T10332 - 22 July
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Construction, Forestry, Mining and Energy Union, Tasmanian Branch and Island Block & Paving Pty Ltd
Industrial dispute - alleged unfair termination of employment - application out of time - alleged breach of award - Civil Construction and Maintenance Award applies - alleged breaches of Building and Construction Industry Award dismissed REASONS FOR DECISION [1] On 1 November 2002, the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Island Block & Paving arising out of the alleged unfair termination of Barry Mahnken. [2] This application was the subject of a number of conciliation conferences commencing in October 2002. As the dispute remained unresolved, the matter was set down for hearing in Launceston on 26 May 2003. [3] Mr W White, of the CFMEU, appeared for the applicant. Mr A Cameron, of the TCCI, appeared for the employer. [4] This application is in two parts. Firstly, the applicant submits that Mr Mahnken was unfairly dismissed. Secondly, Mr Mahnken asserts that the employer was in breach of the Building and Construction Industry Award and seeks an appropriate Order to remedy this position. [5] Both parties agreed that neither the alleged unfair dismissal nor the substance of the alleged award breaches could be properly dealt with until the question of the appropriate award coverage was determined. As a consequence I deal with this issue first. [6] During the hearing evidence was taken from the following:
Alleged Award Breach [7] The original application cites alleged breaches of the Building Trades Award in respect of Definitions; Wage Rates; Annual Leave; Contract of Employment; Fares and Travelling; First Aid Equipment; Hours; Meal Allowance; Overtime and Special Time; Payment of Wages; Posting of Award; Public Holidays and Holiday Work; Sick Leave; Special Rates; Weekend Work. [8] By letter dated 1 November 2002, the CFMEU foreshadowed an application to amend by citing the Building and Construction Industry Award in place of the Building Trades Award. Subsequently leave was granted to amend the application.1 Employment History of the Applicant. [9] The employer first engaged Mr Mahnken in April 1994. It seems that the parties accepted this arrangement as that of a contractor. Mr Mahnken would submit an invoice on a monthly basis and was paid at the rate of $17 per hour. [10] Shortly thereafter Mr Mahnken was offered a full-time position. The evidence as to what happened next is in conflict. Mr Mahnken said the offer was withdrawn before he had a chance to accept or reject2. Mr Fawdry said that Mr Mahnken declined the offer.3 [11] Effective from 13 August 1997 Mr Mahnken went onto "wages". The hourly rate was reduced to $15.98 apparently to compensate for the employer becoming responsible for Workers Compensation cover. The new arrangement did however ensure regular payment each fortnight. The hourly rate was increased to $16.20 per hour on 16 July 1998 and to $16.27 per hour from 22 October 1998. [12] On 6 August 2001, Mr Mahnken suffered a back injury whilst laying concrete blocks to build a retaining wall. [13] On 15 August 2001, he commenced "light duties" in the factory at a reduced rate of $14.50 per hour. [14] The evidence in relation to the next few months is, to some extent, in conflict. Mr Mahnken said that he was not given a Workers Compensation claim form and had to chase down a form through his own devices. Mr Fawdry said that a claim form would have been provided "fairly quickly." [15] Eventually a claim was submitted by Mr Mahnken. Initially the insurer disputed the claim. However by letter dated 23 November 2001, Mr Mahnken was advised that liability had been accepted. [16] Mr Mahnken continued to work on light duties in the factory notwithstanding medical certificates, which progressively cleared Mr Mahnken to resume "limited", and then "normal" paving work, provided "heavy lifting" was avoided. [17] It was during this period that Mr Mahnken raised the issue of appropriate award coverage. Initially Workplace Standards Tasmania became involved and met with the employer on at least one occasion. Later the CFMEU became involved. It would appear that Workplace Standards did not pursue the matter after the union became involved. [18] Mr Mahnken's last day of actual work was 23 May 2002. [19] Subsequently a medical certificate was issued indicating that Mr Mahnken ceased to be incapacitated from 24 June 2002.4 [20] The claim alleging award breaches relates to the period 13 August 1997 until date of termination, which remains in dispute. Nature of the Work Performed. [21] Mr Mahnken described the work he performed as follows:5
[22] Extensive evidence, including photographs, was provided as to the nature of the work performed by Mr Mahnken. [23] The work can be summarised as follows: The laying and/or placing of concrete or clay bricks, blocks and pavers to form:
This work was undertaken on a range of sites, which included:
[24] On many occasions Mr Mahnken worked alone although on larger commercial projects he sometimes worked as part of a gang. Mr Mahnken would also frequently use his own vehicle to pick up materials such as sand and gravel for delivery to the site. The Pattern of Work [25] The agreed position between the employer and Mr Mahnken was that he would be paid for hours actually worked on the job.6 It was uncontested that Mr Mahnken worked on an as required basis. The following exchange captures the working arrangement.7
[26] From Mr Mahnken's Group Certificates it would appear that he worked, on average, the following hours per week approx.
