTAL).
Their Honours had observed there that: SZTAL [14].

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of the word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
61 Gageler J, in providing separate reasons towards situations where a court is confronted with a 'constructional choice' towards the possible meanings of a statute, observed: SZTAL [37] - [39].

37 ... The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility 'if, and in so far as, it assists in fixing the meaning of the statutory text'.
38 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural', in which case the choice 'turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies'.
39 Integral to making such a choice is a discernment of statutory purpose ... (footnotes omitted)
62 Gageler J's observations in SZTAL are presently relied upon by PIM to bear upon two aspects of its arguments supporting a narrower construction of the term 'construction industry' as deployed in the Act. First, PIM submits that its contended meaning of 'construction industry' (which would limit the application of the definition only to nominated activities carried out at either building sites or construction sites) is open as one possible constructional choice. It is a meaning that PIM, invoking the observations of Gageler J, says is not wholly ungrammatical or unnatural. See Appellant's Outline of Submissions at par 22.
Next, building from the assumed platform of that construction being open, PIM says that its contended meaning of the defined term 'construction industry' is a better fit overall - measured against the statutory purpose of the Act. Appellants Outline of Submissions at pars 31 - 38.
This point will be elaborated upon later in these reasons.
63 The last case authority I mention regarding statutory construction is Commonwealth v Baume. Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 (Commonwealth v Baume).
It provides longstanding authority for the proposition that the task of statutory interpretation should proceed on a basis of assuming that words in legislation be afforded some measure of coherent utility. Put in more colloquial terms, text deployed within legislation ought to be assessed on the basis that it has some 'work to do'. The more recent observations in Project Blue Sky Inc v Australian Broadcasting Authority Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
reaffirm this principle.
64 Next, I turn to consider at greater length the reasons as provided by Scott CC in the WAIRC, on her review of the Board's decision at first instance.
Scott CC's reasons at first instance
The preliminary issue
65 As already mentioned, Scott CC's review of the Board's decision proceeded on the basis of a determination of preliminary questions.
66 The review was conducted in the context of a basal submission of PIM that the Board erred in its decision as follows: [2019] WAIRC 00843 [1].

…PIM says that this decision [ie, the decision of the Board of 12 July 2018 requiring PIM to register as an 'employer' under the Act] is in error because PIM does not engage employees 'in the construction industry' as defined by the Act because:
(a) Its employees do not perform work 'on a site', as that term is used in the Act;
...
67 Scott CC proceeded to identify the relevant issues for determination. [2019] WAIRC 00843 [3].
Only the first of these issues remains relevant before this Court. As stated, preliminary question 1(a) was:
Whether the applicant's employees performing work at the applicant's clients' premises carry out work 'on a site' within the meaning of the definition of 'construction industry' in section 3(a) [sic] of the Act.
Agreed facts
68 The review conducted before Scott CC proceeded on the basis of a detailed statement of agreed facts as settled between the parties for the purpose of determining the preliminary question. [2019] WAIRC 00843 [6].

69 The agreed facts included an overview of PIM's operations in Western Australia at 12 July 2018 (being the date of the Board's decision requiring PIM to register as an employer under the Act). [2019] WAIRC 00843 [6] - [44].

70 The key facts were conveniently summarised in PIM's written submissions dated 3 November 2020. A convenient starting point is the following agreed fact(s): See Appellant's Outline of Submissions at par 7.

(a) PIM undertakes maintenance of and repairs to existing operating assets. PIM does so at locations that predominantly comprise established buildings, structures and plant and equipment that have been operating for many years.
(b) Most of PIM's activities in Western Australia involve providing supervised labour to conduct maintenance and shut down services to existing plant and equipment at established operational locations in the mining and resources sectors.
(c) The scope of work done by PIM's employees falls into three main categories: ongoing maintenance, shutdown maintenance and project work. Ongoing maintenance involves PIM supplying labour to work alongside a client's employees and crew undertaking routine, planned, reactive or ongoing maintenance. This is largely mechanical maintenance. Shut down maintenance is scheduled maintenance that requires some or all of a client's plant and equipment to be shut down for the maintenance to be done. It is designed to sustain current operating assets. Project work consists of one-off projects of between $200,000 and $300,000. An example is fabricating a steel beam and then installing it at a client's location to replace a steel beam that has worn away under normal use. PIM does not work on 'greenfield' projects (new projects under construction) or provide any maintenance services to the building and construction industry, as commonly understood.
(d) PIM owns and operates two workshops in Western Australia. These workshops do not operate on a standalone basis and, instead, support PIM's ongoing maintenance, shutdown maintenance and project work functions.
(e) PIM is usually engaged by its client's 'umbrella' agreements. The scope of services described under such a contract is indicative of, but may not perfectly reflect, the actual work performed at a particular location. None of the contracts provide for the construction of plant or equipment. (references omitted)
71 I augment these facts to a small degree, by a few more facts as extracted from the reasons of Scott CC. See [2019] WAIRC 00843 [6] - [12].

72 The further facts are:
(a) As at 12 July 2018, PIM's employees performed duties mainly for core clients pursuant to commercial contracts which PIM had entered with those clients to perform maintenance work at the clients' premises. [2019] WAIRC 00843 [6].

(b) As at 12 July 2018, PIM employed 1,694 employees in Western Australia. Of that cohort, 787 employees were permanent and 907 were casual employees. [2019] WAIRC 00843 [6].

(c) The average length of service of PIM's employees was 3.4 years. It is worth noting that by reference to the Long Service Leave Act 1958 (WA) which governs long service leave entitlements more generally, this period of service would fall short of the 10 year continuous employment requirement to qualify for paid leave or a payment in lieu thereof. See Long Service Leave Act 1958 (WA) s 8(2).
It also falls well below the 7 year requirement for an employee to receive a proportionate amount of long service leave in respect of their continuous employment. Long Service Leave Act 1958 (WA) s 8(3).

