Sth August 1988 JUDGMENT No. FASS Rew CATCHWORDS: Industrial law - award - breach - whether making transportable homes in factory "construction work" as defined - whether work "in connection with the erection...... of buildings or structures" - whether implied exclusion by express inclusion of "the prefabricating of a building in an open yard" - factors in mitigation of penalty. Conciliation and Arbitration Act 1904, ss. 119, 120, 125(2), National Buildin Trades Construction Award 1975 Traffic Act 1925 (Tasmania) s.4 Tourism (Caravan Parks) Determination 13973 (Tasmania) cl.2. PETER ROBERT SAUNDERS v. PARK HOMES PTY. ETD. No. TI 3 of 1988 Gray J. Hobart cermesy ore ep ee eee IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY INDUSTRIAL DIVISTON No. TI 3 of 1988 BETWEEN : PETER ROBERT SAUNDERS Applicant -and- PARK HOMES PTY. LTD. Respondent MINUTES OF ORDER THE COURT ORDERS THAT: The respondent pay a penalty in the sum of $25.00 in respect of breaches of the terms of the National Building Trades Construction Award 1975 in failing to pay to Anthony Paul Lucas the amounts which it was obliged to pay to him under that Award in respect of the weeks ended 19th November 1986, llth February 1987 and 13th May 1987. The respondent pay the penalty into the Consolidated Revenue Fund. ee eg eee te ve (NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.) wm pore ee oe ee ee re "oo, . ttyl ra IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY No. TI 3 of 1988 INDUSTRIAL DIVISTON Award. to $s.125(2) BETWEEN : PETER ROBERT SAUNDERS Applicant -and- PARK HOMES PTY. ETD. Respondent REASONS FOR JUDGMENT The crucial question in this proceeding is whecher work performed by an employee of the respondent during the velevant periods fell within the tersms of the Nasional Building Trades Construction Award 1975 ("the Award"). The proceeding takes the form cf an application pursu fu te] ct cr QO iv) RR I wo of the Conciliation and Arbitration Act 1904 ("the Acc"), for the imposition of characterization of the parti There is no ap ai ~ t kg i fe) ny My BR i @ Q G Qs tr Nn w fu a@ a fa) rh ¢ ty @ Q c lel wu % a5 haw The applicant is an inspector, appointed pursuant of the Act. He therefore falls within the we ne ee ene ee respondent paid Mr. Lucas $307.68, $307.68 and $317.63. tf 2. definition of "inspector" in s.4(1) of the Act, and is empowered by s.119(2)(aa) to sue for and recover a penalty for breach of a term of an award. The respondent is a company, incorporated in Tasmania. At the relevant times, it was a member of the Vicrorian Employers Federation, which is ey named in the schedule of respondents to the Award. By virtue of cl.7(b) of the Award, the Award is binding on the Victorian. Employers Federation, as an organization of employers listed in that schedule. By virtue of s.61(f) of the Act, the Award binds the respondent as a member of such an organization. It so binds in respect of employees, whether they were members of organizations registered under the Act of not. Three periods are specizied in 'the statement of claim which was filed with the application as being the periods in respect of which the respondent is in breach oF the award. Those aré the weeks ended 19th Nevember 1986, llth Februacy 1987 and 13th May 1987. During a perisd which included each of those wesks, the respondent employed one Anthony Paul Lucas, who had previcusly served an apprenticeship with another employer, and had become a qualified carpenter. In respect of those weeks, the the Award was applicable, the respondent was obliged to pay Mr. Lucas $370.88 in respect of each of the weeks. \e pen eres en eee o It is necessary to set out certain provisions the Award. These are as follows: "6. - SCOPE "Ih. Subject to the exceptions and modifications contained in this award, this award apolis to the employment oz ersons engagec on construction wock (as defined) of the classifications contained in this award. Provided that this award shall not apply to the following: (a} the making of implements of agriculture (b) the work of ship carpenters or ship joiners or of seagoing carpenters on articles 8 - DEFINITIONS 6. "Carpenter and Joiner" means an employes employed as a carpenter and/or joiner upon shep fitting work o construction work as defined in this clause. Without limiting che generality of the foregoing, the work of Carpenters may include: (a) work in connection wit prefabricated units; * (b} the marking out, lining, plumbing and levelling of steal formwork and supports thers (c) the stripping. "Ge steel Formwork shutters or boxing; (d) the erection of curtain walling and th fixing or external wall cladding; (e} elsewhere than in South Australia (subject to subclause -Li.1) and Victoria (subject to paragrapt 8.6(g)), the erection of suspended ceilings except where wet plaster is used; (f) the