Saunders, P.R. v Park Homes Pty Ltd [1988] FCA 438

Federal Court of Australia|1988-07-01|Before: Gray J

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

Conciliation and Arbitration Act 1904, ss. 119, 120, 125(2),

Tourism (Caravan Parks) Determination 13973 (Tasmania) cl.2.

IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY INDUSTRIAL DIVISTON

PETER ROBERT SAUNDERS Applicant -and- PARK HOMES PTY. LTD. Respondent

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

(NOTE: Settlement and entry of orders is dealt with in 0.36

PETER ROBERT SAUNDERS Applicant -and- PARK HOMES PTY. ETD. Respondent

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

of the Conciliation and Arbitration Act 1904 ("the Acc"), for

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

respondent paid Mr. Lucas $307.68, $307.68 and $317.63. tf

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

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

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

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

"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

Provided that this award shall not apply to the following:

(b) the work of ship carpenters or ship joiners or of seagoing carpenters on articles

"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:

(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

(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;

(g) in Victoria, the erection of suspended ceilings including the

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

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

and/or shops and in cemcteries shall not be regarded as ecenstrucction work) and the prefabricating of a building in an open yard.

The respondent occupies premises, described as being at Warrane or Mornington in Tasmania. Tae premises

consist of two large sheds. Inside these sheds, the

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

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

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

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

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

customer only has purchased two sets of wheels, draw

light boards, because it wishes to he abla to tow a si

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

bad roads make it difficult or impossible to tow the homes cn

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

necessity to comply with normal building regulations. Some

manufactured during the relevant periods did not comply witn normal building regulations, so could not he located

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

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 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

manufacturers of Jayco preducts in Victoria, and bringing ¢ Tasmania a Jayco transportable home, the directors formed the

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

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

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

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

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

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

another federal award is not determinative of the construction of the award. It would be wrong to assume that

the Australian Conciliation and Arbitration Commission makes

awards in some monolithic and systematic fashion, so that all

awards fit neatly together like the pieces of a jigsaw puzzle. Because awards are made in settlement of industrial

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,

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" includes the phrase "ail work performed

under this award". his may lead to some circularity between

finition and cl. 6, unless the view is taken that that

phrase in the definition is intended to encompass any

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

"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,

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

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.

contrast, in R. v. Williams; Ex Parte Australian Build

(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)

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

definition of "building" in the Macquarie Dictionary,

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

within any ordinary meaning of the word "buildings" which

adopted. Even if this were not so, the transportable

takes them outside the ordinary meaning of this word. It

difficult to see why moveability shceuld exclude something

from being a "building" ora "structure". cams such as

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

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

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

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

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.

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

necessitating the use of tradesmen''s tools ox machines" is an inclusion of work which may be performed in factories or

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

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

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

vection elsewhere, but involved manufacture of complete transportable homes, which could then be moved to their

effect of the definition of "Carpenter and Joiner" in cl. 8

of the Award. It was natural that the express refer

"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

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

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

called on-site construction. R rence was made to cl1.9.5,

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

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,

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

1, The respondent was therefore in breach of the terms oF the

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

$.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

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

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

savy penalty. In the circumstances, it is appropriate to impose only a nominal penalt;. The appropriates sum is

enforcing the Award, the discretion under 5.120 of the Act

pursuant to the Act. For that reason, no order pursuant to

$.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.

Mr. G. yadfield for the applicant instructed by the

Mr. C. Cunningham for the cespondent instructed by Simmons

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

At a glance

Court

Decision date

Before

Source

Judgment (196 paragraphs)