Western Australian Industrial Relations Commission

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Welcome to the Western Australian Industrial Relations Commission 

 We are an independent quasi-judicial tribunal established under the Industrial Relations Act 1979 to deal with industrial matters in the State of Western Australia by conciliation or, if necessary, arbitration. Our main objectives are to prevent and settle industrial disputes.

The WAIRC will deal with an application providing it has the jurisdiction or power to do so.   Click here for more information about who can apply to the WAIRC.

Online lodgement

You can now lodge documents online, including referring new claims to the Commission.  Click on this link, or click on the Applications and Forms tab above. 

Our new online lodgement system provides access to the Commission’s modernised Forms, in an interactive environment.

If you have any feedback or ideas about our new online lodgement system, please let us know by completing our Contact Form.

 

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Latest News

Full Bench found truck driver's conduct to be serious misconduct Friday, 27 March 2020 The Full Bench has unanimously dismissed an appeal against a decision of the Road Freight Transport Industry Tribunal (Tribunal) that found that the respondent lawfully terminated a Cartage Agreement (Agreement) with the appellant after the... More detail
Full Bench grants extension of time for appellant lodge appeal and to file appeal books Tuesday, 17 March 2020 The Full Bench has unanimously granted an extension of time for an appellant who filed a Notice of Appeal out of the time limit prescribed by the Industrial Relations Act 1979 (WA) (Act) and had not filed appeal books as required by the Industrial... More detail
Unfair dismissal claim dismissed for lack of jurisdiction as family trusts found to be national system employer Friday, 06 March 2020 The Commission has determined on the papers that it is unable to hear an unfair dismissal claim because the applicant was employed by a national system employer and the Commission does not have jurisdiction to hear the matter. The application... More detail

What is a 'State system' employer?

The State system covers employers who are not national system employers.

Employers who are State system employers include:

  • Sole traders
  • Partnerships
  • Some trusts
  • Some local government agencies*
  • Some not for profit organisations*

* The test for these employers is the extent and nature of any 'trading' activities.

A national system employer includes: 

  • A ‘constitutional corporation'. These are trading, financial or foreign corporations;
  • The Commonwealth (federal) government or a Commonwealth authority; and
  • An employer of flight crew, maritime workers or waterside workers in connection with interstate or international trade.

For a complete definition of 'national system employer', see Fair Work Act 2009 (Cth) s 14. 

Many private sector employers are trading corporations.  Therefore, they are national system employers and most aspects of the employment relationship are dealt with by the Fair Work Commission. 

What about trusts? 

A trust does not have a separate legal identity and therefore cannot be an employer.  If the trustee is a national system employer, then the employer is a national system employer.  The business of the trust is carried out by the trustee(s).  The trustee is liable for the business carried out.

What is a 'constitutional corporation'? 

Employer is
a corporation

+

Characterised by trading activities;

Characterised by financial activities;

or

Is incorporated in a foreign country.

=

Constitutional corporation

 

The most common type of constitutional corporation encountered by the Commission is the trading corporation.  Trading corporations are corporations that are characterised by trade or commerce.  There are also financial corporations, which are corporations that are characterised by financial activities.  Financial corporations are likely to be mostly banks and other large financial institutions.  Foreign corporations operating in Australia are also constitutional corporations. 

If an employer is a trading, financial or foreign corporation, the Commission will be unable to deal with most industrial matters related to them and their employees. 

What is a corporation? 

A corporation is a separate legal entity.  Corporations generally have the following words or letters at the end of their name.  These letters indicate the type of corporation they are: 

Pty Ltd

Proprietary Limited

Ltd

Limited

NL

No Liability

Inc.

Incorporated

 

Not all corporations have these letters after their names.  Some corporations are set up by Parliament.  These 'statutory corporations' are given a name by their own special legislation.  Therefore, they do not need to include 'Ltd' or 'Inc.' at the end of their name.  The corporate status of these entities can be confirmed by looking at their enabling legislation. 

Sometimes the enabling legislation will expressly exclude the entity it creates from having corporate status.  It is then necessary to look at the characteristics of the organisation to determine whether, in fact, it has the full characteristics of a corporation.  Important factors for an entity to be considered a corporation are whether:   

  • the entity is a separate right and duty bearing entity;
  • it may possess, own and deal with property;
  • the entity continues to exist despite changes in the natural persons who control its activities; and
  • the entity has a corporate seal.

If the entity has all of these traits, it is likely to have the full character of a corporation.

What is a trading corporation? 

A corporation is a trading corporation if its trading activities are significant or substantial.  Some factors relating to whether a corporation is a 'trading corporation' include: 

  • 'Trade' doesn't have to be the corporation's predominant activity;
  • However, trading must be a substantial and not just a peripheral activity;
  • 'Trading' extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services;
  • Making a profit is not essential to trade, but the two usually go hand-in-hand;
  • The purpose of the trading activity is irrelevant to whether the corporation is 'trading'. The fact that the trading activities are conducted in the public interest or for a public purpose will not necessarily mean the corporation is not a 'trading corporation';
  • Whether the trading activities of a corporation are sufficient to justify its categorisations as a 'trading corporation' is a question of fact and degree;
  • The current activities of a corporation, as well as the reason it was originally established are relevant; and
  • The commercial nature of the trading activities is important when considering whether the corporation is characterised as a 'trading corporation'.

There is no clear determining factor.  If an employer is a corporation and their activities fit within some or most of these indicators, they may be a trading corporation. 

What is a financial corporation?

Financial corporations are corporations involved in 'money dealings.'  Similar principles apply when assessing whether a corporation is a 'financial corporation' as apply to 'trading corporations'.  A financial corporation will 'deal in finance', such as by borrowing and lending money.  That is distinct from a corporation which trades goods or services for money.  Just using money does not make a corporation a 'financial corporation'.  Trade in money must be a significant part of the corporation's activity. 

What is a foreign corporation?

A foreign corporation is the simplest to identify.  If a corporation was formed in a foreign country, it is a foreign corporation. 

Contact Us

Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

Free Fax :1800 804 987

Email : Registry

 

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