Miss Jaclyn Nangle v Kimberley Division of General Practice T/A Boab Health Services
[2012] FWA 6880
•16 AUGUST 2012
[2012] FWA 6880 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Miss Jaclyn Nangle
v
Kimberley Division of General Practice T/A Boab Health Services
(U2012/1110)
COMMISSIONER WILLIAMS | PERTH, 16 AUGUST 2012 |
Termination of employment - national system employer - extension of time.
[1] This matter involves an application made by Miss Jaclyn Nangle (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is the Kimberley Division of General Practice T/A Boab Health Services (the Respondent).
[2] This matter was the subject of a conciliation conference conducted by a Fair Work Australia Conciliator however the matter was not settled and so was referred to myself for determination.
[3] The Respondent has moved for the dismissal of the application on the basis that Fair Work Australia does not have jurisdiction because the employer is not a national system employer under the Act. Separately the Respondent objects to the application because it has been filed after the 14 day time limit referred to in s. 394(2)(a) of the Act.
[4] The parties were both invited to provide information regarding these matters. No information was provided by the Applicant.
The Respondent’s submissions
[5] The Respondent provided the following information and submissions in support of its jurisdictional objection. The Respondent did not make any submissions on the out of time objection.
Background
[6] The Respondent is funded via Commonwealth funding to provide outreach allied health services to rural and remote communities of the Kimberley.
[7] The Respondent does not receive any private or independent funding outside of State or Commonwealth grants.
[8] The Respondent has recently received a Medicare rebate for its services and this would equate to less than 1% of revenue currently being received.
[9] The Respondent therefore offers in the vast majority of services (about 99% of its activity) are free services to their clients.
Legal Principles
[10] The principles in determining whether a corporation is a trading corporation have been succinctly set out by Steytler P in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No. 2) [2008] WASCA 254) as follows:
“68. The more relevant (for present purposes) principles that might be drawn from these and other cases are as follows:
(1) A corporation may be a trading corporation even though trading is not its predominant activity: Adamson (239); State Superannuation Board (303-304); Tasmanian Dam case (156, 240, 293); Quickenden [491- [51], [101] ; Hardeman [18].
(2) However, trading must be a substantial and not merely a peripheral activity: Adamson (208, 234, 239); State Superannuation Board (303- 304); Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 at 20; Fencott (622); Tasmanian Dam case (156,240, 293); Mid Density (584); Hardeman [22].
(3) In this context, “trading” is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services: Ku-ring-gai (139,159-160); Adamson (235); Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 184-185, 203; 1 IR 397; Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325 at 330; Quickenden [101].
(4) The making of a profit is not an essential prerequisite to track, but it is a usual concomitant: St George County Council (539, 563, 569); Kuring-gai (140, 167); Adamson (219); E (343, 345); Pellow [28].
(5) The ends which a corporation seeks to serve by trading are irrelevant to its description: St George County Council (543, 569); Ku-ring-gai (160); State Superannuation Board (304-306); E (343). Consequently, the fact that the trading activities are conducted is (sic) the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as “trade”; St George County Council (543) (Barwick CJ); Tasmanian Dam case (156) (Mason J).
(6) Whether the trading activities of an incorporated body are sufficient to justify its categorisations as a “trading corporation” is a question of fact and degree: Adamson (234) (Mason J); State Superannuation Board (304); Fencott (589); Quickenden [52], [101] ; Mid Density (584).
(7) The current activities of the corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade: State Superannuation Board (294-295, 304-305); Fencott (588-589, 602, 611, 622-624); Hughes (20); Quickenden [101] ; E (344); Hardeman [18].
(8) The commercial nature of an activity is an element in deciding whether the activity is in trade or trading: Adamson (209, 211); Ku-ring-gai (139, 142, 160, 167); Bevanere (330); Hughes (19-20); E (343); Fowler; Hardeman [26]. 1”
[11] In considering whether the Aboriginal Legal Service (ALS) was a constitutional corporation, Steytler P added the following comments at paragraph 74:
“A trading corporation can contract with government to provide a charitable or welfare function in fulfillment of government policy. Ordinarily, the provision of large scale legal and allied services, for reward, is trading and the fact that it is not done for profit is not determinative of its character...”
[12] Yet the Industrial Appeal Court went on to conclude that for a number of reasons it considered the ALS did not have “a commercial character” (see Para 74). These included:
- Its entry into the contract (with the Federal Government) seemed removed from the ordinary concept of trading. It resembled a “government run legal aid agency”.