(d) Generally speaking, PIM's employees (excluding managerial and supervisory employees) that were provided to clients at differing locations, included workers in the fields of: [2019] WAIRC 00843 [7].

(i) Boilermakers/welders;
(ii) Riggers;
(iii) Scaffolders;
(iv) Mechanical fitters/pipe fitters;
(v) Mechanical tradespeople (ie, machinists/diesel fitters/motor mechanics);
(vi) Painters and blasters (industrial);
(vii) Crane operators;
(viii) Trades assistants.
(e) In Western Australia, approximately 60% of PIM's revenue was generated from ongoing maintenance work, 30% from shutdown maintenance work and 10% from project work. [2019] WAIRC 00843 [12].
The proportions of employees in each of those areas is split along approximately the same lines.
(f) PIM did not undertake work on any 'greenfields' projects - in other words, projects in their construction phase. Rather, PIM undertook work on 'brownfields projects' - that is, projects aimed at sustaining the operation of existing plant and equipment by maintaining or replacing structures or plant on a 'like for like' basis. [2019] WAIRC 00843 [22].

(g) For the purpose of conducting the review task, Scott CC received a witness statement by PIM's regional manager for Western Australia, Mr Bruce Noel Kennedy. Mr Kennedy's essentially unchallenged evidence is found exposed at [2019] WAIRC 00843 [33] - [44].
Presently, I draw attention to two aspects of Mr Kennedy's evidence. First, as Scott CC observed: [2019] WAIRC 00843 [37].

Mr Kennedy says that PIM only undertakes maintenance of and repairs to existing operating assets and does not provide any maintenance services to the building and construction industry. By that, it is meant that none of PIM's employees is involved in or deployed to locations where the owner of the location, or any other person, builds or constructs buildings, structures or plant and equipment which was not already in place on the location before PIM was engaged to provide people to that location. It does not provide any services in respect of any 'greenfields projects, including in the mining and resources sectors. Its employees are deployed on sites where new buildings and construction occurs, however PIM is not involved in those activities.
[I would emphasise Mr Kennedy's commencing reference to a key distinction between maintenance and repairs to existing operating assets, by contrast to his observations of PIM not providing any maintenance services to 'the building and construction industry'. [2019] WAIRC 00843 [37].
Needless to say, Mr Kennedy's subjective views as to the scope of the building and construction industry do not bear on the objective task of statutory construction concerning the term 'construction industry' as defined by the Act.]
73 Lastly, I draw attention to the concluding summary of Mr Kennedy's evidence as provided by Scott CC: [2019] WAIRC 00843 [44].

In summary, the works undertaken by PIM's employees is either or both of the repair, maintenance or replacement of established plant and equipment or the components of the plant and equipment. It is done on either a planned preventative basis or to deal with repairs, maintenance or replacements as issues arise. The work is conducted on the plant and equipment of PIM's clients on the clients' premises at mines, refineries, smelters, factories and at a port. Some, but a smaller part, is work undertaken at PIM's workshops to support the work at clients' premises.
Purpose and policy objectives of the Act
74 After addressing the text and structure of the Act, the learned Chief Commissioner observed that the Act 'does not otherwise express a purpose or policy'. [2019] WAIRC 00843 [52].

75 Scott CC continued: [2019] WAIRC 00843 [53] - [54].

53 However, inferences may be drawn from the Act as a whole. The scheme of the Act provides for the establishment of the Board for the purposes of the Act (s 5). The Board carries out the administration of the Act (s 14). Employers and employees, who meet the definitions in the Act, are registered with the Board (Part IV - Registration). An employer is required to keep certain records and make reports to the Board and to make payments to the Board as contributions calculated by reference to the ordinary pay payable to each employee (s 31).
54 Each person registered as an employee under the Act is entitled to specified periods of long service leave in respect of service in the construction industry, and is entitled to be paid ordinary pay for such leave (s 21). Service in the construction industry is not required to be continuous nor is it required to be with one employer (s 21(2)(c)).
76 I would respectfully endorse those contextual observations.
77 In the Full Bench reasons, Kenner SC indicated that where presented with various possible meanings for that word 'site' - neither of which are wholly ungrammatical or unnatural Kenner SC citing Gageler J in SZTAL (to which I have earlier referred).
 - it is necessary to evaluate the consistency of the possible meanings with the object and policies of the Act, having regard to s 18 of the Interpretation Act 1984 (WA). [2020] WAIRC 00758 [42].
The learned Senior Commissioner noted that Scott CC had considered those matters only later in her reasons, At [2019] WAIRC 00843 [97].
but noted that at the end, nothing material emerged towards showing error from the ordering of the analysis as conducted by Scott CC. [2020] WAIRC 00758 [42].

78 Next, turning to the policy objective of the Act, Scott CC had observed that PIM's stance upon the preliminary question was that it was: [2019] WAIRC 00843 [97].

... uncontroversial that 'the mischief which the Act attacks is a difficulty that employees in the construction industry face in qualifying for long service leave because of the itinerant nature of the work in that industry'. (references omitted)
79 The learned Chief Commissioner then referred to aspects of the Second Reading Speech towards the Construction Industry Portable Paid Long Service Leave Bill 1985 (WA). In particular, the Minister made reference to the 'short term nature of employment contracts' and the 'itinerant nature of employment in the industry'. [2019] WAIRC 00843 [98] - [99] referring to Second Reading Speech, 1029.

