100315808

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES THE WESTERN AUSTRALIAN BUILDERS' LABOURERS, PAINTERS & PLASTERERS UNION OF WORKERS

COMPLAINANT

 -v-

 SNOWDEN NOMINEES PTY LTD T/A SNOWDEN PLANT HIRE

DEFENDANT

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 28 AUGUST 2002

COMPLAINT NO CP 259 OF 2000

CITATION NO. 2003 WAIRC 07852

_______________________________________________________________________________

Representation

Complainant Ms L Peak (of Counsel) appeared on behalf of the Complainant

Defendant Mr O Moon of Oliver Moon & Associates appeared as agent on behalf of the Defendant

_______________________________________________________________________________

Reasons for Decision

The Complaint

1         During the period 20 February 1998 to 16 July 1999, Jeremy Allard was an employee of Snowden Nominees Pty Ltd trading as Snowden Plant Hire.  It is alleged that the Defendant employed Mr Allard as a drainer being a calling included within clause 8(2)(b)(i) of the Building Trades (Construction) Award 1987 (the Award).  It is further alleged that Mr Allard was engaged on construction work as defined within clause 7(3) of the Award.  The Complainant maintains that at all material times the Defendant was operating within the building and construction industry and was therefore bound by the Award.  The Complainant alleges that the Defendant has committed 419 breaches of the Award as set out in the complaint.  It says that its member was underpaid a total of $23,000.01.

The Defence

2         The Defendant admits that Mr Allard was its employee during the material period.  It however denies that he was employed as a drainer or in any other calling contained within the Award.  The Defendant says that in any event it was not engaged in work that was substantially or wholly covered by the scope and terms of the Award.  It therefore maintains that the claims relating to the underpayment of wages and other alleged breaches are without basis in fact or in law.

Issues

3         The pivotal issues in this matter that require determination are:

1. Whether Mr Allard worked in the calling of drainer as provided in clause 8 of the Award.
2. Whether Mr Allard was engaged on construction work as defined in clause 7(3) of the Award.
3. Whether the Defendant was, at all material times, operating in the building construction industry.

Evidence

4         The Complainant called three witnesses.  They were Mr Campbell McCullough, an organiser with The Construction, Forestry, Mining and Energy Union of Workers, Mr Jeremy Allard a member of the complainant with respect to whom this complaint relates and Mr Michael Dunstan a qualified drainer.  The Defendant called its director Mr Robert Snowden.  It also called Mr Patrick Marsh a drainer who at the material time worked for the Defendant.  Mr Marsh has also worked with Mr Allard.

Campbell McCullough

5         Mr McCullough testified that he has been involved in the building construction industry for most of his working life.  He has performed the functions of a concreter and that of a brickie’s labourer.  He worked in those callings for about fourteen or fifteen years.  He is familiar with the Award as a result of his experience within the industry.  He is also familiar with the work carried out by other workers with whom he had regularly come into contact with including drainers.

6         Mr McCullough testified that a drainer’s work on construction sites consisted of digging trenches and laying pipes, whether they are sewerage or stormwater.  They worked on buildings and associated car parks usually linking into plumbing lines outside the site.  He said that a fence line usually delineates the boundary of a construction site although that is not always the case.

7         By reference to exhibit 9, which inter alia contained a list of the Defendant’s clients during the material period, Mr McCullough was able to identify certain firms as being those that engaged in the building construction industry.  He particularly identified Brown and Joy Industries, Esslemont and Charter Plumbing as being such firms.

8         Mr McCullough also produced calendars showing the public holidays and rostered days off for the relevant period.

9         When cross-examined, Mr McCullough was asked whether he had ever seen Mr Allard on the job.  He replied that he had only seen him once working on the BMW Auto Classic site shovelling mud.  He could not say whether on that occasion Mr Allard was performing the work of a drainer

10     Mr McCullough explained under cross-examination that drainers did not require formal training and that they picked up their skills by experience.

11     He was also cross-examined concerning the issue of whether work carried out on car parks fell within the building construction industry.  In response Mr McCullough said that a car park, depending on its location, could be considered to be either within the building site or, alternatively, outside the same.

12     Finally Mr McCullough could not say under cross-examination whether Brown and Joy Industries, Esslemont and Charter Plumbing performed civil as well as building construction work.

Michael Dunstan

13     Mr Dunstan testified that he is a drainer.  He has been working in such capacity for seven years.  Prior to that he had no experience in the calling within which he now works.

