Mr Michael Richardson v The Trustee for Woolark Family Trust T/A Woolark Pastoral

[2024] FWC 2534

[2024] FWC 2534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Michael Richardson
v

The Trustee For Woolark Family Trust T/A Woolark Pastoral

(U2024/8209)

DEPUTY PRESIDENT BEAUMONT PERTH, 20 SEPTEMBER 2024

Application for unfair dismissal remedy

1. On 15 July 2024, Mr Michael Richardson (the Applicant) applied for an unfair dismissal remedy having been dismissed by The Trustee For Woolark Family Trust T/A Woolark Pastoral (the Respondent). 

1. Two issues arose concerning the application. First, there was the question of whether the Respondent was a ‘national system employer’. If the Respondent was not a ‘national system employer’, this would clearly have implications for the application because Part 3-2 of the Fair Work Act 2009 (Cth) (Act) provides protection from unfair dismissal for ‘national system employees’, that is, employees who were employed by ‘national system employers’ (see ss 380, 13 and 14 of the Act).

1. Secondly, the application had, according to the Respondent, been made outside of the statutory period prescribed by s 394(2) of the Act. Notwithstanding the second issue, it is the first issue that is the focus of this decision.

1. On 18 July 2024, the Commission contacted the Applicant and left him a voicemail to inform that the Commission may not be able to deal with the unfair dismissal application because the Respondent is a ‘trust’, and further informed the Applicant that the Applicant would need to determine the structure of the ‘trust’ and whether the application should be lodged with the Commission or the Western Australian Industrial Relations Commission.

1. On 20 August 2024, the matter was allocated to my Chambers after the Applicant confirmed he wished to continue with his application although there was an issue whether the Respondent was a ‘national system employer’.

1. On 21 August 2024, directions were issued, and the parties were alerted to the issue that it was not clear that the Respondent was a ‘national system employer’.  The implications of the issue were highlighted and parties were placed on notice that an urgent mention would be held on Friday, 23 August 2024, to step the parties through the issues regarding the application. 

2. A mention was held on 23 August 2024, and as a consequence of that mention, the payslips of the Applicant were produced and then, subject to the issuance of an order, the Respondent produced the ‘Trust Deed’ that established the Respondent. 

1. It is appropriate to note at this juncture, it was uncontroversial that the Applicant was employed by the Respondent.  The Applicant’s payslips referred to Woolark Pastoral, as did his Group Certificate, and the Applicant had named the ‘respondent’ to his application as ‘The Trustee for Woolark Family Trust’.  According to the parties, no written employment contract was in existence.

1. Returning to the legislative framework of the Act, s 13 of the Act defines a ‘national system employee’ as an individual so far as she or he is employed, or usually employed, by a national system employer, the term ‘national system employer’ taking its meaning from s 14 of the Act.

1. Section 14 of the Act defines ‘national system employer’ as, amongst others, a constitutional corporation, so far as it employs, or usually employs, an individual. Section 12 of the Act defines a ‘constitutional corporation’ as a corporation to which paragraph 51(xx) of the Constitution applies, which relevantly refers to a trading corporation formed within the limits of the Commonwealth.

1. Turning to the material before the Commission, the Trust Deed establishes the ‘The Woolark Family Trust’ (the Trust) and the Trustees are named as Kenneth Gordon Drummond and Karen Lesley Drummond both of ‘Yirri West’, Mt Barker, in the State of Western Australia. The Respondent submits that the Trustees, namely Kenneth Gordon Drummond and Karen Lesley Drummond, are both individuals.

1. The evidence before me does not suggest that the Trust or the Trustees are incorporated.  It is evident from the Trust Deed that the Trust (insofar as it is relevant) and the Trustees are not incorporated under the Corporations Act 2001 (Cth). Further, there is no suggestion that they are expressly given the status of a corporation or body corporate in other legislation. None of the individuals are an organisation (s 338(2)(e)), that is an ‘organisation’ being one registered under the Fair Work (Registered Organisations) Act 2009 (Cth). Finally, none of the identified individuals are trade or commerce employers (s 338(3)).

1. Based on the submissions and evidence of the parties, I have found that the Respondent is not a constitutional corporation and therefore is not a ‘national system employer’.  It follows that the Applicant was not a ‘national system employee’ at the relevant time, and therefore the Applicant’s unfair dismissal application cannot continue as the Commission is absent jurisdiction to deal with it.  An Order[1] dismissing the Applicant’s application issues separately to this decision.

DEPUTY PRESIDENT

[1] PR779315.

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