Lachlan Paul Banks v The Trustee for Aivish Family Trust
[2023] FWC 2665
•12 OCTOBER 2023
| [2023] FWC 2665 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Lachlan Paul Banks
v
The Trustee for AIVISH FAMILY TRUST
(C2022/3693)
| COMMISSIONER SCHNEIDER | PERTH, 12 OCTOBER 2023 |
Application to deal with contraventions involving dismissal
Mr Lachlan Paul Banks (the Applicant) has filed an application in the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act).
The application has been filed to deal with a general protections dispute involving an alleged dismissal by The Trustee for AVISH FAMILY TRUST (the Respondent).
Jurisdictional concerns were raised on the grounds that the Respondent may not be an entity of a type contemplated by section 338 of the Act.
The Respondent also objects to the application on the grounds that the Applicant was not dismissed. This decision contemplates the first mentioned jurisdictional issue.
Relevant Law
Pursuant to section 338(1) of the Act, Part 3-1 of the Act applies to action capable of affecting, or intended to affect, an employee of the employer, and that is, briefly stated, an action:
a) taken by a constitutionally-covered entity;
b) affecting the activities, functions relationships or business of a constitutionally-covered entity;
c) consisting of advising, encouraging or inciting a constitutionally-covered entity to take, or refrain from taking, particular action in relation to another person;
d) taken in a Territory or Commonwealth place; or
e) taken by a trade and commerce employer or a Territory employer.
Section 338(2) of the Act further clarifies the types of entities that constitute a constitutionally-covered entity within the meaning of the Act as:
a) constitutional corporations;
b) the Commonwealth;
c) Commonwealth authorities;
d) bodies corporate incorporated in a Territory; and
e) organisations.
A constitutional corporation within the meaning of the Act is a corporation within the meaning of section 51(xx) of the Constitution, namely a foreign corporation or a trading or financial corporation formed within the limits of the Commonwealth.[1]
A trade and commerce employer is a national system employer within the meaning of section 14(1)(d) of the Act and is not relevant for present purposes.
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.
Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).
Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.
(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:
(a) that employer:
(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or
(ii) is a body established for a local government purpose by or under a law of a State or Territory; or
(iii) is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and
(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and
(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.
(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer. …”
Section 12 of the Act defines a constitutional corporation as “a corporation to which paragraph 51(xx) of the Constitution applies.”
Submissions – Consideration
Consistent with the directions issued to the parties, I have made this decision based on the material filed by the parties in the directions.
The Applicant was afforded the opportunity to make submission in relation to the jurisdictional issue. However, the Applicant did not file any materials.
The Respondent submits that it is not subject to the Commission’s jurisdiction as the Trustee, who is the employer, is an individual and does not meet the requirements to be a constitutionally covered entity or a national system employer.
The Respondent has provided the Commission with a copy of the Trust Deed.
The Trust Deed confirms that the Trustee is an individual, not any type of incorporated entity.
The Trust Deed also confirms that there are no incorporated beneficiaries.
The employment relationship, the Applicant, and the Respondent are all contained in the state of Western Australia, which is not a referring state for the purposes of the Act.
Public information found, from a search of the Respondent’s ABN, confirms that the Trustee is an unincorporated entity and that the Trust is a discretionary trading trust.
It is useful to note the comments of Deputy President Hampton, then Deputy President of the South Australian Industrial Relations Commission, in Re Dr Ij Hough.[2] The matter before the Deputy President concerned applications for the approval of two Enterprise Agreements in the South Australian jurisdiction. In relation to the concept of a constitutional corporation, the Deputy President helpfully noted:
“Considerable debate will no doubt ensue about the meaning and application of the concept of a constitutional corporation in the months and years to follow. It is sufficient for present purposes for me to deal with these applications on the basis that on any view as adopted by the High Court to date, the concept of a constitutional corporation relevantly requires that the employer be a corporate entity. Unincorporated bodies or persons do not fall within this category notwithstanding the extent and substance of their financial and/or trading activities.
These two applications involve trust arrangements. It is generally recognised that a trust is not of itself a corporate entity but rather a legal relationship where one "person" (the trustee) holds property or rights on behalf of another (the beneficiary). In that context it is therefore necessary to consider the identity and nature of the trustee arrangements and potentially the beneficiaries. Where the trustee is a corporation, it might be necessary to consider whether it is the actual employer and whether it is a trading or financial corporation within the meaning of the Commonwealth Act. Where the trustee is a (non-corporate) family, partnership or individual trustee it might also be necessary to consider whether the beneficiaries include a trading or financial corporation and if so, to determine which entity is the actual employer of the employees for present purposes.”[3]
(Emphasis added)
From the materials submitted by the Respondent, it is clear that the employer in this matter is not an incorporated entity nor are any such entities closely related to the employer.
As such, it follows that the employer in this matter cannot be considered a constitutional corporation or, as this matter pertains to Western Australia, a national system employer for the purposes of the Act.
I am satisfied that the Respondent does not fall within any of the other categories of constitutionally covered entities as contemplated in the Act.
Accordingly, the Respondent is not a constitutionally covered entity for the purposes of the Act.
The Commission does not have jurisdiction to hear the matter further.
Conclusion
For the above reasons, the application is dismissed for want of jurisdiction. An Order dismissing the matter has been issued.[4]
COMMISSIONER
Determined on the papers.
[1] Fair Work Act 2009 (Cth) s 12.
[2] Dr Ij Hough Veterinary Surgery Veterinary Staff Enterprise Agreement 2006 and Glenelg Veterinary Clinic Veterinary Staff Enterprise Agreement 2006 [2006] SAIRComm 10.
[3] Ibid, 9-10.
[4] [PR767178].
Printed by authority of the Commonwealth Government Printer
<PR767177>
0
0
0