erection of metal windows or doors; (g) in Victoria, the erection of suspended ceilings including the of wpe tee "s — suspensions thersor; provided thac where ceiling finish is to be hard (wet) plaster, fibrous plaster sheets or tiles, gypsum board or other material having a plaster content, the work of carpenters in Victoria shall not extend to such ceiling finish, or the batten, lath, track or channel to which the finish is to be attached; (h) the manufacture, installacion, alteration and/or repair of shopfronts, showcases, exhibitors' stands, and interior fittings and fixtures in o¢ on buildings, and the erection or installation oft partitions including partitions involving wrap-around glazing and the erection or installation oz partitions including the insertion of glass panels where the glass is 6.35mm or less in thickness by beads" or moulds or other dry glazin mechcds (i) the deawing or shaping or meral is mot required in respect of paragraphs {(d), (el, (fF and (g} hereof; and {ii) nothing in this definition shall be construed as giving a carpenter an exclusive cight to the work specifie in paragrapns (c), (d), (@) and (f£) hereof. wee ene LO. "Construction work" means all worl performed under this award in connection with thea erection, repair, renovation, maintenancs, ornamentation or demolition of Suildings or structures, including the making, assembling or fixing of woodwork an Fittings in comnection therewith, the making, preparing, assembling and fixing of any material necessitating the use of tradesmen's tools or machines including all work performed by stonemasonry classifications (provided that in the States of South Australia, Victoria and Western Australia work in stonemasonry yards ero so ns t~ Ql and/or shops and in cemcteries shall not be regarded as ecenstrucction work) and the prefabricating of a building in an open yard. aa reee ew The respondent occupies premises, described as being at Warrane or Mornington in Tasmania. Tae premises consist of two large sheds. Inside these sheds, the respondent manufactures and it out what one of aa cr nv directors, Anthony Bennett Park, describes as transportable homes. These homes have external cladding of aluminiun, internal panelling of plywood, and polystyrene sandwiched between the cladding and the panelling in the walls. Each fu has an aluminium roof. There is also a chipboard floor, on feame or chassis of galvanised metal. The sizes of the homes vary, but each is incapable of registration as a trailer under Tasmanian law, by reason of excessive width alone, or excessive length and width. The chassis of each home has, as an integral part of it, metal cunners. To these runners, it is possible to bolt an axle with wheels. There can also be bolted to one end of the chassis a draw bar, and to the other end a board equipped with rear lights, indicator lights ane brake lights. With these attachments, the home can be towed, although it remains incapable of permanent registration. A permit oc permits must be obtained for the short term for which towing is required, and trade plates or marks are used instead of ae eee ns a ry ee 6. normal registration plates. The respondent owns six sets of axles with wheels, draw bars and light boards. When a tcansportable home is bought, the purchaser usually requests the respondent to deliver it to a particular sits Approximately one quarter of transportable homes sold ara towed by means of the axle, draw bar and light board. the transportable home arrives at the intended site, these items ara removed and yetained by the respondent. Ons customer only has purchased two sets of wheels, draw by @ ty [) fp ba) fy light boards, because it wishes to he abla to tow a si N 1) br rae (b lest of transportable homes from place to place in the future. The remaining three quarters af transportable homes sold are dalivered by méans of a large trailer. Mr. Park's evidence was that this trailer is primarily necessary because p bad roads make it difficult or impossible to tow the homes cn attached axle to many places. The respondent + does offer purchasers of its transportable homes a relocation service, should they desire to move the homes from their original sites. So far, only about one tenth of homes manufactured by the respondent have been relocated by it. In most cases, the transportable homes are sited on an apparentiy permanent basis in caravan Tasmanian legislation, they can be so site fui crQ Cc ct cr '. 