14     He said that the functions of a drainer include:

• Location of existing services
• Excavation of trenches
• Working out of levels
• Preparation of beds
• Laying of drains or pipes
• Back filling

15     He said that digging involved in the job was achieved, in the main, by the use of an excavator, loader or bobcat.  The types of piping installed consisted of various types of materials, including PVC, concrete and “blue brute”.  In the case of concrete and blue brute, the pipes were joined by the use of rubber rings while PVC pipes were glued.  Mr Dunstan said that his work also included compacting and putting right any dislocation caused by the laying of pipes.

16     Mr Dunstan testified that he has obtained a drainer’s licence.  He achieved his qualification about one and a half years ago.  Prior to that no licence was actually required with the drainer picking up his skills on the job.

17     He told the Court that he has worked on new sites and on sites where there were existing buildings, such as when he was involved in extensions to the Belmont Forum and Garden City Shopping Centres.

18     When cross-examined, Mr Dunstan said that he has never seen Mr Allard work. 

19     He also informed the Court under cross-examination that he achieved his qualification following examination.  That entailed an on-site observation of him at work together with the sitting and passing of a three-hour examination.

20     Under cross-examination he explained that his duties included arranging for the scanning of existing services.  He would check levels on plans and then engage in the process that led to the laying of pipes.  He actually operated excavators and bobcats in backfilling.

21     When re-examined, Mr Dunstan confirmed that he was initially employed as a labourer.  He became a drainer after a year on the job working with a drainer.

Jeremy Allard

22     Mr Allard testified that he responded to an advertisement in a newspaper placed by the Defendant seeking a labourer with drainage and pipe laying experience.  Mr Allard said that he initially spoke to Mr Snowden’s partner, namely Mr Anthony Williams.  He was asked about his experience and was invited to attend the site the next day.

23     Mr Allard said that his first job for the Defendant was at a factory being built at Kewdale.  The Defendant was doing the drainage and car park for that factory.  Mr Snowden was not present on that job when he commenced.  The next day Mr Snowden spoke to Mr Allard and told him he would be paid a flat rate of $10.00 per hour, which would increase as Mr Allard got better.  Mr Allard testified that his initial tasks at Kewdale included compacting sand, laying pipe, putting in gullies and grouting up manholes.  His main task, however, was that of compacting.  He was on that Kewdale job intermittently over a few months.

24     Mr Allard was then taken to exhibit 9, being a schedule of dates on which certain jobs were carried out, the location of the particular jobs and the name of the client for whom the job was done by the Defendant.  The document is one clearly created by the Defendant for its purposes and discovered.  It was with reference to that document that Mr Allard and indeed, Mr Snowden, gave their evidence.  The schedule was utilised as a useful guide for the giving of evidence in respect to work carried out by Mr Allard.

25     Mr Allard, with reference to exhibit 9, testified that he did not work on the jobs outlined therein for the periods set out.  His work on those respective jobs was generally intermittent.  He often left jobs part way through and returned to them later.  He conceded however that in some instances he did remain continuously on the job for significant periods of up to four months.  Some jobs lasted for periods of between one and two months.  Other jobs lasted just for weeks.  With respect to the Kenwick Squash Courts he said that he only ever attended that job for one night.  Although agreeing that the time frames set out within the schedule (exhibit 9) are generally accurate, he nevertheless did take issue with some aspects.  He wanted to impress that there was considerable movement from site to site and there was not necessarily a constant attendance at any particular site.

26     By reference to exhibit 9, Mr Allard described the work that he carried out at the various sites.  Firstly he testified about his work on the car park of Midland Retravision.  He said in that regard that he laid a couple of pipes with Anthony, that he compacted the pad and did a bit of surveying.  He said that he “did the ditch” on the job and “covered in the trench”.  He assisted in slinging the pipes into the trench.  However his main task on site was that of compacting. 

27     Mr Allard next testified about his work at the Clarkson High School.  He said that he was engaged in putting in the sewers, doing some stormwater work and levelling sand for pavers. 

28     He then moved on to describe what he did at the Warnbro High School.  He said that he worked almost exclusively on stormwater and sewerage at that place.  Much of the work carried out at that place was the same as the work he had carried out at the Clarkson High School. 

29     With respect to the Kenwick Squash Courts, Mr Allard explained that all he did was to help out by putting “geocloth” around the gullies and compacting the same. 

30     He was then taken to describe what he did at the Lansdale Primary School.  He said that on that job he was involved in laying the water main for the school.  He was also involved in the laying of stormwater “downpipes”.  He compacted the trenches following the backfill operations. 

