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Created: 28 November 2018

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'? 

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: 

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. 

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Created: 28 November 2018

A dismissal may be unfair when an employer terminates an employee’s employment in circumstances that are harsh, oppressive or unfair.  The Commission can only deal with unfair dismissal claims made against State system employers.  Claims of unfair dismissal by many government employees are dealt with by the Public Service Appeal Board. 

An unfair dismissal claim is started by the employee filing a Form 2 – Notice of claim of harsh, oppressive or unfair dismissal.  The Commission's forms can be found here.

A claim of unfair dismissal can also be pursued by a union under section 44 of the Industrial Relations Act 1979. 

1  Who can bring an unfair dismissal claim?

The Commission does not have the power to deal with every case when someone is dismissed in what might be unfair circumstances.  For the Commission to be able to deal with a claim: 

1. The employer must be in the State system;
2. The claim must be brought within 28-days of the dismissal, unless the Commission decides that it would be unfair not to accept the claim (time limit);
3. The person dismissed must have been an employee;
4. Their salary must be less than the prescribed amount (the salary cap), unless they are covered by an industrial instrument; and
5. They cannot be government officers and some other government employees.

Employees on probation or employed for less than 3 months may make a claim of unfair dismissal, but in deciding whether a dismissal was unfair, the Commission will take these factors into account.

2  What is the claim about?

An unfair dismissal claim is about whether the employer exercised their lawful right to dismiss in a way that was harsh, oppressive or unfair in all of the circumstances.  The Commission can award reinstatement or compensation up to a maximum of 6 months of the employee's wages. 

The claim focusses on two aspects of the dismissal: 

• whether the penalty of dismissal was appropriate in the circumstances; and/or
• whether the employer's procedure in arriving at the decision to dismiss was unfair to the employee and therefore it
• should not be allowed to stand.

A failure by the employer to adopt a fair procedure in reaching the decision to dismiss the employee does not automatically mean that the dismissal was unfair. 

More information about the types of dismissal and what these claims are about can be found here.

3  Process for dealing with an unfair dismissal claim

Claims of unfair dismissal are dealt with by conciliation.  If the parties are unable to reach agreement through conciliation, the matter may be decided by a Commissioner at a hearing. 

More information about the process for dealing with a claim of unfair dismissal and issues that may be encountered along the way can be found here.

4  Outcome of the process

If a claim of unfair dismissal is unsuccessful, it will be dismissed.  If the claim is upheld, the Commission may order reinstatement or compensation for loss or injury. 

More information about the outcome of the process  can be found here.

5  Enforcement

If the Commission makes an order in favour of the employee and the employer refuses to reinstate the employee or does not pay the compensation awarded, the employee can apply to the Industrial Magistrate's Court to have the order enforced. 

The Industrial Magistrate's Court can also impose a penalty of up to $5,000 on the employer. 

Please refer to the Industrial Magistrate's Court website for more information about enforcement.

6  Appeal

A decision of the Commission in relation to a claim for unfair dismissal can be appealed to the Full Bench.  The appeal must be made within 21 days from the date the decision is handed down.  The Commission issues 2 documents at the end of the matter.  The first is the Reasons for Decision in which the Commission sets out why he or she has come to their decision.  The second is the Order which sets out the outcome.  The relevant decision for the purpose of an appeal is the Order made by the Commission. 

More information about appeals to the Full Bench may be found here.

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Created: 18 June 2018

Road Freight Transport Industry Tribunal Forms Page

Prescribed forms are located on The Western Australian Industrial Relations Commission’s website here.

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Created: 20 June 2017

General Orders

Amendment to Awards with an Adult Wage less than the Minimum Wage

Location Allowances

Long Service Leave

Review and Variation of Awards Agreements and Orders (Labour Relations Amendment Act 1997)

State Wage Cases

Termination, Change and Redundancy

Wage Structures for School-based and Part-time Apprentices