0) necessity to comply with normal building regulations. Some are located on private land, under temporar7 renewable from year to year. Transportable homes wegen ee 7. manufactured during the relevant periods did not comply witn normal building regulations, so could not he located permanently as, for instance, "granny flats". The tcansportable homes are complete with interior fittings. Some have bathroom facilities, and some kitchens. When they are delivered, licensed persons must connect electric power and plumbing, including downpipes. The work done by Mr. Lucas during the relevant periods consisted o ay making and installing within transportable homes kitchen » units and architraves. For this work, he used the skills and tools of a carpenter. All the work was cavycied out inside the sheds at the respondent's premises. The respondent began manufacturing transpoctabies homes in 1986. It has common directors wich a company named Suburban Rent-A-Truck and Caravan Sales Pty. Ltd., which trades under the name Caravan City. For some years, that company has sold caravans, including those too large for normal registration under Tasmanian law. Those caravans have been brought from other States of Australia, where they are manufactured by several companies. From about 1977, the cost of transporting newly manufactured caravans to Tasmania became so great that faw or nome wers so transported. The business of Caravan City became concerned primarily with selling used caravans. Demand existed, however, for transportable homés. After receiving advice -from the — qo ape eT terre 4. t . "3 we or ee eAgatpe oto wy nner ms een a wa ee pe eee ee = mepnee + 8. manufacturers of Jayco preducts in Victoria, and bringing ¢ Tasmania a Jayco transportable home, the directors formed the vespondent to manufacture transportable homes. Some time was spent in evidence and in argument over the question whether the respondent's transportable homes should be classified as caravans, or as vehicles. In his evidence, Mr. Park relied on the method cf construction of the transportable homes, which is very similar to the method of construction of what would normally be vegarded caravans, namely vehicles equipped to accommodat2 persons, having wheels, towing apparatus and appropriate lights affixed to them. He also emphasised the presence o rh cr gf a metal runners as an integral part of the chassis of each tcansportable home, which runners area included for the purpose of enabling wheels and other items to be attached for towing. Reference was made te the definiti fo)fe) my d ty ! + ta a i- @ p the Traffic Act 1925 (Tas.)} which "includes any description of vehicle designed to move or to be moved on one of more wheels", and to the definition of "caravan" in the Tourism (Caravan Parks) Determination 19738 (S.R. 1978 No. 247) (Tas.), which includes an "other conveyance used fore human habitation and capable of being towed". Further, some reference was made to awards of the Australian Conciliation and Arbitration Commission relating to the vehicle industry, and to the possibility that one such award might apply in its own terms to the work performed by Mr. Lucas for the respondent. co wee ee tere en ees epee ptewee ee ee ee ee ee ee a att These considerations do not, however, address the question before the Court. The Court's task is to determine whether the work the subject of the proceeding falls within the terms of the Award. At the heart of this question is whether such work was performed "in connection with the é % ection...of buildings or structures", within the definition of "construction work" in the Award. In determining whether a transportable home answers the description of a "building" oc a "structure" within that definition, the question whether is answers the description of a "cavavan" or a "vehicle" is of little, if any, assistance. This is particularly so where the definitions of "caravan" and ""véhicle" are legislacive definitions, of an inclusive nature, which may be intended ts catch items not necessarily covered in the ordinary meaning of those expressions. There is considerable danger in construing an award of the Australia Arbitration Commission which is applicable in all States of Australia by reference to the effect of the legislation o ry one of those States. The award will not necessacily have been made with the legislation of any particular State in mind. A construction taking account of one State's legislation may lead to difficulty when that construction comes to be applied in another State. Finally, the possibility that particular work may fall within the terms o rh another federal award is not determinative of the construction of the award. It would be wrong to assume that Bay " we wo en ae cen me see ee et 1o. the Australian Conciliation and Arbitration Commission makes awards in some monolithic and systematic fashion, so that all fi awards fit neatly together like the pieces of a jigsaw puzzle. Because awards are made in settlement of industrial disputes, and Secause emp ~ oyers and employer organizations may be parties to more than one award, overlap mey occur from tine tc time. When such overlap is discovered, the question of the desirability of