31     Mr Allard next described what he did at the Ellenbrook Primary School.  He said that he worked on the sewer and stormwater at that place.  He did not go into detail as to what he actually did. 

32     The Prosser Toyota site was next addressed.  In respect of that job he said that he laid stormwater pipes in preparation of the car park being laid. 

33     Mr Allard moved on to outline what he did at the BMW Auto Classic site.  He said his main function at that site was cleaning up clay that had fallen to the road surface.  Eventually he did do some drainage work on that site.  He conceded however that the amount of drainage work carried out at that site was very little. 

34     He was then taken to describe what he did at the Churchlands High School site.  He said that the work that he carried out with respect to the extensions at that school was the same as the work he had carried out at other schools.

35     The final significant issue addressed in chief was Mr Allard’s use of the Defendant’s fuel card.  Such evidence goes to the issue of the alleged breach of the fares and travel clauses of the Award.  In that regard he testified that he mainly used the employer supplied fuel card to purchase fuel for the Defendant’s business purposes.

36     Mr Allard testified that he did not receive annual leave or payment in lieu thereof.  He was not paid sick leave or for public holidays.  He did not receive any rostered days off (RDO’s) unless working on a union site.  He was not paid long service leave or redundancy payments.

37     When cross-examined, Mr Allard said that, although he had some experience before starting with the Defendant he nevertheless was on “a bit of a learning curve” early on.  In fact he relied on Anthony Williams to teach him what to do.  He conceded that whilst he worked for his previous employer namely Triad Contractors his duties consisted of those of an offsider.  He also conceded that whilst working for the Defendant he usually worked alongside a skilled and experienced drainer who generally operated the backhoe.  Mr Allard assisted him in carrying out drainage work.

38     Mr Allard said that on some occasions he was “directly responsible” for the laying of sewerage and drainage pipes.  He said one such instance was when he worked at Lansdale Primary School.  He said that he engaged in putting in soak wells and manholes and ensuring that the levels were correct.  He was also involved in the process of locating existing services.  Mr Allard conceded however that he had never achieved recognition by his employer that he was a drainer.

39     Mr Allard was cross-examined with respect to the various jobs set out in exhibit 9.  In relation to the Kewdale factory job he conceded that the drainage work he carried out thereat related to road works.  In any event the percentage of his drainage work on that job was in the order of fifteen percent. 

40     Mr Allard was next taken to consider the Midland Retravision job.  On that job he worked on two gullies and levelled and compacted the car park.  He said ten percent of that work related to drainage. 

41     With respect to the Clarkson High School, Mr Allard said that he was involved in laying the sewer, doing the stormwater and levelling sand for pavers.  He said there was a fair bit of drainage work involved in that job.  He estimated it to comprise about forty percent of the work. 

42     Turning to the Warnbro High School job, Mr Allard said that his involvement included assisting a plumber laying sewer and doing the drainage gutters and down pipes. He also put in a lot of soak wells on that job.  He estimated that forty percent of his work at that place related to drainage. 

43     Mr Allard was then taken to describe what he did at the Lansdale Primary School.  He told the Court that he put in manholes, soak wells and that he did a sewer.  He also performed compacting. 

44     At Ellenbrook Primary School he was involved in laying the sewer.  He thereafter compacted trenches. 

45     Mr Allard was again taken to consider the Clarkson High School work.  He told the Court that about one third of his work on site on his second stint there comprised drainage work. 

46     Following the structure set out in exhibit 9, Mr Allard was next taken to describe what he did during his second stint at the Ellenbrook Primary School.  On that job he did some sewage work and put in a few soak wells.  He also connected pipes into the soak wells.  He said all the work at that place consisted of drainage. 

47     Mr Allard was then asked to describe the work he did on his third stint at the Clarkson High School.  He told the Court that about one third of his work at that place at that time consisted of drainage. 

48     Next considered was the Prosser Toyota job.  Only ten percent of that job involved drainage.  Most of the job comprised of rolling limestone for the car park. 

49     When taken to comment about the footpath at Cannington, Mr Allard conceded that there was no drainage work associated with that job. 

50     As to the Mosman Park job that followed, only five percent of that work consisted of drainage work. 

51     Moving to the BMW Auto Classic site, Mr Allard confirmed that his duties were to clean the road.  He was also engaged to assist a plumber from Charter Plumbing do his work.  He said that about twenty percent of his work there comprised drainage work. 

52     He was next taken to describe what he did at Northbridge.  He said that none of his work there related to drainage. 

