MyLeave - are electrical contractors obliged to register?

MyLeave administers the scheme established by the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the “Act”) for the provision of long service leave to eligible employees in the construction industry.

A recent decision of the Western Australian Industrial Relations Commission (“WAIRC”) has highlighted that the requirement to register and lodge quarterly returns has a broader reach than what Electrical Contractors may understand to be the construction industry.

Background facts

IC Cool Refrigeration, Mechanical and Electrical Services (“IC Cool”) applied to the WAIRC for a review of the Construction Industry Portable Paid Long Service Leave Board’s decision that it was required to register as an employer and pay contributions.

IC Cool’s primary business was the installation of air conditioning units in established residences and apartments. The company employed an electrician, a restricted fridge engineer, electrical apprentices, trades assistants and office administration staff.  

The question in issue was whether IC Cool was an “employer” as defined under the Act and therefore required to register with MyLeave.
The Act defines “construction industry” to include the carrying out on a site the construction, erection, installation, reconstruction, re-erection, renovation, alteration, demolition, or maintenance of or repairs to certain types of buildings or other works.

Issues

Under the Act an employee is defined to include a person who is employed (not an independent contractor) in a classification of work referred to in a prescribed award.

IC Cool tried to argue that this requirement meant that the prescribed award must apply to the employer.

The WAIRC confirmed that the definition of “employee” in the Act does not require that a prescribed award cover the employee’s employment, or, that the employer be bound by a prescribed award.  The Act only requires that the employee is employed in a classification of work referred to in the prescribed award.

The definition of “construction industry” in the Act requires that work is “carried out on a site”.

IC Cool tried to argue that “site” should be interpreted as “construction site” and argued that none of the work it performed could be said to be work on a “construction site” as traditionally understood.

The WAIRC has clarified that the reference to “site” should not be interpreted to mean “construction site”.  A place where maintenance or installation, but not construction or erection occurs, can be a “site” for the purposes of the Act.

Conclusion

The WAIRC found that IC Cool was an employer for the purposes of the Act because:

  1. it employed workers in a classification referred to in the prescribed award;
  2. those workers were engaged in the construction industry because:
  1. the work they carried out was carried out on a site (being the customer’s residence); and
  2. the work included installation of works for the supply or transmission of electric power and fixtures for the use of buildings.

 

As a result, employers should be aware that:

  1. where their employees are performing work on a site away from the employer’s place of business; and
  2. “construction” work is being performed; then the Act will apply whether or not:
  1. the site is a construction site as generally understood by the community as a site at which a building is being ‘constructed’ and
  2. the employees are employed on a project-by-project basis or are permanent employees

The decision is a useful reminder that the Act, and the scheme it establishes, has a broader reach than what electrical contractors may understand to be the construction industry.  

(Sparks ‘n’ Security Pty Ltd and Ritzline Pty Ltd trading as IC Cool Refrigeration, Mechanical and Electrical Services v Construction Industry Long Service Leave Payments Board [2017] WAIRC 164)

Disclaimer: The above summary is not legal advice. Employers should contact NECA Legal (WA) Pty Ltd to discuss their obligations relating to long service leave on 6241 6129 or email necalegalwa@ecawa.org.au