the application of one or more of the overlapping awards is one to be raised with the Commission, not one to be dealt with by the Court. The question which confronts the Court in this afr case, therefore, is one of construction of the Award. This is by no means an easy task, because of scme expressions used in the Awacd. It will be notad that, by victue of cl. 6, the Award applies to the employment of persons engaged on construction work as defined. The defini (Tr a i n of "construction work" includes the phrase "ail work performed under this award". his may lead to some circularity between th oO a o finition and cl. 6, unless the view is taken that that phrase in the definition is intended to encompass any ts yeferences to specific kinds of work which may be JZound elsewhere in the Award. Such a specific veferance dees occur in the definition of "Carpenter and Joiner", where "shop fitting work" is mentioned. _yenn ae wee oe ee aeen ee cet cet empeesne : dee Myon eae een ee eR > ' x . . . — It will be noted that the definition of "construction work" is of a "means...and includes..." type. The proper approach to such a definition is to decermine the ordinary and natural meaning of the words which, it is said, the expression concerned "means", and to cd che rs wo 'a be. clusions as extending that ordinary and natural meaning. In some cases, an express inclusion may give rise to an implied exclusion of something which might ocherwise have . See The meaning of the word "building", when used as a noun, depends upon the context in which it appears. In some English cases, some unusual structures have been held to fall within it. See Aylward v- Matthews £1905] 1K.B. 343, Knight v. Demolition and Construction Co. Ltd. £19533 1 W.L.R. 981, Elms v. Foster Whesler Ltd. £19547 1 H.L.R. ma 1071 and Re St. Luke's, Cheises [1976] Fam. 295 contrast, in R. v. Williams; Ex Parte Australian Build Construction Employees' and Builders Labourers' (1982) 153 C.L.R. 402, the majority of che Sigh Court too the view that various steel structures of a permanent nature were not "buildings". A similar view was taken by this Couct in Australian Building Construction Emplovses' and Builders Labourers' Federation v. Dillingham Australia Ltd. (1982) ree orp = ase ' or a 12. S58 F.L.R. 170. In that case, at p. 175, there appears a useful statement as to the ordinary meaning of the word "building". Sheppard J. said "...because "building" in normal usage connotes a structure with doors and a roof designed to house people, animals, plant or machinery." Reference might also be made to what seems to bea wide h definition of "building" in the Macquarie Dictionary, "anything built or constructed". The respondent's transportable homes are clearly built or constructed. Further, each has doors and a roof and is designed to house people. But for the factor of moveability, the transportable homes would appear to fa iy t-+ within any ordinary meaning of the word "buildings" which be W adopted. Even if this were not so, the transportable a a 13) m » es" unless their moveabilit c a must be regarded as "struct g takes them outside the ordinary meaning of this word. It KE} be difficult to see why moveability shceuld exclude something from being a "building" ora "structure". cams such as cr portable classrooms or temporary office or amenities facilities on construction sites, which are designed to be moved after disconnection of elecctricizy and plumbing, would ordinarily be regarded as buildings. Such items are very similar in nature to the transportable homes the subject of this proceeding. Some indication of an intention to cover moveable structures in the Award is found in the exclusions which I have quoted in cl.6. Unless moveable structures are ee eee we pe ere eee "4 Yee 123. otherwise covered by the Award, it would not be necessary to exclude the making of implements of agriculture, or work on ships. It is true that care must be taken in relying on exclusions of this kind. Often they dre inserted in awards out of an abundance of caution, to protect work done by members of employee organizations not parties to the award. In the present case, I do not rely upon the exclusions to a high degree. In my view, the Award in its ordinary terms applies to buildings and structures of a moveable kind, in the same way in which it applies to buildings and structures of a fixed kind. The work performed by Mr. Lucas for the respondent therefore appears to have been work "in connection Pp ot with the erection...of bk uildings or structures", within the meaning of the defini cr ton of "construction work" in the Award. It was argued on behalf of the respondent that the specific reference in the definition of "construction work" to "the prefabricating of a building in an open yard" disclosed an intention to exclud= any