WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. G Parri & M Parri trading as G & M Parri (Appellants) and The Western Australian Builders’ Labourers, Painters & Plasterers Union of Workers (Respondent). No. 135 of 1998. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY COMMISSIONER C B PARKS COMMISSIONER S J KENNER. 22 May 1998. Reasons for Decision. INTRODUCTION THE PRESIDENT: This is an appeal under s.84 of the Indus- trial Relations Act 1979 (as amended)(hereinafter called “the Act”) and validly brought against the decision of an Industrial Magistrate sitting in the Industrial Magistrates’ Court at Perth, made on 19 December 1997 (see Appeal Book (hereinafter referred to as “AB”) at page 16). By that decision, His Worship, having found that the appel- lants were in breach of or failed to comply with an award, ordered them to pay— (a) A penalty of $4,200.00. (b) Wages—$2,139.72. (c) Costs—$222.30 It is against that decision that the appellant employers now appeal. Extension of Time Within Which to Appeal There was an application to extend time within which to appeal. The notice of appeal was filed out of time due to an earlier protracted appeal against what was wrongly as- serted to be the decision in the same complaint having been struck out. We were of the opinion that there was an arguable case, that there was some explicable delay in filing and serving the no- tice of appeal, and that the justice of the application did not require the denial of an opportunity to pursue an appeal. (See Tip Top Bakeries v TWU 74 WAIG 1189 (IAC) and the orders made accordingly.) GROUNDS OF APPEAL The grounds of appeal appear at AB 2 and attack a finding that the appellants’ employee and the respondent’s member, Mr Stephen Paul Howarth, was “covered” by the classifica- tion of “on-site” painter, pursuant to the subject award, the Building Trades (Construction) Award No. 14 of 1978, be- cause— “1. the learned Magistrate erroneously found that Mr Howarth did undertake “on site” painting work whilst employed by the Defendant (the Appellant in this Application); 2. the learned Magistrate failed to have sufficient re- gard to the evidence of the Defendant which demonstrated clearly the nature of the of the(sic) painting duties and the work sites on which Mr Howarth was engaged by the Defendant; 3. the learned Magistrate failed to have sufficient re- gard to the references relied upon by the Defendant in it’s(sic) submissions, which determine the defini- tion of “construction work” and “on site”, to be applied in the context of the Award; 4. the learned Magistrate failed to apply the correct prin- ciples in determining that Mr Howarth was an “on site” painter engaged on “construction work”, as applied in the context of the Award.” BACKGROUND The background of the matter is this. The respondent or- ganisation alleged, by complaint made on 13 June 1997, that, in relation to Mr Stephen Paul Howarth and his employment by the appellants, the appellants had committed a number of breaches of the “Building Trades (Construction) Award 1987, No R 14 of 1978”(hereinafter referred to as “the award”). The matter was heard by the Industrial Magistrate at Perth and a number of matters were raised in issue which were de- cided. Briefly, however, the relevant evidence and findings, rel- evant to this appeal in any event, can be said to be as follows. Mr Stephen Paul Howarth has been a painter for about 18 years. In response to an advertisement, he spoke to Mrs Parri on the telephone and then went for an interview with Mr Guido Parri (both of the appellants in this case) on 12 January 1993. As the Magistrate found, and as it was not challenged upon this appeal, Mr Howarth was employed as a painter by the appellants, commencing work on 13 January 1993. He did painting work, including painting schools for $16.25 an hour, painting the Morley Primary School, the Balcatta Primary School and parts thereof. This work included rubbing up, loos- ening paint, scraping paint off, touching up with primer, with filler, undercoat, gloss, etc. (see AB 26—28). That he did this work was in fact confirmed in evidence by Mr Guido Parri (see AB 48—49). It was not in issue that his work was a painter’s work. The sole question to be decided upon appeal was whether, within the definition of Clause 7(3) of the award, Mr Howarth, having been conceded to be a painter, was engaged in con- struction work. It was not in issue upon appeal before us that he was not otherwise covered by the award and particularly by the provisions of Clause 3(1). Clause 3(1) reads as follows— “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 con- struction industry; and” By