Western Australian Industrial Relations Commission

Aboriginal Community Housing Limited found to be a trading corporation

The Commission has dismissed an unfair dismissal claim made by a Housing and Property Service Officer after determining on a preliminary question and finding that the Commission did not have jurisdiction to hear the matter as the respondent is a trading corporation and a national system employer.

In determining on the preliminary matter, Commissioner Walkington considered three issues.

Firstly, the Commissioner was satisfied that the respondent was incorporated in Victoria on 1 August 2013 as the Community Housing (Capital) Ltd.

Secondly, the intended purpose of the respondent was found to be a benevolent one and the character of the activities at the relevant time may involve trading even though they are conducted for a public purpose.

Thirdly, Walkington C held that the respondent had engaged in significant and substantial trading activities of a commercial nature. Since 2012 the respondent had a Service Agreement with the Department of Housing which, in 2014 and 2015, was secured through a tender process. The Service Agreement included prices proposed by the respondent for the provision of services in two regional areas. The nature of the agreement between the respondent and the Department of Housing was considered by Walkington C who stated that ‘price was an important consideration in the Service Agreement tender process and one that the Department of Housing specifically reserved the right to reject the proposal.’ In light of these factors, Walkington C viewed the nature of the respondent’s business as being a commercial one that involved trade in services.

The Commission found that the respondent’s business is a trading corporation and therefore outside of the Commission’s jurisdiction.

The decision can be read here.

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