prefabricating other than that of a buiiding in an open yard. It was argued that, if the transportable homes are Suildings, they were being prefabricated under a roof, and not in an open y¥ Pe fd, and could not therefore fall within the definit Is en of "construction work". we Copereaee os mw ween eee ne ate Reliance on the specific inclusion of one item as disclosing an intention to exclude similar items not mentioned expressly is a uséful device for ascertaining the intention of the maker of an instrument. It is not, however, a device which must be applied in all cases. In particular, it should not be applied where to do so would be to fly in the face of indications to the contrary. In Re Builders Labourers (Construction on Sita) Zt i Award 1962 (1965) 6 F.L.R. 498, the Commonwealth Industrial Court held that the prefabrication in a factory cf concrete slabs, which were afterwards used as parts of apartment buildings, fell within the ordinacy and natural meaning of the expression "construction work", an expression which was ot defined in the award there considered. That decision was given some considerable time before the making of the Award now under consideration. If it had been the intention of the maker of the Award to exclude prefahrication in a factory, it is much more likely that this would have been accomplished by an express exclusion, rather than an express inclusion of prefabricating in an open yard. Further, it is to be noted that the express inclusion is of prefabricating of building, and not prefabricating of a structure. It is hardly to be imagined that the maker of the award sought to exclude the prefabrication of structures which were nce buildings, if that prefabrication took place in an open yard. " wes wee aaa we eee oe os 1s. The inclusion of the prefabricating of a building in an open yard is only one of several inclusionary provisions in the definition. There is the earlier express inclusion of "the making, assembling or fixing of woodwork and fittings in connection therewith", i.e. im connmection with the erection of buildings or structures. The making of woodwork and fitcings may well take place away from the actual site on which a building or structure is being erected, anc may well take place in a factory. It is difficult to imagine that, with such an express inclusion, the subsequent inclusion of prefabrication of a building in an open yard is des gned te exclude the making of woodwork and fittings which does not occur in an open yard. Similarly the express inclusion of "the making, preparing, assembling and fixing of any matecial Sli necessitating the use of tradesmen''s tools ox machines" is an inclusion of work which may be performed in factories or + workshops. It is inconsis cr ent with an implied exclusion of such work ocher than in an open yard. The express exclusion, in the wocecds in brackets, or "work in stonsmaseny; yards Y ¥ and/or shops" in certain States is also inconsistent with an overall implied exclusion of all work other than on site or in open yards. What it makes clear is that, in those States not mentioned, work in stonemasonry shops is covared by th eae > «b award. For these reasons, I amof the view that th itt) inclusionary words in the definition of "construction work" are there by ceason of caution, rather than by reason of any intent to narrow what would otherwise be che ordinary and natural meaning of the words ""erection...of buildings or structures". ee in oe ere ee er hw) pee we ee ee ee eee i Oo There is another, and simpler, answer to the argument that the performance of Mc. Lucas's work indoors took it outside the Award. The answer is that what Mr. Lucas was doing was not "prefabricating", and would therefore not be excluded impliedly from the operation of the Award, even excluded. The relevant meaning of "prefabricate" is found in the Macquarie Dictionary as, "to manufacture (houses, etc.) in standardised parts or sections vready for rapid assembly and erection". The work of the respondent did not involve the making of parts or sections for assembly or o vection elsewhere, but involved manufacture of complete transportable homes, which could then be moved to their appropriate sites. Tt is f=] 1s a co pe 2 appropriately described as u cr "erecting" than as "prefabricating". Some discussion occurred in argument as to ths y effect of the definition of "Carpenter and Joiner" in cl. 8 of the Award. It was natural that the express refer w ne to oO "work in connection with prefabricated units" would raise the issue whether such work, taking place otherwise than in an open yard, would fall within the operavion of the Award. This definition is somewhat confusing because the Isttered paragraphs, which might have been thought in some cases to extend the meaning of the opening words, are prefaced with the phrase "without