Jennifer Sue McKenzie-MurrayvRealwest Property Pty Ltd as Trustee for the HK Smith Family Trust T/A Realwest Property

[2011] FWA 2466

[2011] FWA 2466

FAIR WORK AUSTRALIA

INTERIM DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Sue McKenzie-Murray
v
Realwest Property Pty Ltd as Trustee for the HK Smith Family Trust T/A Realwest Property
(U2011/4429)

COMMISSIONER CLOGHAN PERTH, 28 APRIL 2011

Unfair dismissal remedy.

[1] On 25 January 2011, Ms Jennifer Sue McKenzie-Murray (“the Applicant”) made application to Fair Work Australia (FWA) alleging that she was unfairly dismissed from her employment with Realwest Property Pty Ltd ATF the HK Smith Family Trust trading as Realwest Property (“the Employer or Realwest”).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).

[3] The Employer objected to conciliation and sought its jurisdictional objection to be dealt with prior to the Tribunal hearing and determining the merits of the application.

[4] The jurisdictional objection, in essence, is that as the Employer is not a “national system employer” as defined in s.14 of the FW Act as it is “a corporate trustee for a trust in WA” 1 .

[5] On 1 April 2011, the application was the subject of a conciliation conference. Following the conference, I issued Directions requiring each party to file submissions and evidence relating to the jurisdictional argument raised by the Employer.

[6] Both the Applicant and the Employer have submitted additional submissions and documentary material since the conciliation conference. In reaching this Decision, I have considered and given appropriate weight to all the material provided to the Tribunal, insofar as that material relates to the jurisdictional argument raised.

RELEVANT LEGISLATIVE FRAMEWORK

[7] Part 3-2 of the Act deals with unfair dismissals. The definition of “employer” and “employee” as used in this Part as follows:

380 Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[8] Thus in order for a dismissal to constitute unfair dismissal under the Act, it is first necessary to determine whether the dismissal involves a national system employee and a national system employer.

[9] Section 14 of the Act defines a national system employer as follows:

14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

[10] Section 13 of the Act defines a national system employee as follows:

13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

DISCUSSION

Who is the employer of the Applicant?

[11] The Respondent’s argument is that the Applicant’s employment is not subject to federal unfair dismissal laws because, as a trust, the Respondent does not satisfy the definition of a “national system employer”. However, as a matter of law, a trust is itself incapable of being an employer.

[12] A trust, in and of itself, is not a separate legal entity 2. Rather, a trustee is personally liable for debts and obligations incurred in carrying out the trust.

[13] Whilst the Applicant’s employment contract has not been submitted into evidence, both the Applicant’s Application and the Employer’s Employer’s Response name the Employer as “Realwest Property Pty Ltd as Trustee for the HK Smith Family Trust”.

[14] Given that the trust, in and of itself, is not capable of being an employer, based on the information provided by the parties, I find that the Applicant was employed by Realwest Property Pty Ltd.

Is Realwest Property Pty Ltd a constitutional corporation?

[15] A constitutional corporation is a corporation to which paragraph 51(xx) of the Constitution applies, which includes a trading or financial corporation formed in Australia.

[16] Realwest Property Pty Ltd is a trading corporation formed within Australia and in the absence of any contrary arguments raised by the parties, I find accordingly.

CONCLUSION

[17] I find that the Applicant was employed by Realwest Property Pty Ltd, which is a “national system employer” within the definition in s14(a) of the Act. Accordingly, the Applicant’s employment is covered by Part 3-2 of the Act and the Applicant is entitled to pursue protection against unfair dismissal.

[18] The Application will proceed to be listed for hearing of the substantive merits of the Application. Directions and a Notice of Listing will be issued shortly.

COMMISSIONER

Final written submissions:

2011,

April 18

 1   Employer’s Response to Application for Unfair Dismissal Remedy dated 11 April 2011.

 2   Commissioner of State Taxation (WA) v Merifield Cooksey Holdings Pty Ltd (1994) 30 ATR 21; 94 ATC 4774 at 4785 per Kennedy J, SC(WA), Full Court

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