80 Scott CC proceeded to observe by reference to the Second Reading Speech: [2019] WAIRC 00843 [100] - [101].

However Parliament did not use the words 'building and construction industry' in the statute. Nor did it make explicit in any statement of object or purpose that the sites referred to were the sites of new building or construction works. It defined the construction industry in such a way that goes well beyond the ordinary meaning of 'building and construction industry' as it would normally be understood.
Had Parliament meant to limit the Act to employees engaged in short term contracts or intermittent work, or to such employment on building sites, it could easily have expressed that intention. However, it did not.
81 Scott CC then recounted multiple decisions of the WAIRC (post 1991) which either recognised or accepted the Act's broad definition of 'construction industry'. She observed that the broad industry definition as deployed by the Act extended even more widely - to cover employees viewed as mere itinerant construction workers - noting that the Act was 'obviously directed' to these types of workers. See especially [2019] WAIRC 00843 [103] referring to Centurian Industries Ltd v Construction Industry Long Service Leave Payments Board (1991) 71 WAIG 1300, 1301.

82 Scott CC also noticed some observations by Owen J in Precision. As I related earlier, Owen J in Precision had referred to the purpose of the Act and to mischief it aimed to address as follows: Precision, 9.

I believe that I can decide this case by looking at the plain meaning of the words used. There is, in my view, no ambiguity. I should say that to the extent which it is necessary I would favour the purposive approach. The mischief which the Act attacks is the difficulty which employees in the construction industry face in qualifying for long service leave because of the itinerant nature of workers in the industry. The dominant purpose of the Act is to provide a mechanism for the employee to transport long service leave credits from employer to employer. The impost on the employers is a secondary, although essential, purpose. It is the means by which the scheme is funded.
83 Towards those observations by Owen J, Scott CC had observed, as follows: [2019] WAIRC 00843 [105] - [108].

105 However, I respectfully note that the Act itself does not express that purpose, and this view has, in my view, placed artificial boundaries around the description of the industry which is not actually reflected in the Act. The conclusion that the Act is directed to itinerant workers is, in my respectful opinion, in error. It creates a priori assumption. Rather, it is necessary to derive the purpose from what the legislation says. Whether the nature of the work, the employees and employers meet the definitions in the Act are the determining factors, rather than a subjective purpose not expressed in the Act.
106 The purpose of the Act, in accordance with its title and other clauses to which I have referred, is to create one long service leave system to apply to employees who work in the construction industry. It is and can only be that industry as defined by the statute.
107 As I noted earlier in these Reasons, the Act provides a definition that encompasses the wide variety of activities which are performed to a range of buildings, structures and works. The Act provides that it is service in the industry not service with the employer that counts (s 21(1)). It does not have to be continuous service (s 21(2)(c)), but it may be (s 21(2)(d)). An employee may serve one or more employers for lengthy periods of times, even to the point of accruing sufficient service to accrue a period of leave with one employer.
108 There is no requirement in any of the terms of the Act that either the place of work varies regularly or that the employment itself is of a limited duration.
84 I would endorse these observations of Scott CC, save for the fact that I do not read Owen J's 1992 observations as suggesting that the Act was limited in its textual application to those itinerant workers in the construction industry who had experienced difficulty qualifying for long service leave. Undoubtedly, that issue had provided the catalytic stimulus for Parliament to enact legislation that became the Act. But having occasioned that step, it is always the text of the ensuing legislation which fundamentally needs to be assessed.
85 There could have been a multiple ways, both narrow or wider ranging, for Parliament to address a perceived policy problem posed by employees not qualifying for traditional long service leave entitlements - under the Long Service Leave Act 1958 (WA), by reason of not them serving out a continued period of service with one employer. However, as has been seen, the solution ultimately chosen by Parliament was to address that objective on a broad basis.
86 Specifically, under the terms of the Act, Parliament proceeded on a basis of laying down an exhaustive definition of 'construction industry', and then, using that wide definition to prescribe obligations for employers engaging employees in the construction industry (as so broadly defined).
87 Accordingly, the found suggestion in Scott CC's reasons - that Owen J's reasons in Precision had sought to confine the application of the text of the Act merely to itinerant workers within the construction industry, is not supported.
88 I prefer the approach of Kenner SC in delivering the primary reasons of the Full Bench in these proceedings. Kenner SC had said: [2020] WAIRC 00758 [43].

It was common ground at first instance that the mischief sought to be addressed by the Act was the difficulty for those engaged in the construction industry to qualify for an entitlement to long service leave. This was accepted to be due to the inherently itinerant nature of the industry, with employees moving from job to job and not remaining in employment with one employer long enough to qualify under the LSL Act applying to employees generally throughout the State. That this was the motivation for bringing the Bill into the Parliament, is evident from the Second Reading Speeches referred to earlier in these reasons.
89 Kenner SC proceeded to observe: [2020] WAIRC 00756 [49].

As noted by the learned Chief Commissioner, the word 'site' is not defined in the Act. In these circumstances, as she did, dictionary definitions may be resorted to in assisting the resolution of disputes as to meaning. Whilst this may be done, caution has been expressed that in using dictionaries to assist in ascertaining the meaning of a word used in a statute, which might identify a range of possible meanings, statutory context is always of importance (see D. Pearce Statutory Interpretation in Australia 9th Ed at pars 3.33 - 3.34)…
90 Kenner SC continued: [2020] WAIRC 00756 [51].

The legislative history forms part of the context ... As the Parliamentary debates reveal, similar statutory schemes for long service leave in the building and construction industry have existed in other States for many years. All seem to have been introduced to overcome the same mischief with which the Act is concerned, that being the inherent itinerant nature of employment in the building and construction industry, as characterised as project to project employment, meaning employees not having the required length of service to qualify for long service leave under the general schemes applying to all employees. This industry-specific, portable long service leave scheme, was to be set apart from the general long service leave legislation in each State, applying to employees generally which, but for the Act and its corresponding legislation in other States, would cover employees in the construction industry.
91 Towards Owen J's observations, Kenner SC observed: [2020] WAIRC 00756 [54].