Clause 7(3), construction work is defined as follows— “(3) “Construction Work” means— (a) all work “on-site” in connection with the erec- tion, repair, renovation,maintenance, ornamentation or demolition of building 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 Refer- ence to be construction work.” (See 73 WAIG 2131 at 2133.) If Mr Howarth were employed upon “construction work”, as defined, then he was covered by and the appellants were bound by the award. No other question was raised upon ap- peal. Some time was spent in submissions on the history of the award and submissions were made on behalf of the appellants that work on site could only be in connection with a new build- ing. An award is to be interpreted in according with the princi- ples laid down in Norwest Beef Industries Ltd and Derby Meat Processing Co Ltd v AMIEU 64 WAIG 2124 (IAC) (see also AEEFEU v Minister for Health 71 WAIG 2253 (IAC)). It is necessary to give to the words their ordinary and natu- ral meaning unless to do so is to render ambiguous or absurd the meaning to be attributed to the clause. Further, if to do so is to attribute a meaning which is inconsonant with the mean- ing or purpose of the award or the remainder of the provisions of the award, then one takes a different approach. It is necessary to read the subject provisions of the award, including Clause 7(3), in the context of the whole of the award. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2345 78 W.A.I.G. The question is, firstly, whether the work being done by Mr Howarth was “on-site”. In my opinion, the words “on-site” mean that the work is being done on a site, that is a construction site rather than in a factory (see WABLPPU v Anglican Homes Inc 76 WAIG 4456 (FB)), or a site where, at material times, construction work is or was performed. (See the most ap- posite definition of “site” in The Macquarie Dictionary (3rd Edition) “The area on which anything, as a building is, has been or is to be situated.”) In this case, the work was clearly being done on-site by Mr Howarth, because Mr Howarth was employed by a contractor who contracted with the owners or tenants of the buildings, being schools etc., to paint them. That is what, on all of the evidence, he did. The next question is whether the work done was “in connec- tion with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or other structures of any kind whatsoever”. (See The Macquarie Dictionary (op cit) definitions— “Repair: to restore to a good or sound condition after de- cay or damage; mend. Renovate: to make new or as if new again; restore to good condition; repair. Maintain: to keep in due condition, operation or force; keep unimpaired.”) The nouns derived from those verbs appear in the clause and describe the work which Mr Howarth was doing by paint- ing existing buildings. It is quite clear that the painting was done by way of either repair or renovation or maintenance, because it was being done to existing structures which one ought to be able to assume were already painted. If they were not, it was done in relation to a structure that had not been painted before and might still be said to be renovation or mainte- nance or ornamentation. It was a substantial part of the appellants’ case that “con- struction work” must be and mean work which is done to construct a new building. However, in terms of the definition, one cannot repair or demolish or renovate a new building, or even maintain one. It is, therefore, clear that the work being done by Mr Howarth was “construction work”, as defined, and that the award applied to him, to the work he did and to the appellants. The Industrial Magistrate did not err in so find- ing. I would add that the question as to whether the work being done was work done by someone employed “in the building construction industry” (see Clause 3(1) of the award) was ac- knowledged by the advocates for the parties not to be a question before the Full Bench in this appeal. The appeal should, therefore, be dismissed, no ground of appeal having been made out. I would order accordingly. COMMISSIONER C B PARKS: I have read the reasons for decision of His Honour the President. I agree with those rea- sons and have nothing further to add. COMMISSIONER S J KENNER: I have had the advantage of reading the draft Reasons for Decision of His Honour the President and agree with those reasons and the Order he pro- poses. I add the following observations of my own. The grounds of appeal and the background to this matter are set out in the reasons of His Honour the President and I need not repeat them. The short point arising on this appeal is whether Mr Stephen Paul Howarth was, at the material times, engaged in construction work, for the purposes of the Build- ing Trades (Construction) Award 1987, No R14/1978 (“the Award”). Clause 3.