53     Finally Mr Allard was cross-examined as to the work he did at Churchlands.  He said that there was a “lot of drainage on that one”.  About half his work on that site involved drainage.

54     Mr Allard was also cross-examined about the use of the fuel card and on how he got to and from work.  The cross-examination of him in that regard was uneventful.

55     When re-examined Mr Allard explained that the percentages expressed during cross-examination represented the percentage of drainage work carried out by the Defendant on the job.  It did not represent the percentage of work he did in respect to drainage on those jobs.  By way of example, he said that fifty percent of the Churchlands job comprised drainage work and that sixty percent of his time at that job was spent doing drainage work.  In revisiting his percentage estimates, Mr Allard said that at the Clarkson High School he spent about sixty percent of his time doing drainage work.  At the Warnbro High School, seventy percent of his work was on drainage.  If one included being a surveyor’s offsider in setting levels, then his drainage work would be close to one hundred percent.  At Lansdale, ninety percent of his work consisted of drainage.

Patrick Marsh

56     Patrick Marsh the first witness called by the Defendant has worked as a drainer for most of his working life.  He currently is a plant operator.  The Defendant formerly employed him.  He worked with Mr Allard and is familiar with the work that Mr Allard performed.

57     Mr Marsh testified that whilst he operated a backhoe digging up the drains, Mr Allard would work around him as the drainer helping him to lay his drains and do the normal labouring work such as mixing the cement and the like. He cemented up pipes for the sumps, ran around helping everybody, shovelling and filling.

58     Mr Marsh testified that the work of a drainer entails understanding and setting appropriate invert levels from manhole to manhole.  He actually lays the drains.  He is fully responsible for the whole job.  To do that, the drainer must be able to read the plans and understand the falls of the drain.

59     Mr Marsh said that Mr Allard was involved in labouring.  He never saw him physically in charge of laying drains.  His impression was that Mr Allard was a labourer not a drainer.

60     When cross-examined, Mr Marsh testified that the job of a drainer is a specialised job.  A labourer can give a drainer a hand to do the job but the drainer needs the experience to do the job.  He said that although a lot of the time drainers worked on their own, they would nevertheless usually have an offsider. Mr Marsh testified that in order to be a drainer, the person doing the job had to be able work out the levels.  He said that if it was the case that Mr Allard was “doing the levels” he would have to be considered to be a drainer.

61     Mr Marsh conceded that he only worked with Mr Allard on an intermittent basis.  He was unaware of whether or not Mr Allard had in fact worked alone.  He testified that he worked with him on the Kewdale job.  After that he only worked with him on and off.

62     When re-examined, Mr Marsh said he never saw Mr Allard operate the laser light level.  He saw Mr Allard use the theodolite in circumstances in which certain levels had already been worked out.  In other words, that Mr Allard did not work out the levels but rather attended to simple tasks of applying levels already calculated by someone else.  Mr Marsh said the drainer is the person who is “in charge of that job”.

Robert Snowden

63     Robert Snowden gave evidence that at the material time he was a director of the Defendant.  He no longer operates the Defendant’s business.  He currently works as a line haul truck driver.

64     Mr Snowden testified that whilst it operated, the Defendant engaged mainly in civil contracting, working on roads, the construction of car parks, footpaths and the like.  He said that the drainage work was a minimal component of the work.

65     He told the Court that Mr Allard was employed as a labourer.  His duties consisted mainly of compacting and driving the roller.  He described Mr Allard to be a “gopher”.  A “gopher” he said is a worker who works alongside someone.  He assists in doing things like running back to the shed to get a spirit level or something else that might be needed by a drainer or other tradesman.

66     Mr Snowden was taken to testify about Mr Allard’s work on the jobs set out in exhibit 9.  In relation to the Kewdale job, he said that Mr Allard carried out only basic labouring tasks such as shovelling or compacting.  Mr Allard’s involvement with drainage at that site consisted of probably less than ten percent of his work. 

67     Mr Snowden was asked to consider Mr Allard’s work at the Retravision Midland car park.  He said three soak wells were put in at that place.  Although Mr Allard was involved in the work there, he was not the responsible drainer.  Either Tony Williams or Trevor McLaughlin would have been the drainer on that job.  Mr Snowden said that most of the work that Mr Allard did on that site was labouring work on the car park.  His work on drainage was five percent of that. 