The learned Chief Commissioner had regard to the decision in Precision at [104] - [106]. She acknowledged the observations of Owen J as to the mischief sought to be addressed by the Act, which as I have said, appeared to be common ground in these proceedings. However, given the approach she took to the breadth of the definition of construction industry in s 3(1), read in the context of the Act as a whole, the learned Chief Commissioner said the legislation should not be viewed as limited only to itinerant employees. This conclusion was correct. It is one thing to observe that the mischief sought to be addressed by a statute is X, it is another to conclude that a statute is limited to X, when having regard not only to its history and context, but its text, read in its entirety. Put another way, such a conclusion as to the stated mischief to be addressed by the Act cannot, on the authorities, delineate the outer boundaries of the Act, if such a conclusion conflicts with its full text.
92 I agree with those observations of Kenner SC, save for the fact that, as mentioned, I do not evaluate the reasons of Owen J in Precision as limiting the application of the Act merely to itinerant employees. There presents, as Kenner SC's reasons clearly explain, a fundamental distinction between a problem that provides a basis for Parliament to enact a legislative solution - in contradistinction to the parameters of the solution once it is eventually provided by legislative text set to become law. One will not necessarily equate to the other.
93 I turn now to expose Scott CC's evaluation as regards the meaning of 'site' and 'construction industry' as those terms are found used within s 3(1) of the Act.
Scott CC's determinations towards the meaning of 'construction industry' and 'site'
94 In broad terms, Scott CC rejected PIM's contention that the word 'site', deployed within the definition of 'construction industry', covered only activities performed at a 'building site' or at a 'construction site'. [2019] WAIRC 00843 [74].
Instead, Scott CC concluded that the word 'site' indicated merely a differentiation between place(s) at which the activities under subpars 3(1)(a)(i) to (xviii) were performed - as distinguished from work performed elsewhere from where those buildings etc in subpars (i) to (xviii) were geographically located (such a person's work activities carried out at their employer's premises). [2019] WAIRC 00843 [74].

95 To that end, Scott CC had observed: [2019] WAIRC 00843 [61].

The term 'on a site' is used twice within the definition. The term 'of sites' is used once and 'on site' twice. As noted in Commonwealth v Baume (1905) 2 CLR 405, sense is to be made of the whole statute, and 'no clause, sentence, or word shall prove superfluous, void, or insignificant' (p 414 per Griffith CJ). These terms of 'on site', 'of sites' and 'on site' must have work to do. None of the three terms is defined in the Act. The first step must be to ascertain the meaning of the word common to them all of 'site'.
96 After referring to a number of dictionary definitions for the word 'site', Scott CC reasoned: [2019] WAIRC 00843 [68] - [69].

Therefore, the preliminary words in the definition of construction industry mean that of the industry of carrying out, at a position, area, location, place or situation, a range of activities being the construction, erection, installation, reconstruction, re-erection, renovation, alteration, demolition or maintenance of or repairs to a range of buildings, structures, works, etcetera, and for specified purposes or works.
The definition of construction industry is in two parts which need to be read together. The first part, disjunctively, includes the activities of construction, erection, installation, etcetera in the preamble of paragraphs (a) and (b). The second art is made up of types of things to which those activities are performed, such as buildings, swimming pools, roads, etcetera. These, too, are described disjunctively…
97 Scott CC then referred to the observations of Smith C (as she then was) in Brown & Root, to which I have already referred and set out. Scott CC observed that the applicant in that case had unsuccessfully contended that: [2019] WAIRC 00843 [71] referring to Brown & Root [26] - [27].

... 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.
98 Scott CC also endorsed Smith C's rejection of a more limited meaning of 'construction industry' within the Act. That narrower view was rejected as erroneous because: [2019] WAIRC 00843 [71] referring to Brown & Root [27].

... 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.
99 Agreeing with those observations, Scott CC had then observed: [2019] WAIRC 00843 [73].

Everything and every activity is located or done somewhere. This gives the term 'on a site' or 'on site' no work to do that adds any meaning to the legislation. If the meaning of 'on a site' is at a 'location', then it would have no purpose.
100 Accordingly, Scott CC rejected the contention that 'at a location' meant 'anywhere' for the term 'on a site' or 'on site'. Instead, Scott CC considered that such a meaning would leave those words with no work to do. That evaluation is significant to the present appeal.
101 Under PIM's sole ground to this Court, it argues that the Full Bench erred (and inferentially, that Scott CC also erred) in interpreting the word 'site' in the definition of construction industry as meaning 'anywhere' - in terms of 'a place or location at which things occur' - rather than PIM's contended true meaning of 'a construction site'. See Appellant's Outline of Submissions at par 5.

102 However, the premise of this argument assumes that the Full Bench interpreted the word 'site' as a 'place or location at which things occur'. This premise is erroneous.
103 As now seen, Scott CC clearly rejected the 'anywhere' meaning - stating, in effect, that it would deliver no function for the phrases 'on a site' or 'on site'. [2019] WAIRC 00843 [73].

104 Instead, Scott CC continued: [2019] WAIRC 00843 [74].

Rather, I conclude that, read in context, 'on a site' means the site at which the activities in the first part of the definition are performed to the buildings, swimming pools, structures etc or works listed in (i) - (xviii). Work performed away from where those buildings, swimming pools, roads etc and works are located (that is, away from the site or off-site) is not work in the construction industry within the meaning of the Act.
105 The second sentence above identifies a role of functional utility for the words 'on a site' or 'on site'. In effect, that function distinguishes work covered by the definition from off-site work - such as fabrication work for structural components manufactured at off-site premises.
106 As Scott CC observed, the approach of differentiating maintenance work conducted at an employer's premises as work falling outside the reach of the Act is in alignment with Ipp J's approach in Aust-Amec. Therefore, it is incorrect to say that Scott CC's approach afforded the words 'on a site' no effective work to perform. In fact, PIM's true grievance is that the as attributed work function is not the function that it would prefer.
107 Scott CC then continued: [2019] WAIRC 00843 [75] - [78].

