T8918, T8919, T8920 - 17 May
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Construction, Forestry, Mining and Energy Union, Tasmanian Branch and Colony 47 Inc.
Industrial dispute - alleged breach Building and Construction Industry Award - Clause 8 Wage Rates and allowances- Clause 19 Hours -nature of work performed - whether employees covered by award - whether employer bound by award - arbitrated - employees covered by Building and Construction Industry Award - employer bound by award REASONS FOR DECISION On 31 March 2000, the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Colony 47 Inc. (the employer) arising out of an alleged breach of the Building and Construction Industry Award in respect of Clause 8 - Wage Rates and Clause 19 Hours affecting three employees, Mr Dean Eaves, Mr Errol Ford and Mr Brendon Goss. On 4 April 2000, the President convened a hearing at `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania, before myself, to commence on Wednesday, 12 April 2000 at 9.30 am. Mr J Long appeared for the applicant union and Mr D Bessell, a legal practitioner, sought and was granted leave to appear for the respondent employer. The parties agreed that the three matters should be heard together on the basis that the questions to be decided were the same for each of the three applications. Mr Bessell raised a threshold matter in that he said that the Commission ought not to consider any of these matters because they had been previously determined in respect of an earlier application to the Commission, T8550 of 1999, which had been before Commissioner Watling. Mr Bessell said that the matters had been effectively determined already and that the rule of res judicata should be applied. I indicated to the parties that if the present applications differed from T8550, then there would be no need to hear argument in relation to the issue of res judicata. Mr Long contended that the issues were completely separate. The earlier application, he said, related to a group of trainees employed by Colony 47 on a project, plus a claim for the people who were the subject of the applications currently being heard. He said that the state secretary of the union had sought a discontinuance of that hearing so that the two matters could be separated. The application dealing with the trainees then became a separate application, T8653 of 1999. The applications in relation to the three employees who were not trainees were the applications currently before the Commission. I decided that the applications were different in that they dealt with different matters. T8550 was a dispute confined to wage rates. The current applications were in relation to wage rates, allowances, and hours of work. T8550 dealt with trainees and the current applications did not. On that basis I determined that the hearing should proceed. I leave aside any consideration of whether the principle of res judicata applies in this jurisdiction. The Questions to be Decided The questions to be decided were whether or not, during the relevant periods, the work performed by the three employees was work covered by the Building and Construction Industry Award, an award of this Commission, and whether or not the employer, Colony 47, was bound by that award. The Facts not in Dispute Colony 47 is an incorporated Association, its objects characterise it as a charitable organisation, the purpose of which is to provide support to disadvantaged members of the community. The organisation has been involved in a number of programs, which have included employment and training programs. The programs are almost totally funded by various government organisations. In 1996 Colony 47 was approached by the Department of Community and Health Services (as it was then) to carry out a community development project, the aim of which was to train and employ local residents to improve the amenities of their area. The Making a Difference Project, as it was called, commenced in January 1997 in the Rokeby/Clarendon Vale area, particularly to redevelop a part of the Rokeby area which had what was called the Radburn style of housing where all the front yards of the houses faced onto common pathways. This had resulted in security and privacy issues which had been a matter of community concern for some time. A major element of the project was to redesign and construct fencing around the houses to create greater levels of privacy and security. Colony 47 directly employed a number of people to work on the Making a Difference Project. During the relevant period, ie the second stage of the project, approximately twelve people were employed on the project, plus a number of other Colony 47 staff were involved in its management. Three of the people directly employed to work on the Making a Difference project are the subject of the applications before the Commission:
The periods of time for which alleged unpaid wages are being claimed relate to periods of time during which the employees were not trainees. The Matters in Dispute The applicant contended that the workers were performing the work of fencers:
and that the work performed falls under the Building and Construction Industry Award on the basis that fencing work is part of the building industry. The respondent contended that:
The Evidence Regarding the Nature of the Work Performed The Applicant's Evidence Mr Long commenced by introducing into evidence a letter to Mr Errol Ford from Colony 47, signed by Mr Mark Redmond, Training and Placement Co-ordinator, dated 3 February 1998, confirming the continuation of Mr Ford's employment, which said inter alia:
Your job description is as follows:
Mr Long said that Colony 47 obtained government fencing contracts in housing department areas and employed trainees on twelve month traineeships to complete the fencing contracts. He said that the work described in the position description was the normal work performed on a building site. Mr Long then outlined a history of correspondence and negotiations in relation to award coverage and wages allegedly owed to the employees, which I shall return to later when dealing with the question of award coverage. As part of that correspondence, however, Colony 47 claimed, in a letter dated 18 June 1999 to Mr Bill White of the union, that:
Mr Long said that the fencing part of the project was not incidental, that it was the principal work that was carried out.4 In a further letter dated 30 June and signed by Sue Ham, Chief Executive Officer, the employer stated:
Whilst Mr Long agreed that the objectives of the project for the trainees had wide implications, he said that the work the three employees were performing was "purely and simply"6 labouring work building fences "nothing more and nothing less."7 The Respondent's Evidence Mr Bessell, for the employer, suggested that the Commission view a short video entitled A Leap Forward for Launde Avenue, which he said:
I did watch the video, which I found very useful in that it showed the extent and the type of the fencing work done and some of the tools used, as well as giving an overview of the social benefits of the project. Susan Jane Ham, a witness for the respondent and Chief Executive Officer of Colony 47, gave detailed evidence describing the range and scope of projects undertaken by Colony 47, most of which is not relevant to this particular question, but as part of that evidence she described the Making a Difference project, (although she did say that the detail of the actual work performed by the three employees the subject of these disputes would be better described by a later witness, Mr Mark Redmond). Ms Ham said:
Further into Ms Ham's evidence she described the project in terms of the description contained in the funding and service agreement dated 23 March 1998:
In response to a question from Mr Bessell as to whether Colony 47 had been involved in activities of a like nature, Ms Ham replied:
During cross-examination Mr Long asked Ms Ham whether she believed that the Miscellaneous Workers Award was an appropriate award for the work that the employees were doing. She responded by saying:
Mr Mark Redmond, witness for the employer, testified in detail as to the work performed by the three employees and the nature of the Making a Difference project. During his testimony Mr Redmond made a number of references to the fencing work carried out.
In response to a question from Mr Bessell concerning striking of a rate of pay for the employment of the employees, Mr Redmond said:
A little later Mr Redmond said:
Upon being asked what that advice was, Mr Redmond replied:
Mr Redmond claimed that the employees were not on task 100% of the time because there was still an element of training and planning involved. The following exchange took place between the Commission and Mr Redmond:
Commissioner: "But the work they performed was fencing?
Both witnesses for the respondent said on a number of occasions that they had been told by various authorities that the work performed by the employees concerned was `award-free'. That aspect will be addressed later, but for the purposes of establishing the nature of the work performed the following evidence is of interest:
Commissioner: What did you say to them?
During re-examination Mr Bessell put some questions to Mr Redmond in relation to the work performed by Mr Ford. Mr Ford had carried out a number of miscellaneous duties, partly as a result of his workplace accident. Mr Bessell asked what proportion of Mr Ford's work would have been the miscellaneous duties as opposed to fencing work. Mr Redmond responded in the following terms:
Findings It is clear from the above evidence that the work performed by the three employees was mainly fencing, with some additional construction work, such as the construction of pergolas, gates, decks, and associated tasks. Mr Bessell claimed that there was very little evidence in respect of what work the employees were performing excepting for evidence to show that
And that:
I reject this on the basis that the evidence clearly shows that the employees were performing work that was primarily construction work, the major component of which was fencing. There is abundant evidence, mainly through the testimony of the employer's witnesses, that the employees were involved in a fencing project, albeit one with a number of laudable community development objectives. The only evidence provided by the union in relation to this question was the letter of 3 February sent to Mr Ford containing the job description, however that is very persuasive evidence, in that it refers three times to the `fencing project' and clearly describes the tasks to be performed as including "fence construction, deck construction, gate erection, rubbish removal and assorted tasks associated with this [fencing] project". The Commission would have been better assisted had the applicant brought witnesses to testify as to the work performed. However, the evidence of the employer's witnesses clearly shows that the work performed was that of building fences with some additional tasks such as those described above. Both Ms Ham and Mr Redmond emphasised the importance of the fencing in terms of overcoming the problems created by the Radburn-style of housing particularly in providing members of the community with a greater sense of safety and security. Further, the evidence of Mr Redmond in describing his attempts to establish the `industry' rate of pay shows that he was looking for the appropriate rate for the fencing industry. He spoke to fencing contractors and fencing suppliers. It was clearly in the mind of the employer that the rate of pay for the fencing industry was the appropriate rate, notwithstanding that the employer concluded that fencing was an award-free industry. The description of the work performed given by Mr Redmond, according to his evidence, to an officer of the Workplace Standards Authority, clearly indicates what the work performed was: "... erecting fences, closing off laneways ..." etc.22 Mr Redmond's evidence was that the work performed was "primarily fencing"23 and that even in the case of Mr Ford (who performed miscellaneous tasks for what Mr Redmond called "a substantial amount"24 of time and who was sometimes off site as a result of visits associated with his workers' compensation claim), fencing would still have amounted to 60 - 70 per cent of his work time.25 The evidence showed that whilst the project was a fencing project, it had additional objectives such as enhancement of the quality of life of the residents in the area and the promotion of skills development amongst people who had been unemployed for a long time. That does not mean, however, that the actual work performed by the three employees was not fencing work. I have already found that, on the evidence, it was. The additional elements in their working day, such as working out a daily plan, filling out work books, and communicating with residents as to their fencing preferences were, I find, incidental to the work they were performing which was mainly the construction of fences, with some additional construction work, eg gates, decks and pergolas. The objectives of the organisation in taking on the fencing project do not in any way detract from or alter the work performed by the employees, which, as I have said, was primarily the construction of fences, with some additional construction tasks. Evidence was brought to the effect that the three employees were selected by the employer for reasons other than their ability to perform the tasks; that those reasons were to do with, for example, upgrading the employees' social and work skills to make them more acceptable to other employers. It was put that this was done as a continuation of Colony 47's social responsibility rather than as an employer employing builders' labourers.26 It may have been the case that the employer considered a range of things when employing the three employees, but in terms of the question to be decided, I consider the selection criteria irrelevant to the essential question of what the work was that was being performed. Does the Building and Construction Industry Award Apply to the Work Performed? The Applicant's Evidence The claim of the applicant is that the type of work performed by the three employees is work covered by the state Building and Construction Industry Award. From that central contention all matters in dispute flow, ie the payment of wages and allowances and the hours of work. The union had made this claim to the employer in May 1999. Mr Long introduced into evidence a series of letters which showed the somewhat convoluted history in relation to awards which have (and have not) been applied to employees of Colony 47 who have been in involved in the Making a Difference project. The first letter, dated 3 February 1998, was from Mr Mark Redmond of Colony 47 to Mr Errol Ford, and offered continuation of employment as a "Labourer under the Miscellaneous Workers Award."27 The second was dated 11 May 1999 and was from Mr Bill White an organiser with the Construction, Forestry, Mining and Energy Union (CFMEU) to Mr Redmond - advising that either the Building Trades or Building and Construction (state) awards or the National Building and Construction Industry Award 1990 applied to the employees in question. The third letter was dated 13 May 1999 and was from Mr Redmond to Mr White, in which he said:
The fourth relevant letter was dated 18 June 1999 and was to Mr White of the CFMEU from Sue Ham, Chief Executive Officer of Colony 47, in which she said that upon receipt of further advice the employer no longer conceded that the National Building and Construction Industry Award had application:
(a) Colony 47 is not a respondent to the NBCIA; (b) Colony 47 is not a respondent to the BTA;
The next was a letter dated 30 June 1999, again from Ms Ham to Mr White, in which she said:
Mr Long submitted that the Miscellaneous Workers Award had been wrongly applied, that in fact the workers were covered by the state Building and Construction Industry Award. He said that Colony 47 was not a respondent to the federal award, even though for a period of six weeks they had decided to apply that award. He said that as they were not respondent to the federal award they were "caught in the net"31 of the state award. He said that the federal and state awards were identical, excepting that the state award had a higher loading for casual employees.32 Mr Long also submitted that the fact that the employer had, for a time, paid the employees according to the federal National Building and Construction Industry Award indicated they had accepted that the employees were bound by award conditions, and were not award-free. Two further documents were introduced by the applicant, purporting to show that fencing was part of the building industry, and, therefore, covered by the Building and Construction Industry Award. One was an excerpt from the Tasmanian Land Use Planning and Approvals Act 1993:33
Mr Long said that this made it quite clear that "building fences is building".35 Part of that Exhibit was another excerpt, this one from the Tasmanian Homes Act 1935, which reads:
This, Mr Long said, showed that under any definition, building or housing, the work (ie fencing) performed by the employees, falls within the Building and Construction Industry Award.37 Mr Long addressed the definition within the award which refers to the scope clause:
Mr Long's submission, in essence, was that the work performed by the employees was fencing, and fencing was building, and building is covered by the Building and Construction Industry Award. The Evidence for the Respondent Witnesses for the respondent claimed that they believed the work the employees performed to be `award-free' and that they had been so informed by various government agencies. The agencies referred to included the Workplace Standards Authority, the Tasmanian State Training Authority and the Commonwealth Department of Education, Training and Youth Affairs. Ms Sue Ham, Chief Executive Officer, in response to a question regarding advice received from those government agencies, said:
In answer to a question as to the appropriateness of the Miscellaneous Workers Award, Ms Ham responded:
Ms Ham said that the service agreement entered into with the government in relation to the project did not specify any awards within it.41 Mr Mark Redmond, Program Manager with Colony 47 said that he had spoken with the Workplace Standards Authority and that there was no `governing award' for the type of work that the employees on the Making a Difference program would be performing.42 During cross-examination Mr Redmond disagreed with the contention put by the union that people who normally build fences are carpenters and therefore, by implication, part of the building industry.43 In response to a direct question in relation to what the work performed was, Mr Redmond said:
and, in response to a question relating to what he had told the Workplace Standards Authority, he said:
Mr Bessell submitted that the Commission must apply the evidence to the award in order to determine whether or not at the relevant times the employees were performing any relevant work under the award. He said that the applicant bore the onus of establishing that at the relevant time they were performing work which fell within the ambit of the award and that there was really no evidence beyond the fact that, at times, they were performing fencing work. He argued that the Land Use Planning Approvals Act46 was of no assistance to the applicant's case because the fact that there was a definition of building in another Act is of no relevance because there is no provision within that Act that gives that definition any general application. The fact that Colony 47 may have, for a time, paid the employees according to another award (the National Building and Construction Industry Award) was also not relevant, he said, in relation to the issues to be considered, and, in any event, it had not been suggested that there had been any waiver of the employer's rights by virtue of that payment. Mr Bessell submitted that the award is:
and that:
Mr Bessell said that the applications ought not to succeed because the evidence was such that the Commission could not be satisfied that the employees had been involved in work which would fall within the definitions of `builders labourers' under the award. Fencing work is not specifically referred to within the award, he said, although he conceded that there is a provision in reference to a "job in wood", but the award was referring to buildings not to a free-standing fence structure.49 He said that in the absence of any evidence as to appropriate trade practices it fell to the Commission to determine the matter according to the words contained within the award. The scope of the award is expanded by the definition of building industry work under the definitions section and, Mr Bessell conceded, the definition does include the assembling or fixing of woodwork, but, he submitted, that ought to be read in the context of woodwork associated with buildings and not in relation to free standing fences. Findings I agree with the proposition put by Mr Bessell for the respondent, that the Commission should apply the evidence to the award in order to determine whether or not the employees were performing work covered by the award. The facts established through the evidence that relate to the context of the words in the award are that:
Although it is true that the applicant brought no `industry' evidence, there was sufficient other evidence, principally through the job description50 and the respondent's witness evidence, to establish the above facts. Fact No 1 above. I have already found, based on the evidence, that the work performed by the employees was `primarily fencing', plus some additional construction work. Fact No. 2. (The employees used tools associated with such work). The evidence of Mr Redmond of his conversation with the Workplace Standards Authority in which he said:
clearly shows that the employees used tools associated with the fencing and construction work they were performing. Further, the job description provided by the employer to Mr Errol Ford52 includes the following:
This letter was addressed only to Mr Ford and similar letters were not provided to the Commission in relation to the two other employees, Mr Eaves and Mr Goss. However, the respondent did not at any stage challenge the comments made at the outset by Mr Long for the union:
Nor at any stage was any significant differentiation made between any of the employees in relation to the work performed, apart from absences by Mr Ford due to a work-related injury. Therefore, it is my intention to take the evidence in relation to the work performed as applying equally to all three employees. Fact No. 3. (The fences were constructed of wood). Whilst the fact that the fences were constructed of wood was not directly referred to in evidence, it was plain from the video and the comments made by Mr Bessell during his final submissions that this was the case. Fact No. 4. (The employees had to clear the site of debris). This is supported by the evidence of Exhibit L1:
Fact No. 5. (The employees were employed as labourers). This is again supported by the evidence of Exhibit L1:
Using the tests urged upon me by Mr Bessell, ie, applying the facts established through the evidence to the words in the award, I find that the work performed by the employees at the relevant times is work covered by the Building and Construction Industry Award. Clause 2 - Scope - establishes that the award covers the `Building Industry'. In my view this term is general enough to include the construction of fences. The evidence showed that the employees were primarily building fences. Whilst the clause has some specific inclusions, it does not limit the scope of the award to those aspects of the building industry specifically outlined in the clause. Although Mr Bessell may be correct in his claim that a fence is not a building, there can be little doubt that fences are `structures' and that `structures' are referred to in the the definitions contained within the award. Extracts from Clause 7 - Definitions - clearly establish that the work performed by the three employees is included within the scope of the award:
The five facts listed earlier in this section of the decision, (namely: that the employees were mainly involved in building fences and that they performed other construction tasks; that they used tools associated with such work; that the fences were built out of wood; that they were required to clear the site of debris; and that they were employed as labourers), when applied to the words within the award leave no doubt in my mind that the Building and Construction Award applies to the work that was performed by the three employees. Other Evidence Considered Definitions contained within other Acts The evidence presented in Exhibit L8, which showed that in two Tasmanian Acts concerned with the building of houses and the use of land, fencing is interpreted as being included in the general terms of `building' and `dwelling house', supports the view that the term building includes fences. Whilst there may be some validity to the view expressed by Mr Bessell that the interpretations contained within those Acts could have no general application, those definitions and, indeed, those Acts, seem to me to have relevance to the building industry. The definitions contained within those Acts support the conclusion that the type of work performed, ie building fences, (plus the construction of pergolas and sundecks), would, according to ordinary English usage, and within the building industry, be generally understood to be covered by the term `building' and therefore would be understood to be part of the `building industry'. Advice given by government and other agencies. The respondent's witnesses, Ms Ham and Mr Redmond both testified that they believed that the work the employees performed was award-free. They had reached this conclusion on the basis of advice they had sought and received from various agencies, including the Tasmanian Training Authority and the Workplace Standards Authority.56. It was on the basis of this advice that the employer rejected the union's claim that the work was covered by either a state or federal building award. Regrettably, the advice the employer received was wrong. For the reasons given in this decision, the work performed by the employees falls within the scope of the Building and Construction Industry Award. It is unfortunate that the employer, who apparently made genuine attempts to establish what rates of pay might apply, was wrongly advised. However, this wrong advice does not change the facts in relation to the work performed by the employees. The final question to be addressed is: Was Colony 47 in the Building Industry? The Evidence The Rules of Colony 47 Inc were provided as evidence57 and showed the objects of the Association to be, in essence, the provision of programs to recognise the potential and to develop the skills of disadvantaged members of the community. Ms Ham, of Colony 47, gave a detailed description of the work of the organisation, and described a number of their projects. These included housing, employment, pre-employment, training, mental health, recreation, supported accommodation, and youth programs.58 Ms Ham said that the expressed aims of the Making a Difference project were:
Mr Redmond gave evidence of the selection criteria for employment on the project during the relevant period. He said that the employees needed to be local residents, and that whether or not they were long-term unemployed was another consideration:
At the time of the Making a Difference Project there were fourteen other projects being run by Colony 47 and the total number of its employees was between 70 and 75.61 It was clear from the evidence that Colony 47 applied a number of different awards to its employees at various times.62 Ms Ham agreed that an employer can have employees covered by a number of different awards.63 The evidence regarding the nature of the work performed by the three employees the subject of this dispute has been dealt with earlier in this decision and I have determined that the work performed is work covered by the Building and Construction Industry Award. Mr Bessell for the Respondent The respondent's primary submission was that Colony 47 is not in the building industry. Mr Bessell said that Colony 47 cannot be said to be an employer for the purposes of the Building and Construction Industry Award because the organisation is not engaged in the industry specified in Clause 2 - Scope - of the award.64 Colony 47 is, he said, a charitable community organisation involved in a number of community-based works and that the project in which the three employees were involved was only one of a number of projects that the employer was involved in, and that therefore the association with the building industry was only an incidental one.65 Mr Bessell submitted that the employment of the three employees the subject of these proceedings was:
As to case authority, Mr Bessell referred to Federated Ironworkers v Broken Hill 67, in which Hungerford J quoted from a High Court decision in R v Central Reference Board; Ex parte Theiss. That case, Mr Bessell said, concerned a demarcation dispute the circumstances of which were that Theiss were repairing trucks in the mining industry and the question was whether or not they were engaged in the mining industry. The decision contained a passage which, he said, was relevant to the instant case:
One of the tests to be applied, Mr Bessell said, as to whether or not Colony 47 was in the building industry was to identify the substantial character of the industrial enterprise in which the employer and employee are concerned.68 Further into the Federated Ironworkers decision another case is referred to:
Hungerford J goes on to say:
Mr Bessell submitted that the principles to be extracted from the Federated Ironworkers case were those two tests, which were confirmed in the New South Wales Industrial Relations Commission case of BHP Refractories,69 which case established that the tests had been applied and followed in other cases. In applying those tests to the instant case the Commission had heard evidence, Mr Bessell said, as to the nature of Colony 47's business, its aims and objectives, which, he said, were that Colony 47 is a charitable community service organisation which provides a number of services predominantly to the disadvantaged in the community. He said:
The relationship of Colony 47 with the building industry was a "very tenuous incidental contact" he said, because the Making a Difference project "just happened" to involve some fencing work.71 As to the second test, Mr Bessell said, that is, a determination of the substantial character of the industrial enterprise in which the employer and the employees were engaged, he submitted that it was "far from substantial" even if I were to find that fencing did fall within the award as being a building activity.72 Mr Bessell conceded that it is possible for an employer to be engaged in a number of industries, but that in this case, he said, the facts do not meet the two essential tests (established by the High Court) that are necessary in order for the Commission to be satisfied that the award applied to Colony 47.73 Mr Long for the Applicant Mr Long said that Colony 47 was in the business of getting government fencing contracts:
He said that the fact that Colony 47 had paid some of the employees engaged on these fencing contracts, once they had finished their traineeships, under the terms of the federal National Building and Construction Industry Award indicated that the employer accepted that those people, once the traineeships were complete, were bound to award conditions.75 Whilst Mr Long agreed that the object of the project for trainees had wide implications he said that, in the case of the three employees the subject of this dispute, they were not trainees.