68     Moving to consider the Clarkson High School job, Mr Snowden said that the Defendant prepared several site pads for classrooms.  It also built a range of tennis and basketball courts.  Also constructed were two large car parks and an access road.  He said that Charter Plumbing did the drainage work on that site.  In any event that constituted a very small portion of the total works.  Mr Snowden said that with respect to that job that Mr Allard would not have been involved in setting up and laying pipes.  He would, however, have been involved in backfilling and compacting.  Pat Marsh, Tony Williams, Mark Burgle and Mr Snowden himself did the drainage work on site.  According to Mr Snowden, Mr Allard’s involvement in drainage works on that site comprised less than ten percent of his total work. 

69     The Kenwick Squash Courts job was next referred to.  Mr Snowden testified that Mr Allard worked there for almost two weeks.  Having said that, he accepted that Mr Allard might have been required to leave that place from time to time in order to carry out work on other jobs.  He described the amount of drainage work that Mr Allard was involved in on that job to be very little, possibly up to five percent. 

70     He was next taken to address the Lansdale Primary School project.  That job was mainly drainage work consisting of the laying of a large water main around the outside of the perimeter of the new school.  He said that Mr Allard’s function was to labour for the drainer, namely Tony Williams. 

71     With respect to Ellenbrook Primary School, that too consisted mainly of drainage.  According to Mr Snowden, Mr Allard only performed basic labouring tasks offsiding with the drainer. 

72     Mr Snowden was next asked to comment on the second stint at the Clarkson High School.  In that regard he said that there was no drainage conducted on the second occasion.  All the drainage had been done at the beginning of the contract.  He said that there was no chance that Mr Allard did thirty percent of drainage work on that job. 

73     Moving to consider the second stint at Ellenbrook Primary School, Mr Snowden acknowledged that most of the work carried out on that occasion related to drainage.  He testified, however, that Mr Allard would have been working with Mark Burgle who was the drainer on the job. 

74     Mr Snowden next testified about the Defendant’s third stint at the Clarkson High School.  He described that work to be a clean up operation, preparing for the application of hot mix.  He said there was no drainage work associated with that job. 

75     Next addressed was the Prosser Toyota job.  That comprised of the construction of two car parks.  He estimated that Mr Allard’s work associated with drainage on that site as being possibly between five and ten percent.  Again on that job as with others he would have been working under a drainer.  The drainers on that job were Mr Snowden himself, Mark Burgle, Brett Ball and Pat Marsh. 

76     Mr Snowden moved to consider the Bayswater sewer extension to the new weir course.  That work was entirely drainage and Mr Allard worked as a labourer only on that job.  Tony Williams was the drainer and Mr Allard was the “gopher”.

77     Commenting upon the Cannington footpath job he said there was no drainage work associated with that job.  There was, however, a small amount of drainage work performed on the Mosman Park laneway job.  The work that Mr Allard did associated with drainage on that job was in the order of ten percent.

78     In relation to the BMW Auto Classic site, Mr Snowden said that the job consisted of a big excavation. Three thousand five hundred cubic metres of clay was excavated and dumped.  Mr Allard was not involved in any drainage work on that job.  Charter Plumbing did all of the drainage work.  Mr Allard was hired out to Charter Plumbing as a labourer, not a drainer.  Mr Snowden estimates that Mr Allard was involvement with drainage work on that job was in the order of only five percent of the total amount of work.

79     As to the footpath at Northbridge, Mr Snowden said there was no drainage works associated with that.

80     Finally, in relation to the Churchlands High School job he said that the work entailed preparation of areas for brick paving.  There was no drainage work conducted on that site.

81     Generally, in reference to exhibit 9, Mr Snowden said that about eighty percent of the work carried out and referred to within that schedule was civil work consisting of earth works including associated drainage, construction of car parks and preparation of surfaces.  There was also some associated civil stormwater work.

82     He said some of the places at which the Defendant carried out its work were fenced whilst others were not.  It really depended upon the circumstances of the site and the job.

83     Mr Snowden also testified as to the use of fuel cards supplied by the Defendant.  He said in that regard that Mr Allard, at various times, had the company vehicle, which he utilised to drive himself to and from work.  The Defendant’s fuel card was utilised by Mr Allard for the purpose of fuelling the vehicle to get to and from work.

84     Mr Snowden conceded under cross-examination that Mr Allard was always paid a flat hourly rate and that he was not paid allowances.  He was, however, paid superannuation.  Payment was also made with respect to long service leave.  He was not however paid accrued annual leave upon termination.  That was because Mr Allard “ran away”.  On Mr Snowden’s evidence Mr Allard abandoned his job.  He said that Mr Allard was not paid redundancy payments because he had not been made redundant.  Mr Snowden conceded that he did not pay Mr Allard accumulated sick leave.  If Mr Allard did not work on public holidays he was not paid.  Further, RDOs were given only on “union sites”. Mr Allard was not paid penalty rates for working overtime or working on weekends.