75 While par (b) of the definition of 'construction industry' uses the phrase 'of carrying out the works on a site of the construction, erection, etcetera' and paragraph (c) is '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', the meaning I suggest can be consistently applied throughout the definition of construction industry.
76 The meaning I have attributed to the term 'on a site' is also consistent when applied to the exclusion in paragraph (f) of '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'.
77 The scope of the construction industry as defined in s 3 is very broad. It encompasses those activities normally considered to be construction work such as, explicitly, construction, erection, reconstruction, re-erection and demolition. However, it also encompasses installation, renovation, alteration and maintenance of or repairs to items. All of those activities form part of the construction industry where they are done to buildings; swimming pools and spa pools; roads, railways, etcetera; breakwaters; works for the storage of water, etcetera.
78 In paragraph (b), it includes work on the site of the construction etcetera for the fabrication, erection or installation of plant, plant facilities or equipment for the buildings or works. It includes that work normally performed on site but which is not normally carried out on site. It is only by reference to the exclusions in paragraphs (d) - (f), but most particularly paragraph (f), that the industry of the employer is considered, that is, where the work of 'maintenance or repairs of a routine or minor nature by employees of an employer ... who is not substantially engaged in the industry described in this interpretation', (that is, the construction industry) which the definition sets out in detail.
Full Bench reasons
108 Having now exposed Scott CC's reasons regarding the true meaning of the terms 'on a site' and 'on site', it is necessary to turn further to the reasons as were provided by the WAIRC Full Bench.
109 As seen, PIM appealed Scott CC's review decision to the Full Bench of the WAIRC, consisting of Kenner SC, Matthews and Walkington CC. With Kenner SC providing the lead reasons, the Full Bench dismissed PIM's appeal and essentially upheld Scott CC's decision at first instance.
110 I observe that one of the arguments advanced by PIM to the Full Bench contended that the learned Chief Commissioner's statutory construction at first instance failed to afford any work to the words 'site' or 'on a site'. The like challenge was similarly advanced as a subcomponent of PIM's arguments to this Court against the decision of the Full Bench.
111 In the Full Bench reasons, Kenner SC dealt with this argument, referring to the 1905 decision of Commonwealth v Baume and observing as follows: [2020] WAIRC 00758 [59] - [60].

… In this context the appellant contended that in using the words 'site' and 'on a site', this was a deliberate choice made by the legislature. The submission was made that in choosing the dictionary definition of 'site' that she did, at [74] of her reasons, the learned Chief Commissioner left it no work to do. It was said that if it is to simply mean the location or place at which the activities in the first part of the definition are performed on those things or works identified in subpars (i) to (xviii), then this adds nothing to the definition. This is so because on the appellant's construction, this occurs already as the works are done 'to' the buildings, roads, etc in sub-pars (i) to (xviii).
112 Kenner SC proceeded to reject that criticism of the interpretive result around the meaning of the word 'site', observing: [2020] WAIRC 00758 [60].

I do not accept that construed in the manner that the learned Chief Commissioner did, the words 'site' or 'on a site' have no work to do. I consider that interpreting the words used in this manner does provide a linkage and marks out the boundaries of the definition of 'construction industry'. The reference to the 'site' is not in a vacuum, as simply a place where work is performed. If this was so, then there would be no distinction between work done in an employer's own premises and work performed outside of its premises, such as at a client's premises, as in the case of Aust-Amec and in the present case. As illustrated on the facts in Aust-Amec ... as held by Ipp J, there is a material distinction between work performed of the kind contemplated in s 3(1), at for example, a contractor's client's premises and at a contractor's own premises or workshop. As pointed out by the respondent in its submissions, the facts of this case itself illustrate that distinction. Thus, work performed in an employer's workshop or otherwise on its own premises, to support the performance of work performed on the site of the buildings, plant, roads, etc, by way of fabrication of items to be used or installed 'on site', fall outside of the definition. There is no incongruity or absurdity, as a matter of constructional choice, when drawing such a distinction. Such an approach follows the breadth of the definition of 'construction industry', read to its fullest extent.
113 As may now be appreciated, the work function attributed to the word 'site', or 'on a site' is to distinguish from activities identified in the introductory part of subpar (a) (ie, construction, erection, installation, etc) which are not normally performed at the place(s) identified under subpars (a)(i) through (xviii).
114 Consequently, the embedded criticism in PIM's ground concerning an alleged failure by the Full Bench (and inferentially, by Scott CC at first instance) to attribute any work to those words, is misplaced. The correct question is whether the work function as so discerned by Scott CC and as was upheld by the Full Bench, is preferable to the more confined meaning as is contended for by PIM. I turn then to evaluate this issue in more depth.
Evaluation in this court
PIM's appeal position
115 As already seen, the single ground of appeal pursued by PIM to this court contends that the Full Bench erred in law in interpreting the term 'site' appearing in the definition of 'construction industry' in s 3 of the Act as meaning a place or location at which things occur, rather than as a 'construction site.' PIM's challenge being against the conclusion reached by the Full Bench in [2020] WAIRC 00758 [60].

116 As now exposed, this ground misstates the position arrived at by the Full Bench concerning the true meaning of the word 'site' as 'a place or location at which things occur'.
117 Ironically, PIM's appeal position appears to implicitly recognise its own error. The summary PIM provides concerning its ground 1 reads: Appellant's Outline of Submissions at par 5.

… in particular, the Full Bench erred in holding that the word 'site' means merely the location where the activities specified in the definition are carried out on the buildings, structures and works specified in the definition.
118 PIM provides its preferred rival construction in terms: Appellant's Outline of Submissions at par 5.

