Tammy Comley v Blessing Holdings Pty Ltd as Trustee for the PJS Family Trust

[2013] FWC 5008

[2013] FWC 5008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tammy Comley
v
Blessing Holdings Pty Ltd as Trustee for the PJS Family Trust
(U2012/10183)

DEPUTY PRESIDENT MCCARTHY PERTH, 24 JULY 2013

Jurisdictional Objection -Whether Respondent a National System Employer.

[1] This matter concerns an application lodged by Ms Tammy Comley (the Applicant). I conducted a conference on 10 April 2013 and at that conference it was agreed that the accurate name of the employer was Blessing Holdings Pty Ltd T/A Trustee for the PJS Family Trust (the Respondent). I issued an order on 11 April 2013 amending the application to reflect the name of the Respondent agreed to at the conference as Blessing Holdings Pty Ltd T/A Trustee for the PJS Family Trust. A more accurate name of the Respondent is probably Blessing Holdings Pty Ltd as Trustee for the PJS Family Trust, and an adjustment to that effect will be made to the Respondent’s name.

[2] The Respondent later informed my office that they retracted their consent to that change and asserted that the employer was not a National System Employer. The Respondent therefore objected to the matter proceeding asserting that the Fair Work Commission (FWC) did not have jurisdiction to deal with the application. I conducted a hearing regarding this preliminary issue on 11 July 2013.

[3] There was no objection by the Respondent at the hearing for the Applicant to be represented by Mr Jenshel. I granted Mr Jenshel permission to represent having formed the view that whilst the matter was not complex it would enable the matter to be dealt with more efficiently.

[4] A copy of the Trust Deed was submitted as well as material showing that employees were paid by the Trust. The Trust Deed establishes the PJS Family Trust (the Trust) and the Trustee as Blessing Holdings Pty Ltd ACN 108 820711 of 136 Burswood Road, Burswood, Western Australia.

[5] The Respondent argued that the employer of the Applicant is the Trust, presumably meaning the PJS Family Trust. It was claimed that PJS Family Trust is the entity that provides services for the administration of the Jandakot Medical Centre where the Applicant was employed.

[6] The Respondent therefore asserted that the Applicant was employed by the Trust in isolation from any connection to Blessing Holdings Pty Ltd.

[7] The Respondent also argued that Blessing Holdings Pty Ltd did not have an Australian Business Number. As a consequence it was argued it was not a trading entity and therefore could not be a National System Employer as it was not a constitutional corporation. He also submitted that Blessing Holdings Pty Ltd is a holding company for the trust and that the services and management of affairs provided for the Jandakot Medical Centre is provided by the Trust as an entity in isolation from Blessing Holdings Pty Ltd.

[8] Mr Jenshel for the Applicant submitted that the Trust is not an entity but rather a structure set up as a matter of law to deal with the ownership and operations of property and assets between the legal entity and the beneficiaries of the Trust.

[9] He submitted that the only questions that arises here is whether (i) Blessing Holdings Pty Ltd is a trading corporation within the meaning of the Constitution and (ii) whether Blessing Holdings Pty Ltd is a National System Employer within the meaning of the Fair Work Act 2009 (FW Act).

[10] Mr Jenshel argued that the relevant facts are not disputed. Firstly, the Trust operates the Jandakot Medical Centre where the Applicant was employed. Secondly the Applicant was employed by the Trust. Thirdly, the Trustee is a registered Corporation. Fourthly, by being a registered Corporation the Trustee is a trading corporation and fifthly as a consequence of the Trustee being a trading corporation it must be a National system employer.

[11] Mr Jenshel added that had the Trustee of the Trust been an unincorporated entity, or an individual or a partnership, indeed any entity other than a trading corporation, then the FWC would be unlikely to have jurisdiction to deal with the matter.

[12] I agree with Mr Jenshel’s outline and argument. The Respondent here seems to misapprehend the Nature of the Trust. Here the Trust Deed creates an obligation imposed on the Trustee (Blessing Holdings Pty Ltd) and creates a Trust Fund. The Trustee is the entity that has responsibility for the Trust Fund though the holding of property and other assets, and creation of income to the Trust Fund for the beneficiaries of the Trust. The beneficiaries are those defined in the Fund as being the beneficiaries. The Trust Deed also outlines how the Trust is to operate. Here a business operates as a Trust, namely the Jandakot Medical Centre. The entity that is legally responsible for those operations is the Trustee viz; Blessing Holdings Pty Ltd. In essence it is the Trustee who has responsibility for the affairs of the Trust.

[13] Furthermore The PJS Family Trust cannot be a legal entity at general law unless there is a statutory provision that treats it as a legal entity. Here the relevant statute is the FW Act. There is nothing in the FW Act that provides for any different treatment of Trusts to the way Trusts are treated in the general law.

[14] I therefore find that the Respondent is a National System Employer. The Applicant was employed by a National System Employer and the Order I issue on 11 April 2013 identifies who the entity is that the Applicant was employed by. The FWC therefore does have jurisdiction to deal with this application and will proceed to do so in the usual course.

DEPUTY PRESIDENT

Appearances:

Mr Jenshel for the Applicant

Mr Ibukunoluwa from the Respondent

Hearing details:

2013.

Perth:

July, 11.

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