85     With respect to the issue of getting to and from work, Mr Snowden maintained that Mr Allard was always catered for either one way or the other by either being picked up and dropped off or, alternatively, by using a vehicle and fuel supplied by his employer.

86     When cross-examined about the advertisement placed in the West Australian newspaper inviting applications for Mr Allard’s job Mr Snowden said that his recollection of it was that it sought a labourer with his own transport.  He attempted to obtain a copy of the advertisement prior to the hearing but was unable to do so.

87     It was put to Mr Snowden that a drainer is a labourer.  He rejected that contention.  He said, “A drainer is a labourer but it doesn’t mean a labourer is a drainer”.  Mr Snowden emphasised that a drainer undertakes the project on behalf of his or her employer and is directly responsible for that work.

88     Mr Snowden said that he never left Mr Allard alone on a job in charge of laying, setting out or organising levels due to the blunders that he was prone to making, even when under supervision.  He said he would not have done that to himself, his company or his clients.  Mr Snowden maintained that Mr Allard’s involvement amounted to no more than giving someone a hand.  In that regard he said,

“He would never have been given a set of plans and given a theodolite and given a pipe laser and given a dumpy level and given a labourer and a machine and a machine operator and asked to execute that drain”.

89     Mr Snowden’s view of Mr Allard’s function is well reflected at page 96 of the transcript when, under cross-examination he said:

MS PEAK:  But he did, on a number of occasions, do the levelling work, didn’t he? ---What he’s saying what he done levelling work is somebody set up a laser for him.  They gave him a staff and on the staff it’s got a thing that bleeps.  When the bottom of the staff is at the right level, he picks up the transceiver and it bleeps.  Someone would’ve set it up for him and he would stand there and go, “bleep, bleep, bleep, bleep, bleep, bleep, bleep, bleep”, which isn’t very skilful at all.

You’re saying he would have done that?---Yeah.

You don’t know whether he did any greater levelling than that or not, do you?---Yeah, I do.

How do you know that?---Because he worked for me.

90     Mr Snowden was at pains to point out that Mr Allard could not be a drainer because he did not work off plans.  Had he done so he would have had a field book recording pertinent calculations and details.  He had no such field book.  Nor did he sign off on “as constructed drawings” for the Water Authority, which was part and parcel of the job of a drainer.

91     At page 99 of the transcript, Mr Snowden, still under cross-examination, said:

MS PEAK:  --and did the work of a drainer?---Where’s his evidence?  Did he bring any of his plans in?  Did he bring his--his field book where he would’ve recorded all the--

MS PEAK:  Do you think a drainer needs to bring plant to be a drainer?---Well, he’s got to be able to read plans.  He’d be issued with a set of plans.

Oh, sorry, you said, “plans”.  You do.  Sorry, I just said, “plant”?---No.  He would also have a field book—

Wouldn’t you, as the boss, be issued with the plans?  Didn’t you actually contract to do the drainage work?---Yeah, but I’d then receive maybe up to four or five sets of plans, one of which stays at home in my office, two or three cites--sets do down to each cite (sic) so that they’re in the shed ready to go and one stays clean in the shed and is recorded as an “as constructed drawing”.  Did--did Jeremy tell you how many “as constructed drawings” he signed off for the Water Authority which would be the job of a drainer?

That’s what you say that the job of a drainer is?---That is part of the job.  The guy who lays the drains has to record all levels, inverts, degrees, positions from buildings and then record them back onto a plan and then they have to be signed off and issued back to the Water Authority to be put on record for--if someone goes there in 10 or 15 years time and need to find a drain, they can then go to the Water Authority down at Tonkin Park--Tonkin House.  They get issued the plans.  Sometimes it’ll take a couple of days to find them.  They go there.  They can get photocopies, dah, dah, dah.  I’ll give it to you that Jeremy Allard never ever signed off one set of plans.

92     It was Mr Snowden’s evidence that Mr Allard never signed off on any plans submitted to the Water Authority or otherwise held any responsibility to his employer in that regard.

93     Mr Snowden explained that civil works is that carried out on roads, car parks and drain works.  He said that stormwater work carried out within car parks is considered to be civil stormwater.  Mr Snowden also explained that most of the work carried out by the Defendant was unconnected with building construction.  Some of the firms that the Defendant worked for were for firms with a civil construction arm to their business.  Other work was carried out directly for the owners.