—Scope of the Award relevantly provides— “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 con- struction industry; and” Therefore, the essential elements to establish coverage un- der the Award are that a person must— (a) be an employee; (b) be employed on construction work as defined; (c) be engaged in any of the callings set out in Clause 8.—Rates of Pay of the Award; and (d) be employed in the building construction industry. It was not challenged on appeal that at all material times Mr Howarth was engaged in a calling contained in the Award and was employed in the building construction industry. Clause 7(3)(a), sets out the definition of construction work as follows— “(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” The remaining paragraphs of Clause 7(3), dealing with the determination by a Board of Reference as to what is or is not construction work, is not relevant to the appeal. The principles of interpretation applicable to awards are the same as those applicable to other instruments. That is, the words used in an award are to be interpreted in accordance with their plain and ordinary meaning in the context of the award as a whole. In circumstances where the plain and ordinary mean- ing of the words are clear and unambiguous, it is not appropriate to resort to extrinsic material as an aid to construction: Norwest Beef Industries Ltd and Derby Meat Processing Co Ltd v Aus- tralasian Meat Industry Employees Union (1984) 64 WAIG 2124; State School Teachers Union of WA (Inc) v Hon Minis- ter for Education 1987 AILR 494; Goldsworthy Mining Ltd v ETU 1988 AILR 399. In Western Australian Builders Labourers Painters and Plas- terers Union of Workers v The Anglican Homes Inc (1996) 76 WAIG 4456, a similar issue to the instant matter arose for de- termination by the Full Bench, on appeal from a decision of an Industrial Magistrate. The award in issue in that case was the Award and specifically, Clause 7(3)(a) was dealt with. In considering the meaning of “on site” for the purposes of the clause, Sharkey P observed at 4457— “However, it is difficult to see how the word “on site” can mean anything other than work done on a building site as distinct from work done in a factory or workshop or at ones home or ones own business premises by ones self or ones employees....The whole context of the award, including the occupations referred to and defined thesafety procedures (as well as it’s history as outlined by Ms Laferla), makes it certain that the award related to building construction on building construction sites, not to the proprietor of a business or institution or a home owner having his/her /it’s employees maintain buildings which the former own and use” Further, as an aid to construction, the title of the Award and its scope in Clause 3, refer to “construction” and the “building and construction industry” respectively. (See:The Australian Builders Labourers Federated Union of Workers v Heyring Pty Ltd (1988) 68 WAIG 683). It is in this context that the phrase “on site” should be interpreted. It was clear on the evidence before the Industrial Magis- trate, that at all material times Mr Howarth was engaged in painting work at various primary schools, the nature of which is set out in the Reasons of His Honour the President. On the uncontroverted evidence at first instance, the appel- lants were painting contractors and their business was to attend “on site” (in the sense outlined above) for the purposes of per- forming their contracts with their customers. Furthermore, it was clear on the evidence that Mr Howarth, in the course of his duties, was engaged in painting work in connection with repairing, renovating or maintaining (as those words are ordinarily understood) an existing building ie pri- mary schools. The argument of the appellants, that Clause 7(3) as defining construction work, must be read down to only ap- ply to new buildings, cannot in my view be sustained. If this interpretation were correct, then it would deprive the words “repair, renovation, maintenance, ornamentation or demoli- tion of buildings” of any meaning and would render those words nugatory. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 78 W.A.I.G. 2346 Accordingly, none of the appeal grounds have been made out and the appeal should be dismissed. THE PRESIDENT: For those reasons, the appeal is dis- missed. Order accordingly Appearances: Mr O Moon, as agent, on behalf of the appel- lants. Ms J Harrison on behalf of the respondent organisation