100213430

BUILDING TRADES AWARD 1968 NO 31 OF 1966

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS UNION OF AUSTRALIA - WESTERN AUSTRALIAN BRANCH

APPLICANT

 -v-

 OVINGTON PTY LTD TRADING AS EZY VIEW WINDOWS

RESPONDENT

CORAM  WG TARR I.M.

DELIVERED THURSDAY, 11 APRIL 2002

FILE NO/S M 155 OF 2001

CITATION NO. 2002 WAIRC 06675

_______________________________________________________________________________

Result Claim dismissed

Representation

Claimant Ms E Peek (of Counsel)

Respondent Mr O Moon as Agent

_______________________________________________________________________________

Reasons for Decision

The Claimant in these proceedings has made application on behalf of John Merrick, an employee of the Respondent Company.

The Claimant alleges that the employee was employed as a Joiner-Assembler A as set out in clause 10 of the Building Trades Award 1968, No 31 of 1966 (the Award) and as defined in clause 6 of the Award and that the Respondent employer was bound by the Award.

It is claimed that the Respondent has breached the Award on divers occasions by failing to pay the employee the correct rate for overtime work contrary to clause 19(1) of the Award and failing to pay a tool allowance contrary to clause 10(4) of the Award.

The Respondent’s defence to these claims is simply that the employee was not engaged in a calling covered by the Award but was employed under the Metal Trades (General) Award 1966, No 13 of 1965 (the Metal Trades Award).

There is no doubt, on the evidence, that Mr Merrick was employed by the Respondent Company and that his primary duties were the construction or assembly of aluminium door and window frames.  As he said, his full time job was the fabrication of aluminium frames.

Mr Merrick gave evidence that he measured, cut, marked out and assembled the frames, usually by drilling and screwing the pieces together using silicon, at times, to seal the joins.

All frames are made from aluminium extrusions with a variety of profiles depending on the type of frame being constructed.

There is no mystery in what the employee did and although occasionally he was required to do some glazing on site or fixing on rare occasions or to make up packing crates for the delivery of frames up North, his primary duties were as mentioned.

The calling the Claimant submits the employee falls within is that of a Joiner-Assembler A.  Clause 6(4)(b) of the Award defines that calling as:

"Joiner - Assembler A" means a worker who in the manufacturing of any article is:

(i) wholly engaged in assembling prepared pieces of timber or other material (which is dressed, morticed, tenoned or otherwise prepared by machining) by cramping, nailing, screwing, gluing, or fastening in any way;

(ii) not responsible for the dimensions of the article other than by checking with gauges or other measuring instruments, but may be required to trim, dress and/or sand such prepared articles (excluding the fitting of joints) in accordance with instructions given by a tradesman joiner.

Clause 6(4)(a) defines Carpenter and Joiner as follows:

(a) "Carpenter and Joiner" means a worker engaged upon work ordinarily performed by a carpenter and joiner in any workshop establishment, yard or depot, or on site (including dams, bridges, jetties or wharves).

  Without limiting the generality of the foregoing, such work may include -

(i) The erection and/or fixing work in metal.

(ii) (aa) The marking out, lining, plumbing and levelling of prefabricated form work and supports thereto;

 (bb) the erection and dismantling of such form work but without preventing builders' labourers from being employed on such work.

(iii) the fixing of asbestos products, dry fixing of fibre plaster materials and the fixing of building panels, wall board and plastic material;

(iv) the erection of curtain walling;

(v) the setting out and laying of wood blocks or parquetry or wooden mosaic flooring; and

(vi) the erecting of pre-fabricated buildings or section of buildings constructed in wood, prepared in factories, yards or on site.

Although clause 6(4)(a) provides that “such work may include” working with other materials, Carpenter and Joiner means “a worker engaged upon work ordinarily performed by a carpenter and joiner”.  The definition does not go on to describe the work performed by a Carpenter and Joiner and the reason for that must be because it needs no further explanation.

The Shorter Oxford Dictionary describes a Carpenter as “an artificer in wood” and Carpentry as “the trade or art of cutting, working and joining timber into structures”.  In the same dictionary Joiner means “a craftsman who constructs things by joining pieces of wood; a worker in wood who does lighter and more ornamental work than that of a carpenter”.

It is argued on behalf of the Claimant that “other material” in the definition of Joiner-Assembler A includes metal and therefore aluminium.  The words dressed, morticed, tenoned or otherwise prepared by machining are words commonly used in relation to wood or wood substitutes.  Cramping, nailing, screwing and glueing are all commonly used processes in joinery.

It was suggested that the aluminium used by the employee was machined.  The process of producing the profiled aluminium was by extrusion.  Machining, as used in the definition, is a process applied to timber.  Aluminium may be polished or anodised (coloured) but in the form used is not machined.

The Scope clause of the Award provides that the Award applies to;

(1)        (a)    Employers in “Schedule B – Common Rule”:

 To all employees (including apprentices) employed in a calling or callings set out in Clause 10. – Wages, of this award in the industries carried on by the respondents set out in the schedule attached to this award, and

…

It is arguable that the Respondent is in the industry carried on by the Aluminium Pre-fabrication respondents set out in the schedule.  Joiner-Assembler A, as defined in clause 6 of the Award, is a classification covered by the Award.