- Its services were provided free of charge.
- The services are provided for altruistic purposes, not shared by ordinary commercial enterprises, but consistent with its constitution which required that it only act in the furtherance of its altruistic object.
- It has the characteristics of a major public welfare activity with the Government providing funding to reimburse it for its costs.
[13] The Respondent submits that for the reasons outlined above it is not engaged in trading activity and therefore is not a national system employer. In particular it notes that its services;
- are provided free of charge.
- are provided for altruistic purposes.
- it has more of the character of a public welfare activity.
[14] Accordingly Fair Work Australia does not have jurisdiction to hear the matter and it therefore should be dismissed.
Consideration
[15] The Applicant did not respond to the information provided by the Respondent and I therefore take it that she does not dispute any of the factual assertions made by the Respondent in its submission. Consequently there is no requirement for there to be a conference or hearing held and I will now determine this matter on the basis of the information provided.
Is the Respondent a national system employer?
[16] Section 380 of the Act explains that for the purposes of the Unfair Dismissal Part of the legislation the word “employer” refers to a national system employer. A national system employer is defined in s. 14 of the Act 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.
Particular employers declared not to be national system employers
(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.
Endorsement of declarations
(4) The Minister may, in writing:
(a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or
(b) revoke or amend such an endorsement.
(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the endorsement, revocation or amendment.
Employers that cannot be declared
(6) Subsection (2) does not apply to an employer that:
(a) generates, supplies or distributes electricity; or
(b) supplies or distributes gas; or
(c) provides services for the supply, distribution or release of water; or
(d) operates a rail service or a port;
unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.
(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.”
[17] In the context of the current application the question is whether the Respondent is covered by s. 14(1)(a); being a constitutional corporation.
[18] The information before the Tribunal is that the Respondent:
- is funded via Commonwealth funding to provide outreach allied health services to rural and remote communities of the Kimberley.
- does not receive any private or independent funding outside of State or Commonwealth grants.
- has recently received a Medicare rebate for its services and this would equate to less than 1% of revenue currently being received.
- offers in the vast majority of services (about 99% of its activity) are free services to their clients.
[19] I accept as the Respondent observes that its services are provided free of charge and are provided for altruistic reasons and its services are of the character of a public welfare activity.
[20] The case law and principles that are relevant to this application were summarised in Christopher Daly v Wangki Yupurnanupurru Aboriginal Corporation [[2011] FWA 3100] at paragraphs [21] to [27].
[21] In this instance the employer exists to provide health and allied services to remote communities in the Kimberley region of Western Australia. It is fair to say that it provides a community service in a number of ways.
[22] The services provided to the community are not charged for. Funding for this service provision is provided almost exclusively by grants from the Commonwealth and State Government. This grant funding provides as much as 99% of the Respondent employer’s revenue.
[23] Consequently I find that “trading”, including buying and selling and earning revenue from trading services, is neither the predominant nor a substantial activity of the Respondent.
[24] The predominant activity that characterises the Respondent is neither trading nor finance. I conclude therefore that the Respondent is not a constitutional corporation and so is not a national system employer.
[25] Because Miss Nangle’s employer was not a national system employer she is not a person protected from unfair dismissal under s. 382 of the Act and so she is not able to make this application for a remedy.
[26] Consequently this application must be dismissed for this reason.
Application made more than 14 days after the dismissal?
[27] Even if, contrary to my conclusion above, the application is within jurisdiction s. 394 of the Act requires that the application be made within 14 days after the dismissal took effect.
[28] The Applicant in her application stated that dismissal took effect on 30 March 2012.
[29] The application to Fair Work Australia was made on 14 May 2012, later that the 14 day statutory time limit.
[30] The Applicant has not provided any information to suggest that there were exceptional circumstances such that a further time for making of the application should be allowed.
[31] The application was not made with the time limit required and for that reason must also be dismissed.
Conclusion
[32] The Respondent’s objections, firstly that Fair Work Australia does not have jurisdiction to hear the application because the employer is not a national system employer and secondly that in any case the application was filed after the 14 day time limit referred to in s. 394(2)(a) of the Act, are both upheld. As a result this application must be dismissed.
[33] An order dismissing this application will be issued in conjunction with this decision.
COMMISSIONER
1 (2008)178 IR 168 at 186 per Steytler P; [2008] WASCA 254 at para.68 per Steytler P.
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