Mr Long submitted that fencing work was not incidental to the Making a Difference project, but was the principal work of the employees engaged on the project.77 Mr Long said that building fences is clearly in the building industry78 and therefore falls within the Building and Construction Industry Award79. In Mr Long's submission, the evidence put by the respondent related to trainees and training, the objectives of Colony 47 and the role that organisation plays in the community. All of this, he said, was irrelevant to the three employees:
Mr Long submitted that the authorities relied upon by the respondent were irrelevant because they dealt with contractors going onto a site rather than with direct employees as was the case in this instance.81 Mr Long cited the example of Pasminco, where many different awards apply to the direct employees of that company, depending upon the type of work performed. Findings I find that the `industrial enterprise' that Colony 47 was engaged in with reference to the three employees the subject of this dispute was that of a fencing contract, entered into with the Department of Health and Human Services, albeit that Ms Ham in her evidence referred to the contract as a "service agreement".82 Mr Long submitted that the authorities referred to by the respondent in reference to determining the industry of the employer were irrelevant in that they dealt with contractors going onto a site rather than with direct employees, as in this case.83 Whilst it is true that this case is differentiated from the cases cited by the respondent in that respect, I still propose to examine the facts and circumstances of this case in the light of the tests contained in those authorities, because, in my view, the tests are still the correct tests to be applied. Colony 47 were contractors in the sense that they had entered into a contract with the Department of Health and Human Services to build fences and other structures in Rokeby. In R v Central Reference Board; Ex parte Theiss Hungerford J made the point that just because an engineering workshop might, for example, perform repairs for a coal mine, a gold mine and a shipping company, that did not mean that engineering workshop was in the business of coal-mining, gold-mining, or shipping. He said:
Therefore, applying that reasoning to the instant case, simply because Colony 47 was providing a service to the Department of Health and Human Services, in this case the construction of fencing, that does not make Colony 47 part of the Health and Human Services industry. The contract provider does not take on the industrial characteristics of the body for whom the contract is being provided. Hungerford J goes on to say in the Thiess case:
Hungerford J also refers to the High Court Poon Bros case:
I have already determined that the substantial character of the industrial enterprise in which the employer and the employees were engaged was a fencing contract; that the work performed was fencing; and that fencing falls within the scope of the Building and Construction Industry award. In examining the relationship of the contractor's business to the claimed industry it is necessary to look at the evidence presented regarding Colony 47. Colony 47 Inc's Rules87 show that the objects for which the Association is established include:
services for the relief of loneliness; These are very broad descriptions of services which could be delivered in any number of ways. In particular the provision of services which "develop skills for employment and personal existence" could mean the actual provision of employment in any number of industries. In this case, the evidence shows, the aims of the Making a Difference Project included the development of "skills for employment and personal existence" and that a means of achieving this was employment creation through directly employing people on a fencing project in a disadvantaged area.88 The evidence of Mr Redmond referred to in an earlier section of this decision showed clearly that the selection of people to work on the project was in order to develop their employment and social skills.89 Page 29 Colony 47 is an organisation which provides, amongst other things, employment opportunities for disadvantaged people. As part of this aspect of its services Colony 47 could be involved in the employment of people in a range of different industries. In this case they were involved in the employment of people in the building industry. In my opinion, Colony 47's charter does not limit the range or scope of the means by which employment and life skills can be developed. The evidence at a number of points indicates a substantial involvement in employment and training programs. I find that Colony 47 is an employer in the building industry, in that it directly employed people to work within the building industry. Colony 47 entered into the building industry when it entered into a contract to build fences and directly employed people to do so. Having already found that the work performed by the employees falls within the scope of the Building and Construction Industry Award and having also found that that Colony 47 is bound by that award I find, therefore, that the three employees are entitled to be paid, for the relevant periods, under the terms and conditions of the Building and Construction Industry Award. Remedy At the outset, Mr Bessell for the respondent employer, indicated that, should there be a ruling that entitled the three employees to a payment, then the parties would get together to work out the actual amounts owed. The applicant union tendered some documents90 which indicated in general terms what the employees might be entitled to. It was accepted by the parties that this Exhibit was no more than an indication in respect of what the claim was.91 During the hearing Mr Bessell made it clear that the employer was disputing the claim in terms of rostered day off entitlements and travel allowances.92 It is my intention to give the parties the opportunity to try to reach agreement on the employee's entitlements under the terms of the Building and Construction Industry Award. I intend to issue an Order on the basis of payment according to the above award. Hopefully it will be a Consent Order. To this end I intend to reconvene the hearing of this matter for the purpose of settling the minutes of my proposed order. My Associate, Mrs C Broomhall, will contact the parties for the purpose of arranging a convenient date and time of such hearing.
P C Shelley Appearances: Date and place of hearing: 1 Transcript 12/4/00 p.51. |