100317335

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING, AND ALLIED WORKERS UNION OF AUSTRALIA, ENGIN & ELECT DIV, WA BRANCH

CLAIMANT

 -v-

 BENCHMARK RECRUITMENT (WA) PTY LTD

RESPONDENT

CORAM MAGISTRATE WG TARR IM

DATE OF ORDER THURSDAY, 5 JUNE 2003

CLAIM NO M 165 OF 2002

CITATION NO. 2003 WAIRC 08540

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Representation

Claimant  Mr C Young for the Claimant

Respondent  Mr J Brits (of Counsel) of The Chamber of Commerce and Industry of Western Australia (Inc) for the Respondent

________________________________________________________________

Reasons for Decision

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Worship)

1         The claim in this matter is made pursuant to the provisions of the Industrial Relations Act 1979, and it alleges that the Respondent employer failed to comply with the Electrical Contracting Industry Award No R22 of 1978 (the Award) in that it did not pay its employee moneys according to the provisions of the Award.  The Claimant union is seeking the payment of those moneys plus pre-judgment interest and a penalty.

2         I was given a minute of agreed facts and it has been accepted by the parties that the only issue in this matter is whether or not the respondent is bound by the Award.  The area and scope of the Award is set out in clause 3 which reads as follows:

"This award relates to the Electrical Contracting Industry within the State of Western Australia and to all work done by employees employed in the classification shown in the First Schedule - Wages and employed by the respondents in connection with the wiring, contracting, maintenance and the installation and maintenance of electrical, light and power plants, and the installation of all classes of wiring, repair and maintenance of electric and electronic installations and equipment including switchboards and appliances carried out by the respondents as electrical contractors. …"

3         There is a proviso, and that is that the Award does not apply to the manufacturing section of the business of any of the respondents.

4         I was referred by the claimant to the Electricity (Licensing) Regulations 1991, which for the purpose of the regulations made under the Electricity Act 1945, defines “electrical contractor” as meaning:

“a person who carries on business as an electrical mechanic but does not include an electrical mechanic when acting in the capacity of an employee”

5         “Electrical mechanic” is defined as meaning:

“an electrical worker who is authorised under these regulations to carry out electrical installing work”

6         I was then referred to regulation 33(3), which reads:

“A person is taken to carry on business as an electrical contractor whether or not electrical installing work is only part, or is not a principal part, of the business carried on by him or her.”.

7         It seems to me that the purpose of the legislation is to ensure the quality and safety of electrical work performed within the State, and it does that by licensing those engaged in the electrical contracting industry.

8         It has been suggested that the work of an employee would “drag” a respondent into an award.  In my view there is no merit in that submission as it is clear from the authorities that the exercise to see whether an employer or employee is bound by an award requires a separate consideration for both the employee and the employer.  It does not follow that, if an employee does the work of those employees in the employee classifications in an award, an employer is bound by the award; nor is an employee of an employer bound by an award as a matter of course, because the employer comes within the scope of an award.

9         In my view this has been made quite clear in a number of cases, but certainly in the Bell-A-Bike case (Bell-A-Bike Rottnest Pty Ltd v AFMEPKIU 82 WAIG 2655) where, as I mentioned earlier, the employee was a cycle repairer, a large part of the business of Bell-A-Bike Rottnest Pty Ltd was cycle repair by the very nature of the fact that there were over 2000 bikes hired out by the Bell-A-Bike business.  But, as the Full Bench concluded, bike hire did not fall within the industry of cycle repairers, which was the industry referred to in the relevant award.

10     In this case the test is that set out, I believe, in the Donovan case, (RJ Donovan & Associates Pty Ltd v Federated Clerks’ Union of Australia, Industrial Union of Workers, WA Branch 57 WAIG 1317) which was followed by Fielding C, as he then was, in the Signlight case (Electrical Trades Union of Workers of Australia (Western Australian Branch) Perth v Signlite Pty Ltd 69 WAIG 2658), and the Full Bench in the Shenton Pumps case (Shenton Enterprises Pty Ltd trading as John Shenton Pumps v CEEEIPPU 80 WAIG 2842).  In the Shenton Pumps case His Honour the President said at page 2844:

"The appellant employer was not an employer named in the schedule and, therefore, the question for decision was whether it employed the employee named in the complaint in a calling mentioned in the award, in the industry to which the award applied.  The scope clause is, as Fielding C, as he then was, observed in the Signlight Case, a Donovan clause ….”

11     and he applied the ratio in the Signlight case to make the observations that are cited on page 2845.

12     I was referred to the Signlight case by Mr Brits, Counsel for the Respondent, and in particular, the paragraph at page 2659 which reads:

“The first task is to construe the area and scope clause according to its ordinary meaning ….  The area and scope clause provides that the award relates to the “electrical contracting industry” within the State of Western Australia.  That is at first blush, the industry to which the award applies.  It also refers to all workers employed in the classification shown in the First Schedule - Wages and employed by the respondents in connection with the named sorts of work.  Thus, the first approach referred to in Glover's case …is to be used.

The industry is defined as the electrical contracting industry.  The industry is not defined by the enterprises carried on by the named respondents.”

13     Further on at page 2660 it was said:

“In this case, the electrical contracting industry means in plain words the industry involving those employers who contract to do electrical work.  That would seem to us to be the ordinary meaning of the words.  The description of work done by the employees does not hold the answer.”

14     The plain ordinary words used are “who contract to do electrical work”.

15     The Respondent in this case does not contract to do electrical work.  It contracts to provide labour to, in this case, Interlec Electrical & Instrument Contractors who no doubt carry out electrical work for its clients, with whom Interlec has a contract or agreement.  Benchmark Recruitment (WA) Pty Ltd does not contract with anyone to do electrical work.  It contracts to provide labour, albeit at times, qualified licensed electricians.  The Respondent is a licensed employment agent, and in my view there is nothing in what it does which would interest the Electrical Licensing Board or require the Respondent to be licensed under the Electricity Act 1945 or the regulations made thereunder.

16     I find, therefore, that the Claimant has not established that the Respondent is bound by the Award, and the claim will be dismissed.

WG Tarr

Industrial Magistrate