Assessment of Witnesses

94     The evidence of Mr McCullough, Mr Dunstan and Mr Marsh was in each instance straightforward and acceptable.  Mr Marsh’s evidence was of significance because he actually worked with Mr Allard.  The evidence that he gave relating to what he saw Mr Allard do is obviously very important.  The evidence of Mr Allard generally stands in conflict with that of Mr Snowden.  The conflict particularly concerns the nature of the work carried out by the Defendant over the relevant period.  There is also conflict concerning the level of Mr Allard’s responsibility with respect to the same.

95     It suffices to say at this time that I far preferred the evidence of Mr Snowden to that of Mr Allard.  Mr Snowden impressed in his evidence as having a clear recall of the particular jobs and the nature of duties performed on each job.  Mr Allard, on the other hand, gave evidence, which was, in my view, confused.  For example his estimates as to how much work he carried out in relation to drainage varied significantly.  Indeed he wavered significantly in that regard.  In my view, the answers he gave under cross-examination as to the amount of work he did on drainage, was reflective of the true position.  His attempt to revise his earlier estimates during the course of re-examination was unimpressive.  Further, his description of the work he carried out at the Clarkson and Ellenbrook schools, for example, was quite nebulous.  He appears to have merged the work in one stint with the work carried out in another.  Mr Snowden, on the other hand, had no such difficulty.  He was able to recite with a degree of particularity exactly what was done, where it was done, when it was done and who did it.

Findings

96     The burden of proof falls upon the Complainant to prove its case on the balance of probabilities.

97     There is no dispute that the Defendant employed Mr Allard.  The question is whether he was engaged in work, which is substantially or wholly covered by the scope and terms of the Award.

98     Clause 3 of the Award, so far as is relevant, provides:

3. - SCOPE

This award shall apply:

(1) to all employees usually employed on or employed as casual employees on construction work as defined in Clause 7. - Definitions of this award in any of the callings set out in Clause 8. - Rates of Pay of this award and who are employed in the building construction industry; and

(2) …

(3) …

(4) to all employers employing those employees and/or apprentices; and

(5) …

99     The three elements, which need to be established for the Award to apply to Mr Allard’s employment, are:

1. That he was engaged on construction work;
2. That he was engaged in a calling set out in the Award; and
3. That he through his employer was engaged in the building construction industry.

100  Construction work is defined in clause 7(3) of the Award as follows:

"Construction Work" means -

 (a) all work "on-site" in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or other structures of any kind whatsoever; or

 (b) all work which the union and the employer concerned agree is construction work but only if the agreement is approved by the Board of Reference; or

 (c) all work which, in default of an agreement as aforesaid, is declared by the Board of Reference to be construction work.

101  The Complainant contends that the work carried out by Mr Allard was construction work on-site in connection with the erection, repair, renovation, maintenance or ornamentation of buildings or other structures.  I disagree.  In my view the work carried out by Mr Allard was not of the type falling within such definition.  The evidence dictates that most of the work carried out by Mr Allard for the Defendant was totally disassociated with construction work, as defined.  Such examples include:

• Kewdale road works

• Sewer extensions in Bayswater

• Car park for Prosser Toyota

• Footpath at Cannington

• Laneway at Mosman Park

• Footpath at Roe Street

102  Even when work was carried out at the schools, that part of the work going to the construction of car parks, tennis courts and basketball courts was quite discrete in nature.  It simply had no nexus to construction work as defined in the Award.  The connection that Ms Peak sought to make during submissions is, in my view, entirely tenuous.  It appears to me that the work carried out by the Defendant, and in turn by Mr Allard, was substantially civil construction.  I accept Mr Snowden’s evidence in that regard.  In my view the evidence overwhelmingly dictates that that is so.  The fact that the Defendant may have performed work for entities, which from time to time carried out building construction work, is not, of itself, indicative of the nature of work carried out by the Defendant.  Indeed there is no reason to reject Mr Snowden’s contention, for example, that Esslemont engages itself in civil construction work as well as building construction work.  The fact that there is some fleeting spatial connection with a building site does not change the nature of the work performed.  Although it is undeniable that in some circumstances the Defendant, in preparing pads and doing drainage work at some schools, did engage in construction work, it nevertheless remains the case, on Mr Snowden’s evidence, which I accept, that such work constituted only a very small part of his company’s business.  Generally speaking, the mainstay of the Defendant’s work was carried out on car parks, roads, footpaths, tennis and basketball courts and the like.  Such work was civil construction work.  It was discrete work and did not form part of any building construction work.  It could not be considered to be work carried out in connection with the erection, repair, renovation, maintenance or ornamentation of any building.  Indeed it had nothing to do with the buildings per se be they existing or under construction.  As stated previously any connection between the two is fleeting.  Attempts made to link them are tenuous.  The work carried out by the Defendant, was not usually carried out within defined building construction sites as delineated by fences or otherwise. 

