Nature of work precludes access to LSL fund

Cases

Nature of work precludes access to LSL fund

The Victorian Court of Appeal has ruled that the work of labour-hire workers who build switch-boards was manufacturing so outside the coverage of a construction industry long service leave fund that covered electrical work.

WantToReadMore

Get unlimited access to all of our content.

The Victorian Court of Appeal has ruled that the work of labour-hire workers who built switchboards was manufacturing. It was therefore outside the coverage of a construction industry long service leave fund that covered electrical work.

The conditions of employment were consequently not those applying in the construction industry.

[Full text of this case: Baytech Trades Pty Ltd (ACN 147 997 788) v Coinvest Ltd (ACN 078 004 985) [2015] VSCA 342 (17 December 2015)]

The consequence of this decision was that portable long service leave that applied in the construction industry did not apply to these workers.

The judge at first instance found the work was properly considered as falling within construction work.

The respondent, Coinvest Ltd, was the trustee of the Construction Industry Long Service Leave Fund. The fund was established by the Construction Industry Long Service Leave Act 1997. The purpose of the fund is to provide portable long service leave benefits to Victorian workers who perform ‘construction work in the construction industry’ in Victoria, and who would otherwise not be able to access long service leave because they are casually employed by different employers.

Work deemed manufacturing


The Court of Appeal looked at the rules of the LSL fund and noted that metal trades work meant work: "(a) performed in the ‘construction industry’ in Victoria, being: (i) work of a kind for which a rate of pay is fixed by a prescribed Metal Industry Award; ... but does not include any work [which] involves the manufacture of any structures, fixtures, fittings, chattels or works which are not manufactured specifically for a particular building."

The appellate court concluded that although the word ‘assembly’ when read literally would cover the work of an electrician in assembling an appliance as part of a process of manufacture, the context showed it was not intended to have that meaning here. Rather, it was intended to cover an electrician who assembles (and then installs) an appliance on site, not an electrician who assembles it for supply by the manufacturer to a customer.

Implications of decision


The Court of Appeal noted the implications of this decision:

"If, contrary to our view, work done by electricians in the manufacture of electrical appliances did fall within the definition of ‘electrical services’, this would have very wide implications indeed. Clause 5.2.2.2 lists a wide range of electrical appliances, from computers to satellite receivers and radars. If the work of electricians in manufacture were included, then it would extend to the manufacture of appliances of all these different kinds."

The bottom line: A technical appreciation of award and union coverage can be critical in assessing the terms and conditions of workers in certain industries, as illustrated by this case.

Baytech Trades Pty Ltd (ACN 147 997 788) v Coinvest Ltd (ACN 078 004 985) [2015] VSCA 342 (17 December 2015)

See also: Employers and unions clash on coverage issues 

Post details