The Full Bench should have held that the word 'site' means a construction or building site.
119 Given the Act does not provide a definition for the words 'site' or the phrases 'construction site' or 'building site', PIM is essentially relying upon what it contends as being the ordinary meaning for such words or expressions.
120 To that end, PIM's written submissions articulate a five-fold basis for its preferred interpretation as follows: See Appellant's Outline of Submissions at pars 24 - 45.

• Reason 1 - the construction gives no effect to the textual phrase 'on a site';
• Reason 2 - the interpretation ill-fits the terms of par (c) of definition of construction industry;
• Reason 3 - the Act's purpose favours PIM's construction;
• Reason 4 - there are 'textual indicators' supporting PIM's construction; and
• Reason 5 - so-called matters relied upon by the Full Bench do not justify rejecting PIM's construction.
Observations rejecting PIM's rival interpretation
121 On my analysis, none of PIM's suggested reasons outlined above are ultimately persuasive.
122 I have already addressed what I assess as the deficiency in the argument put under PIM's 'reason 1' - the no work argument, in the favoured statutory purpose argument (PIM's reason 3), and as to the suggested textual indicators (PIM's reason 4).
123 In elaboration of that conclusion, I would render the following further observations.
124 First, I am of the view that the construction outcome reached by Smith CC (as she then was) in Brown & Root, Brown & Root [27].
is the better interpretation as to the true meaning of the words 'site' and 'construction site'. Consequently, the interpretive argument advanced by PIM is somewhat stale. Essentially, the issue is to be resolved upon the plain reading of the textual definition of construction industry, as Smith CC stated.
125 Second, the interpretive approaches of Scott CC and later by Kenner SC in the Full Bench, do attribute a significant work function to the expression 'on a site' or the word 'site' as used within the definition of 'construction industry'. There can be no serious argument to the contrary having now exposed their reasons. The true question as raised by PIM is whether that interpretation is correct or not.
126 Third, PIM proceeds on the basis of an internal starting assumption as to a (so-called) ordinary meaning of the term 'site'. On PIM's interpretation, 'site' means a 'construction site' or a 'building site' - rather than a reference to the places or locations where matters or activities the subject of subpars (i) through to (xviii) are actually carried out. PIM's starting approach is something of a self-fulfilling prophecy. It is grounded on the shaky foundation that the expansive definitional text as deployed by the legislature needs to be, in effect, read down to avoid a repugnant result (to PIM) and that is seemingly perceived as adverse to its economic interests. That is not the correct approach to a statutory construction exercise.
127 Having exposed its argument that in order to have some work function, the phrase 'on a site' must mean more than a mere location, the next step in PIM's reasoning is that there arises a scenario of true constructional choice - as between its position and the views of Scott CC (affirmed by the Full Bench) - that 'site' means the place(s) at which the activities (as mentioned) are performed to buildings, swimming pools, etc, as listed in subpars (i) through to (xviii). See Scott CC's observation in [2019] WAIRC 00843 [73].
PIM's counter view is that 'site' instead means '[a] building or construction site as ordinarily understood'. See Appellant's Outline of Submissions at par 21(b).
PIM does not otherwise elaborate on its suggested ordinary meanings for building or construction site.
128 PIM then advances to contend that neither construction is a wholly ungrammatical or unnatural. Appellant's Outline of Submissions at par 22, referring to Kenner SC's reasons in [2020] WAIRC 00768 [42].
It argues that each interpretation is reasonably open, stating: See Appellant's Outline of Submissions at par 22, citing the Shorter Oxford English Dictionary on Historical Principles (1973, 3rd ed).

While the Chief Commissioner's construction accords with one dictionary meaning of 'site', namely, 'a position, area, location, place or situation' ... PIM's [interpretation] accords with others, including 'a plot, or number of plots, of land intended or suitable for building'.
129 PIM then invokes the earlier seen observations of Gageler J in SZTAL regarding constructional choices and the elucidation by evaluation of the relative coherence of potential meanings with the identified statutory objects or policies. SZTAL [37] - [39].

130 By my assessment, PIM's reasoning sees it effectively selfassume that its suggested rival meaning for the word 'site' as a building site or construction site (ordinarily understood) - is an equally respectable meaning to adopt. Respectfully, I must disagree. The approach of PIM looks to be again, one of self-fulfilment on the part of PIM in terms of the desired end outcome. No persuasive argument is presented towards effectively reading down the meaning of the phrase 'on a site' as PIM contends. The textual meaning as arrived at by Scott CC and then by the Full Bench was fully open in the circumstances and supported by earlier authority. PIM's alternative meaning is not so supported.
131 Consequently, I cannot accept PIM's submission as to an existence of a situation of true constructional choice as between equally respectable potential meanings. To the contrary, my assessment is that PIM's suggested meaning is in the nature of a construct - erected to suit its economic circumstances and is ill-fitting, measured against the text of the statutory definition used by the Act.
132 I turn to analyse and make some final observations in respect of each of PIM's five stated reasons for adopting its rival construction of the word 'site'.
Reason 1 - no work to do
133 As already discussed, the interpretive approach of Scott CC and the Full Bench does in fact afford a level of work function to the phrase 'on a site' - namely to exclude work performed away from where those buildings, swimming pools, structure etc are located. PIM, by its written submissions, argues to the contrary, providing: Appellant's Outline of Submissions at par 27.

… but, this is already achieved by the textual links that the definition draws between the specified activities and the specified buildings, structures and works through the use of the prepositions 'of' and 'to'. So, for example, the construction or demolition 'of', or repairs 'to', a building or swimming pool cannot include work performed away from where those things are located.
134 On my assessment it is ambitious for PIM to contend that the prepositions 'of' and 'to' as found in subpar (a) deliver the same constructional outcome as if the words 'on a site' were wholly excised from subpars (a) and (b). That submission ignores off-site fabrication work, particularly regarding work envisaged as regards plant and plant facilities or equipment under subpar (b) of the definition.
135 As the respondent Board points out in its written submissions, such work may well be performed off-site. Respondent's Outline of Submissions at par 35.
The words 'on a site' prevent such work when legitimately performed off-site from being captured under subpar (b) of the definition. Likewise, the import of subpar (c) in the definition assumes that at least some of the work listed in the preceding subpar (a) and subpar (b) could be carried out offsite. Respondent's Outline of Submissions at par 35.