103  I am cognisant of what the Full Bench of the Western Australian Industrial Relations Commission said in Western Australian Builders Labourers, Painters and Plasterers Union of Workers v MM Clark and AJ Clark trading as Mike Clark Contracting 75 WAIG 1820 at 1821.  I accept that the words “in connection with” found within the definition of “construction work” within the Award are very wide indeed.  Notwithstanding that, the evidence before me dictates that the Defendant’s work was substantially unconnected with building construction and was in fact predominantly civil construction.

104  Even if I am wrong in that view, it remains the case that for the Complainant to succeed, its member Mr Allard must be found to have worked for the Defendant in the calling of drainer as referred to in clause 8 of the Award.

105  Drainer is defined in clause 7(1)(g) of the Award under the general heading of “Builders’ Labouring” as follows:

“Drainer means a builder's labourer directly responsible to his/her employer for the correct and proper laying of sewerage and drainage pipes”.

106  The definition of builders’ labourers set out in clause 7(1)(a)(iii) of the Award includes, inter alia the following:

“…in the setting and jointing of pipes for sewerage or storm water drainage,  …in clearing, excavating or levelling off sites for buildings, or in road construction work and in connection with approaches to buildings inside the building line …”

107  It is obvious from the definitions referred to that a drainer is a builder’s labourer.  However, a builder’s labourer is not necessarily a drainer.  The distinction lies in the fact that a drainer is directly responsible to his employer for the correct and proper laying of sewage and drainage pipes.  Responsibility is the demarking factor.

108  The evidence given by each of Mr Allard, Mr Marsh and Mr Snowden for that matter was suggestive of the fact that Mr Allard was involved in the setting and jointing of pipes for sewerage or stormwater drainage.  It is also possible to find that he worked on levelling sites and engaged in road construction.  Such findings, subject to the other elements to be proved, might bring Mr Allard within the definition of a builder’s labourer.  However in order for the Complainant to prove that Mr Allard was a drainer it must establish that Mr Allard was directly responsible to the Defendant for the correct and proper laying of pipes.

109  Mr Allard contends that he performed the tasks of a drainer in locating existing services, excavating trenches, working out levels, preparing beds, laying drains or pipes and backfilling.  There can be no doubt that he was involved in all such work.  However, the question to be resolved is one of whether his involvement was that of being an offsider assisting in those tasks or whether he conducted those tasks in his own right as a drainer responsible to his employer in that regard.

110  Mr Allard’s evidence is generally at odds with that of Mr Snowden going to the issue of the exact nature of his involvement and responsibility.  In that regard Mr Allard says that he was left to work alone and responsible for the drainage works that he carried out.  I reject his evidence.  The evidence of Mr Marsh and, and more particularly, that of Mr Snowden contra-indicate that.  Mr Snowden’s evidence was that Mr Allard was no more than a gopher.  Gopher is not used in a pejorative sense but rather it is descriptive of the fact that his duties were no more than that of being an offsider.

111  I accept Mr Snowden’s evidence that, given the lack of competency on the part of Mr Allard, he would never have entrusted Mr Allard in working alone in carrying out his work.  I accept Mr Snowden’s evidence in chief and under cross-examination that the level of responsibility to the employer is reflected in the ability to make calculations as to levels and to sign off on such calculations.  There is no acceptable evidence before me to establish that that ever occurred in Mr Allard’s case.

112  The fact that Mr Allard worked alongside other drainers and assisted them does not make him a drainer.  To become a drainer requires a certain level of recognition by an employer that the person is capable of fulfilling the necessary tasks.  The recognition is to be found in the handing down of responsibility in respect to certain works.  That never happened to Mr Allard.  He was never recognised by his employer as a drainer.  He was never responsible for the works.  He was no more than a gopher, an offsider, and a labourer assisting a drainer.

Conclusion

113  The Complainant has failed to prove that Mr Allard was employed in a classification covered by the Award; that he was engaged in work which was substantially or wholly covered by the Award and that the Award applied to the Defendant’s operations.

114  Given my findings, it is unnecessary to rule on Mr Moon’s submission that the Complainant failed to prove the existence of the Defendant.

G Cicchini

Industrial Magistrate