[27] Mr Fawdry said that Mr Mahnken was free to undertake private work if he was not required8. Mr Mahnken agreed that he had undertaken between six and eight private jobs since 1997. These jobs ranged from one day to many days, with the biggest job taking about 20 days spread over a five-month period. Award Coverage [28] The correct approach in determining award coverage was discussed by the Full Bench in Northern Group training Ltd v NUW9.
[29] This approach can be contrasted with that of many federal awards whereby there are named respondent employers and the work of the employee becomes the paramount determining factor. A good example of this is the National Building and Construction Award 2000. Clause 6.1.1[a] of this award states:
[30] Under the legislative scheme applicable to Tasmanian State awards, it is distinctly possible that two individuals performing identical work, might be subject to different awards, dependent on the nature of the industry applicable to their employer. [31] In the instant case there is a disagreement, both as to the nature of the industry applicable to the employer, and the appropriate classification for the work performed by Mr Mahnken. In these circumstances I propose to determine firstly, which award/s if any might apply to the work described above, and then apply the employer's industry test to determine the appropriate award coverage. Note: All references in this subsequent analysis are to awards as they existed at the relevant time. Building and construction industry awards were substantially restructured as at October 2002, but this post-dates the relevant period of employment. Building and Construction Industry Award [32] Clause 2 Scope, reads:
[33] In clause 7 Definitions, "Building Industry Work" is defined as:
[34] Mr White contended that the appropriate classification is that of Bricklayer, which is defined in Clause 7 as:
[35] Thus, for it to be possible for this award to have application to the work described by Mr Mahnken, such work must fall within the definition of both that of a Bricklayer and Building Industry Work. I turn firstly to the Bricklayer classification. [36] Mr White relied on the words:
[37] It would appear that the laying of "segmental/unit paving" is a component of the Bricklaying and Block Laying qualification, albeit an elective component.10 I note in passing that "tuckpointing" also appears to be only an elective component of the course. [38] Mr Cameron argued that that to be classified as a Bricklayer, a person must be engaged on bricklaying or tuckpointing work. The words that follow are to read as meaning that a person so engaged might also be required to perform the work so described in the second sentence. The definition should not be read backwards so as to elevate the laying of paving bricks in sand on a full-time basis to mean that an individual should be regarded as a bricklayer in the context of the award. [39] Whilst it is common ground that Mr Mahnken is not a qualified tradesperson and does not perform work traditionally understood as bricklaying, I am unable to accept Mr Cameron's contention. [40] Unlike many, perhaps most, awards of this Commission, there is nothing, on the plain words of the definition, that suggests that a trade qualification, or even equivalent experience and skill, is a prerequisite for an individual to be classified as a bricklayer. [41] I gain some comfort for this conclusion from the proviso immediately following the definition for Casual Hand/Equipment Operator, which reads:
[42] This expression clearly contemplates that non-trade qualified personnel may be required to undertake "tradesman's work." [43] I note also that the terms "bricklaying" and the "laying of all types of blocks" appear in identical context to the words "laying ... paving bricks and bricks, blocks or tiles laid in sand". There is no basis on the words used for this latter expression to be read down in the manner suggested by Mr Cameron. [44] Mr Cameron's submission also begs the question of how one would classify a qualified bricklayer who was engaged exclusively on the laying of brick pavers in sand? [45] I conclude that the classification of bricklayer would be appropriate for the type of work undertaken by Mr Mahnken, provided that the employer was in the industry to which the award applies. [46] Turning to the definition of "building industry work," which in turn relates back to the Scope clause, the critical words are:
[47] The definition goes on to cite certain specific work which is to be considered as being "building industry work". Of these specific references, sub-clauses (e) and (f) might be relevant to the instant matter. [48] Part A3 Classification of Buildings and Structures of the Building Code of Australia Vol 1 contains the following reference:11
[49] I conclude therefore that a freestanding retaining wall is a "structure" in the context of this definition. [50] Subclause (e) of the definition reads:
[51] The first part of this subclause clearly contemplates a car park "within the alignment of a building". An example of this would be a multi storey car park, which is clearly "building industry" work. It is not, however, the type of work which Mr Mahnken performed. [52] The second part of the sub-clause is ambiguous. In the absence of any authoritative guidance, I conclude that this is intended to cover "vehicle and personnel access" whilst the site remains a building site. In the alternative, it may well refer to "vehicle and personnel access" for a car park enclosed by a building. It is not, in my view, open to read this in the wider context of vehicle and personnel access to any building, once the site has ceased to be a building site. [53] The remaining question is whether footpaths and driveways have a "connection" with a building in the context of the general definition. [54] I have no hesitation in concluding that footpaths and driveways installed on a property where there is an established building (occupied or not) is not work covered by this definition. Support for this conclusion can be found in Brickpavers Pty Limited and BWIU12 in which Connor C dealt with award coverage for brickpaving work on domestic and other sites. The Commissioner observed:13