136 Consequently, the work function as was attributed by Scott CC and Kenner SC to the word 'site', on my assessment, is active, tangible and ultimately is the correct meaning.
Reason 2 - the construction ill-fits par (c) of the definition
137 This limb of PIM's argument was in the following terms: Appellant's Outline of Submissions at par 30.

… Paragraph (c), thus, presupposes that at least some of the work in paragraphs (a) and (b) (being the specified activities performed on the specified buildings, structures and works) can, but need not, be done 'on site'. It is hard to see how this could be so if 'site' means where the activities are performed to the specified buildings, structures and works. Paragraph (c) is given clear operation if, as PIM submits, 'site' means construction site.
138 Again, with respect, I cannot accept this limb of PIM's argument. As seen, the role of subpar (c) in the definition is expansionary, within the overall industry definition - extending the ambit of what is achieved by subpars (a) and (b). The augmentation provided by par (c) draws in work 'normally' carried out on site, but which on occasions may not be so carried out.
139 I cannot accept that the contended rival meaning of PIM affords subpar (c) a clearer or more consistent function than the wider construction.
Reason 3 - the purpose of the Act
140 Earlier, I set out extracts from the Second Reading Speech delivered in respect of the Construction Industry Long Service Leave Bill 1958 (WA).
141 Relying on that material, PIM's written submissions say: Appellant's Outline of Submissions at par 37.

Nothing in the above passages, or the rest of the second reading speech suggest that the responsible Minister was speaking of 'construction industry' other than in its ordinary sense.
142 According to PIM, these passages show that the Act's purpose is to address difficulties that employees in the construction industry face in qualifying for long service leave by reason of the itinerant nature of the workers in that industry. Appellant's Outline of Submissions at par 37 - referring to Precision.

143 From that platform, PIM then submits: Appellant's Outline of Submissions at par 38.

PIM's construction is more apt to promote this purpose than the Chief Commissioner's. PIM's construction recognises that the Act is intended to benefit employees in the construction industry, as ordinarily understood. By contrast, the Chief Commissioner's construction attributes to the word 'site' a meaning so broad that the benefit of the Act is, in effect, extended to employees not on [sic] the industry in which they are engaged, but instead, the activities that they are engaged to perform. To so conclude is neither to displace the language of the Act nor to limit the Act's operation to the mischief to which it is directed. Instead, it is to recognise that the word 'site' (when used in the definition of 'construction industry') invites a constructional choice and that the Act's purpose is 'integral' to making that choice [referring to SZTAL per Gageler J at [39].
144 In my view, PIM's contention as regards the Act's suggested purpose is also not persuasive. This is for two key reasons. First, in my view, PIM's arguments attribute insufficient weight to the exhaustively comprehensive text under the chosen statutory definition for 'construction industry'. The purpose of a statute is not something that resides outside the statute itself - it resides within the text and structure of the Act, albeit purpose is capable of being identified by reference to common law and statutory rules of construction. To that end, see the observations by the High Court in Lacey v Attorney General (Qld). Lacey v Attorney General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [44] (per French CJ, Gummow, Hayne, Crennan, Kiefell & Bell JJ).

145 Here, there was no express statement as to the purpose of the Act within the terms of the legislation itself. The long title is also of no real assistance in this task, given it picks up itself the pregnant terminology of 'construction industry'. At the end, it will be the text of this comprehensive statutory definition of construction industry, assessed in the surrounding context of the provisions of the Act, that must be determinative.
146 Second, as now already canvassed, the legislature had identified a problem to be addressed over itinerant workers not serving out a period of employment with the one employer that was long enough to qualify for a long service leave benefit under the earlier regime of the Long Service Leave Act 1958 (WA). But this is only one aspect of the overall picture and ultimately, it is the text of the legislation which will deliver the chosen solution for that problem.
147 Whilst there may be many potentially responsive solutions, the remedial response approach by the legislature in this case was to define the term 'construction industry' in an exhaustive fashion - so as to extend beyond a solution merely limited to itinerant employees missing out on long leave benefits. This explicitly chosen terminology cannot be read down simply to being held as only applicable to itinerant employees working on building or construction sites.
Reason 4 - so-called textual indicators
148 The chief textual indicator relied upon to support PIM's construction that 'site' means construction or building site, is what it says is 'the ordinary and natural meaning of the defined term. Appellant's Outline of Submissions at par 40.

149 Against this approach, Kenner SC reasoned that the ordinary and natural meaning of 'construction industry' cannot be used to aid the interpretation of the statutory definition. [2020] WAIRC 00758 [61].
To that end, the Full Bench discussed Owners of Ship, Shin Kobe Maru v Empire Shipping Co Inc, Owners of Ship, Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 (Shin Kobe Maru).
where the High Court stated that '[i]t would be quite circular to construe the words of a definition by reference to the term defined'. Shin Kobe Maru [10].
Kenner SC also considered that this approach falls foul of the 'rule' most recently expressed in Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation, Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation [2011] FCAFC 154; (2011) 199 FCR 226.
that when interpreting a definition in a statute, it is not generally permissible to refer to the ordinary meaning of the term as an aid. [2020] WAIRC 00758 [61] referring to Esso.

