Susan Lowdon Barnes v Gordon Garling Moffitt Lawyers

[2024] FWC 1353

[2024] FWC 1353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Susan Lowdon Barnes
v

Gordon Garling Moffitt Lawyers

(C2024/1761)

DEPUTY PRESIDENT DEAN CANBERRA, 24 MAY 2024

Application to deal with contraventions involving dismissal – whether employer is a national system employer.

1. Ms Susan Barnes (Applicant) has made a general protections application pursuant to s.365 of the Fair Work Act 2009 in relation to the cessation of her employment with Gordon Garling Moffitt Lawyers (Respondent).

1. The Respondent has objected to the application on the basis that the Commission does not have jurisdiction as it is not a national system employer for the purposes of the Act. The Respondent also objected to the application on the basis that it did not dismiss the Applicant.

1. This decision deals with the jurisdictional question of whether the Respondent is a national system employer. For the reasons set out below, I find that the Respondent is not a national system employer and as a result the second jurisdictional objection is not necessary to resolve.

1. Section 14 of the Act states that a national system employer is, amongst others, a constitutional corporation, so far as it employs, or usually employs, an individual. A constitutional corporation is a corporation to which paragraph 51(xx) of the Constitution applies[1].

1. The Respondent’s managing partner gave evidence that the employer is a partnership. The partners in the firm are three individuals (being natural persons) and three corporate trustees of their respective trusts. The uncontested evidence was that none of the corporate entities are trading corporations, and the partners who receive an income distribution from the business are the three natural persons and their three associated trusts.

1. The Applicant questioned the Respondent’s reliance on provisions in the National Employment Standards during the course of her employment and contended that such reliance demonstrated that the Respondent was a national system employer.

Consideration

1. A partnership between two or more persons is not, by definition, a corporation. For a partnership to be a national system employer, one of the partners must be a trading corporation. To be a ‘trading’ corporation, a substantial portion of its activities need to be trading activities. Trading is generally accepted, in this context, to mean an activity that involves some notion of buying and selling something or some service.

1. Based on the evidence before the Commission, I am not satisfied that any of the corporate entities are trading corporations. The uncontested evidence is the corporate entities do not receive any income. There is no evidence to suggest that the corporate entities engage in any trading activities necessary for a finding that they are trading corporations.

1. In relation to any reliance by the Respondent on the National Employment Standards in relation to its employees during the course of their employment, any such reliance does not change or affect whether any of the corporate entities who are partners in the partnership are trading corporations.

1. Given this finding, I am satisfied that the Respondent is a partnership and is not a national system employer. As a result, the Commission has no jurisdiction to deal with the application.

1. The application is dismissed. An Order to this affect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S Barnes on her own behalf.
R Power for Gordon Garling Moffitt Lawyers.

Hearing details:

2024.
By video:
May 23.

[1] Section 12 of the FW Act.

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