Subclause (2)(c)(i) of the Scope clause provides that the Award shall not apply:

in respect to employers in “Schedule B – Common Rule”:

to an employee employed on work coming within the scope of any award or industrial agreement in force at the date of this award or to an employee whose conditions of employment are regulated by any such award or industrial agreement.

It is argued on behalf of the Respondent that the employee comes within the scope of the Metal Trades Award.  Clause 3.-Area and Scope of the Metal Trades Award is in the following terms:

This award relates to each industry mentioned in the Second Schedule to this award and applies to all employees employed in each such industry in any calling mentioned in Clause 31. - Wages and Supplementary Payments (including the appendix thereto) of Part I - General or Clause 10. - Wages of Part II - Construction Work of this award but does not apply within the area occupied and controlled by the United States Navy at and in the vicinity of North-West Cape in relation to Increment 1 of the construction of the Communications Centre.

The Second Schedule lists Aluminium Fabricators as one of the industries to which the Metal Trades Award relates and it is generally conceded that the Respondent Company falls within that industry.

Clause 31 classifies employees under a defined level specified in clause 5 of the Metal Trades Award and it is argued that Mr Merrick is employed in the calling Wage Group C12 Engineering/Production Employee Level III which provides:

WAGE GROUP: C 12

ENGINEERING/PRODUCTION EMPLOYEE LEVEL III

(Relativity to C 10 - 87.4%)

An Engineering/Production Employee Level III has completed eight modules towards an Engineering Production Certificate or equivalent training to enable the employee to perform work within the scope of this level.

At this level an employee performs work above and beyond the skills of an employee at C 13 and to the level of the employee's training.

(1) Is responsible for the quality of the employee's own work, subject to routine supervision;

(2) Works under routine supervision either individually or in a team environment;

(3) Exercises discretion within the employee's level of skills and training.

Indicative of the tasks which an employee at this level may perform are the following:

 operates flexibly between assembly stations;

 operates machinery and equipment which requires exercising skills and knowledge beyond that of an employee at Level C 13;

 non-trade engineering skills;

 basic tracing and sketching skills;

 receiving, despatching, distributing, sorting, checking, packing (other than repetitive packing in a standard container or containers in which such goods are ordinarily sold), documenting and recording of goods, materials and components;

 basic inventory control in the context of a production process;

 basic keyboard skills;

 advanced soldering techniques;

 boiler attendant;

 operation of mobile equipment including forklifts, handtrolleys, pallet trucks, overhead cranes and winch operation;

 ability to measure accurately;

 assists one or more tradespersons;

 welding which requires the exercise of knowledge and skills above Level C 13;

 assists in the provision of on the job training in conjunction with tradespersons and supervisor/trainers.

It must follow that when considering the work done within that Wage Group, or in fact, any Wage Group in the Metal Trades Award, that work generally involves metal of some type.

Appendix 1 of the Metal Trades Award has a classification structure as a reference point for task and craft based work titles prior to award restructuring and places “Assembler window frame making” into Wage Group C12.

Although Appendix 4 applies only to the specified Respondent Companies as listed in clause 4 as follows:

4. - RESPONDENT COMPANIES

The following companies are respondent to this Appendix:

Avanti Glass

Stegbar Pty Ltd

Aluminium Products

Jason Anodising

Dowell Aluminium Windows

Lidco Aluminium Windows

ASA Windows Pty Ltd

W.A. Glass and Aluminium

Mawco Pty Ltd

Jason Windows

Supreme Windows

it does have a Wage Group C12 under the heading of Architectural Aluminium Fabrication Employee Level III which sets out the work performed as being:

1. Is responsible for the quality of their own work subject to routine supervision;

2. Works under routine supervision either individually or in a team environment;

3. Exercises discretion within their level of skills and training;

4. Performs work in the Fabrication, Glazing, Assembly and Material Handling areas of the workshop within the scope of the indicative tasks listed below.

It must follow from the heading and the list of respondents that the work performed is with aluminium and Mr Merrick would fit into that calling.

The Claimant, in response to the Respondent’s submission that the Metal Trades Award applies, has asked the Court to consider the authorities that deal with the question of where two awards may apply.  It is my view, however, that the evidence does not raise that issue.

There is no mention of timber or wood in the definition of the work of Carpenter and Joiner in clause 6(4)(a) of the Award.  The definition merely reads “means a worker engaged upon work ordinarily performed by a carpenter and joiner”. It does so, in my view, because that is so well known and accepted, it goes without saying that carpenters and joiners primarily work with timber and wood.

Mr Merrick did not work with timber or wood.  The evidence before me is that he worked almost exclusively with aluminium.

In my view this is not a case where there is some doubt about which of two awards applies.  Any objective assessment of the evidence must come to the conclusion that there is no merit in the argument that the work performed by Mr Merrick places him within the calling of Joiner-Assembler A in the Award.  The evidence strongly supports a finding that the Metal Trades Award covers the work performed by Mr Merrick.

The claim will therefore be dismissed.

WG Tarr

Industrial Magistrate