150 Nevertheless, PIM submits that more recent intermediate appellate decisions have questioned and departed from the 'rule'. Without expressly over-ruling Shin Kobe Maru on this point, PIM contends that the High Court in Independent Commission Against Corruption v Cunneen Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1. (Cunneen).
had relied on the ordinary meaning of 'corrupt conduct' to interpret the statutory definition for that term in the local statute. Appellant's Outline of Submissions at par 40.

151 PIM also refers to provisions in the Act concerning persons who may be appointed to the Board established under the Act. Specifically, by s 6(1)(d) and (e) of the Act, appointees must be persons who, in the Minister's opinion, represent the interests of employers in the construction industry and further, persons who represent the interests of employees in the construction industry. Appellant's Outline of Submissions at par 41.
It is suggested by PIM that this terminology further supports its advocated interpretation that the Act is focused only on the construction or building industry (as ordinarily understood). Appellant's Outline of Submissions at par 44.

152 By my assessment, any suggested textual support within s 6(1)(d) and (e) of the Act is equivocal. To some extent, the submission only exposes again, a predisposition of PIM towards a self-selected narrower view of the socalled ordinary meaning of the phrase 'construction industry'. Consequently, this aspect of PIM's submission is also erected upon a tendentious foundation.
153 Insofar as PIM's primary submission (concerning the natural and ordinary meaning of 'site') suggests that observations by the High Court made in the Shin Kobe Maru decision ought no longer be followed or applied, the submission must be rejected. Further, I cannot accept that the reasons in Cunneen support any watering down of the 'rule'.
154 As the respondent's submissions correctly respond, the plurality's reasons in Cunneen refer twice to Shin Kobe Maru See Cunneen [33], [60].
 - observing there that the New South Wales Court of Appeal had not made the error of favouring the so-called ordinary meaning of 'corrupt conduct' as had been suggested by the appellant in the reasons of the plurality. Cunneen [60].

155 I would also note the High Court's observations in Minister for Immigration and Border Protection v WZAPN Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 [48].
 - where French CJ, Kiefel, Bell and Keane JJ expressly refer to the 'authority' of Shin Kobe Maru and to a predecessor decision of Wacel Developments Pty Ltd v Realty Developments Pty Ltd Wacel Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; (1978) 140 CLR 503 (Wacel Developments).
. These authorities are referred to for the proposition that it is impermissible to construe the words of a definition by reference to the term defined. Wacel Developments referring to Shin Kobe Maru, 419.

156 Here it would be an error to approach the exercise in statutory construction with an initial assumption as to the suggested natural and ordinary meaning of the term 'construction industry'. Instead, it must be to text of the definition to which first recourse is afforded. As the legislature in these circumstances has provided a demonstrably comprehensive definition of 'construction industry', it would be illogical to undertake an exercise in construction on a basis of discounting or diminishing the force of that text by the intervention of a suggested rival ordinary and natural meaning of the defined term itself.
157 Consequently, PIM's so-called main textual indicator arising on its suggested natural and ordinary meaning of the term 'construction industry', is ultimately not persuasive.
Reason 5 - matters relied upon which do not to justify rejecting PIM's construction
158 Nothing of interpretive significance emerges out of PIM's reasons beyond the considerations already now well canvassed. Under this aspect of its argument, PIM contends that a number of the decisions referred to by the Full Bench of the WAIRC See [2020] WAIRC 00758 [62] - [64].
do not to directly address the present issue of construction, namely the meaning of 'site'. Hence, PIM says this court may determine the whole constructional issue afresh.
159 Whilst that is strictly correct, I would reiterate that on my assessment, Smith CC's (as she then was) decision in Brown & Root expressly addressed the very same issue concerning the true meaning of the term 'site' used within s 3(1)(a) of the Act. Brown & Root [2001] WAIRC 02000 [27].
Numerous subsequent decisions by the WAIRC have either expressly or implicitly adopted the same broad view of the scope as to the Act. See cases referred to at footnote 25.

160 The Board, in responding to reason 5 and to PIM's entreatment to consider the matter afresh, correctly points out that Scott CC's interpretation is consistent with a long line of decisions in the WAIRC and by Boards of reference over many years - under which the Act has never been assessed as restricted in its scope to employees who work on building or construction sites. Respondent's Outline of Submissions at par 77(e).

161 Further, the Board points out that given the way the Act has long been so interpreted and applied, it is reasonable to assume that large numbers of employees who have accrued, and who are continuing to accrue, long service leave payment entitlements under the Act would stand to see their entitlements put in jeopardy - were the appellant's narrower construction to be accepted. Respondent's Outline of Submissions at par 77(e).
In that context, this court ought be slow to depart from what is a longstanding interpretation of the Act applied by the WAIRC and upon which parties, and indeed the Board, have relied upon - unless that interpretation is assessed as plainly wrong - invoking observations by the High Court in Babaniaris v Lutony Fashions Pty Ltd. Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1, 11 - 14 (Mason J), 22 - 23 (Wilson & Dawson JJ), 28 - 32 (Brennan & Deane JJ) (Babaniaris).

162 On my assessment, there is force in the Board's submission as to the historic ordering of its financial affairs and in the engendered expectations of persons who are registered employees towards their obtaining of long service payment benefits. Were the position one of a real choice to be made as between equally respectable rival interpretations, the Babaniaris concern would certainly be a relevant consideration for me. In the end, however, that position is not reached.
Conclusion
163 In the circumstances, the force of a rival statutory construction position as advanced by PIM, is not equal. By my assessment, the true meaning of the phrase 'on a site' and for the word 'site' assessed in context, is as Scott CC and Kenner SC have concluded, a reference to the activities in the preface of subpar (a), as they are carried on at the places as identified under (i) to (xviii) in the second limb of subpar (a) of the definition of 'construction industry'.
164 Consequently, the word 'site' is not to be read as limited to merely displaying a reference to a construction site, or to a building site.
165 In these circumstances, PIM's appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.

DM
Associate to the Honourable Justice Murphy

3 DECEMBER 2021