limiting the generality of the 17. foregoing". It must be remembered, however, that the definition of "Carpenter and Joiner" makes specific reference to "shop fitting work". Bearing this in mind, it is easier oo to understand che meanings of ome of che lettered 71) rn) cr @ a fe) pa! p ty ty ie} g co by iy paragraphs. In my view, they do not oper definition of "construction work". On behalf of the réspondent, it was argued that some provisions or the Award were appropriate, or more appropriate, for the pecftormance of work in whac might be oO Fh a called on-site construction. R rence was made to cl1.9.5, in en a under which a special allowance paid to compensate persons for, among other things, excess travelling <ime, cl. -S, under which sit2 allowances may be awarded, cl. 9.7, which provides for a loading to compensate for periods of unemployment between jobs, cl. 19.1, under which an induscry allowan a o el iy ny fh In Pu cr fe) Q Qa w ia fu er a ty Qa ts [ay i E iw tr He vr H ct) an 3} Y ry iy] 'i I fey n tT H Ny for living away from home, cl. 37 which provides for payment for presenting for work but not being required, and cl. 38 which provides for termination of employment on one day's notice. The presence of these clauses does show that the Award is apt to cover on-site construction work. Ie ais another step to say that the Award is limited to such work, a Newer ove wenn Py ee nee oe] 18. and is incapable of applying to work of the kind performed by Mr. Lucas. A similar argument was rejected in Re Builders Labourers (Construction On Site) Award (1965) 6 F.L.R. 498, at pp. 501-502. For these reasons, I am of the view that che work performed by Mr. Lucas for the respondent during the relevanc periods was work "in connection with the erection...or buildings of structures, including the making, assembling or fixing of woodwork and fittings in connection therewith" and was therefore "construction work" within the meaning oF Award. By virtue of cl. 6, the Award applied 'to the employment of Mr. Lucas. The respondent was obliged te pa; Mr. Lucas the wage rate and other allowances set out in ¢ Award. t is common ground that these were not paid in fu fw 1, The respondent was therefore in breach of the terms oF the Award. The question of penalty then arises. It was conceded on behalf of the applicant thac, although multiple breaches are alleged, they arose cut of a course of conduct, within the meaning of s-119(1A) of the Act and are thecefore to be treated as conssitucting a single breact & ¢ H oN ea c io) oO th $.119(1D)fa)(i), the maximum penalty which the Court can impose is $1,900. In th present cass, there ars many factors upon which the réspondent can rely in mitigation. Not the least of these is the difficulty of construction of paren tee ac eet eyes eee eps ee or o4 - ¢ 19. the Award. When the respondent began its business of manufacturing transportable homes, its directors made enquiries as to the appropriate award. These enquiries included the seeking of advice from an inspector appointed under the Act, not being the applicant. As a sasult of the dvice obtained, the directors believed that the work which they were engaging employees to do fell within an award relating to the vehicle industry. In order to ensure that the respondent was covered by that award, it joined the Victorian Employers Federation. Ice ais by virtue of that 2 vespondent became bound by the Award of iy membership that t which it is in breach. In other words, the respondent directors have endeavoured todo the right thing, but have unwittingly rendered themselves liable to paz theirs employses i re than they have paid. The applicant did not prass for a =] iS) savy penalty. In the circumstances, it is appropriate to impose only a nominal penalt;. The appropriates sum is $25.00. Because the applicant is a government servant enforcing the Award, the discretion under 5.120 of the Act ne penalty re should be exercised by ordering the payment of t into the Consolidated Revenue Fund. ' , a cl feu fo It is ts be noted that Mr. Lucas was no tered 0) ul relevant time a member of any organization regi pursuant to the Act. For that reason, no order pursuant to eH meee caper oe 20. $.119(3) of the Act, for the payment of any entitlements to hin, can be made. See Seymour ov. Stswell Timber Industries Pty. Ltd. (1985) 9 F.C.R. 241, especially at pp. 267-268 in the judgment of Gray J., and the cases there referred to. Appearances Mr. G. yadfield for the applicant instructed by the Australian Government Solicitor. Mr. C. Cunningham for the cespondent instructed by Simmons Wolfhagen. Hearing Date: 3rd Augus 1988. Hobart, Tasmania. or bp wo tor y rq a a pu He ot Q af be ( pages are a true and a ate account of the Reasons for bls Judgment of the Honoura. Justice Gray. ee cee pe ee ee sore wae eee See ET 'a