The Victorian Court of Appeal held that an employer's liability to pay the long service leave charge under the Construction Industry Long Service Leave Act 1997 (Vic) is determined by applying the definitions of 'construction work' and 'construction industry' in the Rules to the activities the employer employs its workers to perform, without importing the 'substantial character' test from industrial union eligibility jurisprudence. An employer that employs a substantial workforce in maintenance and repair of structures for electricity generation is 'in the construction industry' as defined, even though its primary commercial purpose is electricity generation, because an employer can be in more than one industry and the in-house nature of the work does not exclude it from the definition. The proviso excluding 'maintenance or repairs of a routine or minor nature' did not apply because EnergyAustralia was substantially engaged in the construction industry, and in any event Major Outage and Integrity Outage Work was not of a 'routine or minor nature' — an event is not routine merely because it is planned and regular.
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