[55] And later:14
[56] In circumstances whereby the paving work is performed whilst the building is under construction, I have difficulty in concluding that there is sufficient connection with the building to bring the work within the purview of the definition. [57] In most cases there is an absence of integration between the building and the driveway or footpath. One can proceed in the absence of the other without affecting the structural integrity of either. [58] In the context of this award the critical issue is: who does the work? I would accept for example that where a bricklaying contractor carries out both the bricklaying work on the building as well the paving of footpaths and driveway on the same site, then there would be a connection between the building and the paving work, so as to bring the latter within the definition of building industry work. [59] The same conclusion would not necessarily follow if the paving work was performed by another entity on a stand alone basis. Indeed, it is unlikely that the work would fall within the definition. [60] I further conclude that paving work on projects whereby there is no building at all, eg car parks, roads and footpaths, would not fall within the definition. [61] Mr White referred to a decision of Watson C in relation to the National Building and Construction Industry Award15whereby the AIRC was asked to determine both union coverage and award classification for the Swanston St Walk project. It is of interest that the Commissioner concluded that the project was a civil construction project rather than a building project.16 [62] The Commissioner went on to find that some of the work undertaken fell within the definition of stonemason under that award. Whilst this is of passing interest, it has no direct relevance to the instant matter. Firstly, Mr Mahnken does not claim to be doing the work of a stonemason. Secondly, the award is based on a system of named respondents, and for reasons discussed earlier in this decision, cannot be simply transposed to Tasmanian State awards. It is also of passing interest that the Commissioner made reference to a 1992 demarcation agreement between the AWU and CFMEU.17
[63] This of course is a demarcation agreement and has no bearing on award coverage in Tasmania. It does however indicate that, at a federal award level, the work of segmental paving is not the exclusive province of the National Building and Construction Industry Award. Civil Construction and Maintenance Award [64] This award came into effect on 7 September 1999. It replaced an award known as the Roadmakers Award. The Scope clause in both awards was expressed in identical terms:
[65] The definition of a Construction and maintenance worker grade 4 refers to "Paviours (including segmental paving); ..." [66] The definition for Construction and maintenance worker grade 3 refers to a "Wall builder". [67] The earlier Roadmakers Award contained the same classifications, albeit at slightly different levels. [68] There can be little doubt that classification of Paviours (including segmental paving) provides a very accurate description of the work performed by Mr Mahnken. Whilst there does not appear to be a definition of "Wall builder", it would seem likely that this could include the construction of retaining walls, if indeed this task is not embraced within the work of a paviour, which I suspect it is. [69] Looking at the Scope clause, there can be no doubt that paving work in connection with the construction of the following, could be covered by this award:
[70] In relation to retaining walls, I conclude that the work could be subject to either this award, or the Building and Construction Industry Award, depending on the industry of the employer. Concrete Products Award [71] The Scope clause of this award reads:
[72] In Clause 8 Wage Rates, Division A covers "Employees Engaged in the Production of Concrete Products". [73] This Division contains a range of classifications which are clearly linked to a manufacturing, factory based environment. It follows that these classifications might have relevance to the work of Mr Mahnken for those periods during which he was engaged in factory operations. [74] Clause 4 of this Division reads:
[75] Mr Cameron submitted that, by virtue of this clause, the wage rate for a paviour in the Civil Construction and Maintenance Award would apply, with conditions of employment taken from the Concrete Products Award. [76] I do not accept this submission for two reasons. [77] Firstly, with a limited number of exceptions, awards of this Commission are based on the industry of the employer, rather than the occupation of the employee. In such circumstances it would seem impossible to determine "the appropriate award covering their craft or calling." [78] Secondly, Division A relates only to "Employees Engaged in the Production of Concrete Products." Insofar as the work in dispute is concerned (i.e paving), Mr Mahnken was not engaged in the production of concrete products. It follows that Clause 4 of this Division has no application to the work performed by Mr Mahnken, even if it was otherwise enforceable. [79] I conclude that the Concrete Products Award does not apply to the paving work performed by Mr Mahnken. What is the Industry of the Employer? [80] Having determined that both the Civil Construction and Maintenance Award and, to a lesser extent, the Building and Construction Industry Award, could both potentially have application to the type of work performed by Mr Mahnken, it is now necessary, in accordance with NGT v NUW, to assess "the character of the employer's business." [81] Island Block and Paving Pty Ltd is unquestionably engaged in the industry of manufacture of concrete and masonry products. It is of course quite possible for a business to be engaged in more than one industry. In the instant case the question to be determined is whether the business is also engaged in the building and construction industry, or a sub-element of this industry. [82] The ISO Certificate of Approval refers to:18
[83] Mr Fawdry's business card contains the following notation:19
[84] In his supplementary submission, Mr White enclosed an extract from the Yellow Pages for the 62 area. This extract covers the heading of "Paving - Brick" in which the employer is advertising a "Supply and Laid" service. [85] I note in passing that on this same page there are at least seven other entries whereby businesses describing themselves as landscape gardeners offer a similar laying service. Whilst this is not a matter before me, this does raise the prospect that at least one further award, namely the Horticulturists Award, might also have application to this type of work, depending of course on the nature of the employer's business. [86] Having regard for the totality of the evidence, I am satisfied that the employer is engaged in the construction industry. [87] I am unable to conclude that the employer is engaged in the building industry. Apart from the supply of certain building materials, the employer is not engaged in the construction of buildings, nor does its activities have sufficient connection with the construction of buildings to bring it within the purview of the building industry. [88] I am however satisfied that the employer is engaged in the civil construction and maintenance industry as described in the Scope clause of the Civil Construction and Maintenance Award. [89] The Scope clause of the Building and Construction Industry Award includes the following:
[90] This statement is unambiguous. If some other award applies, then the Building and Construction Award does not, even if in the absence of the other award, it might have application. [91] I find that the Civil Construction and Maintenance Award has, in most cases exclusive, and in some cases at least equal, coverage of the work performed by Mr Mahnken whilst in the employ of Island Block and Paving Pty Ltd. It follows that by virtue of the above qualification in the Scope clause, the Building and Construction Industry Award does not apply to the work performed by Mr Mahnken. [92] Mr White also relied on s53 of the Act which reads:
[93] In my view, this section does not assist the applicant. Mr Mahnken did not perform "2 or more classes of work to which different awards apply.." Mr Mahnken performed one class of work and the debate is: which of the competing awards has proper application? That question has been decided in favour of the Civil Construction and Maintenance Award. Conclusion [94] This application was limited to alleged breaches of the Building and Construction Industry Award. I have found that this award does not have application. It follows that this part of the application is dismissed. Alleged Unfair Termination. [95] Mr Cameron contended that the application was lodged outside the 21 day time limit imposed by s29[1B] of the Act and that no "exceptional circumstances" had been demonstrated to justify an extension of time. It is necessary to determine this preliminary issue ahead of any merit consideration. [96] The uncontested facts are:
[97] Mr Cameron submitted that the letter of 5 July 2002 could not be construed as a letter of termination. He submitted that Mr Mahnken was engaged on a genuine casual basis. The work performed was on an "as required" basis and he was free to undertake private work if no work was offered with the respondent. [98] Mr Cameron said the termination (if indeed there was one) took place on 24 June 2002. [99] In the alternative, Mr Cameron submitted that there had not been a termination at the initiative of the employer. He said that the only obligation to the employer was provide "light duties" as required by s138A and 138B of the Workers Rehabilitation and Compensation Act. That obligation ceased, Mr Cameron submitted, when Mr Mahnken ceased to be incapacitated on 24 June 2002. [100] Mr White relied on the 5 July letter as representing the date of termination. He said:21
[101] In Mr Mahnken's statement he referred to a meeting with Mr Bill Fawdry on 11 February 2002. Relevantly the statement said:22
And later:23
[102] Questioned in relation to the 5 July letter, Mr Mahnken said:24
Finding re Out of Time Application. [103] I am satisfied that Mr Mahnken was employed on a genuine casual basis. He clearly worked on an "as required" basis and was free to perform private work, which he did as recently as May 2002. Whilst it is not a matter I am required to determine, I do not see any barrier to this form of employment under the terms of the Civil Construction and Maintenance Award. [104] I am satisfied, on the evidence, that Mr Mahnken was aware that his employment arrangement would terminate at the time he ceased to be incapacitated. That event occurred on 24 June 2002. [105] I am unable to conclude that the letter of 5 July 2002 can in anyway be construed as a letter of termination. Indeed, if anything, it is a letter offering future employment options. [106] I am satisfied that the employment contract came to an end on 24 June 2002. Nothing was put forward by way of "exceptional circumstances" to justify an extension of time. [107] I conclude that the application was lodged outside the 21 day time limit imposed by the Act. Pursuant to s21(2)(c) of the Act, I refrain from further hearing the matter.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript PN 15 |