The Western Australian Industrial Relations Commission

The applicant filed a claim with the Commission in October 2021, alleging that the Respondent failed to provide contractual benefits, including ordinary wages, overtime, annual leave, and superannuation. The matter proceeded to conciliation in March 2022 without resolution, and subsequent attempts to progress the matter, including requests for updates from both parties, were unsuccessful, and settlement discussions between

In March 2025, both parties were notified of a Show Cause Hearing set for September 2025, and the applicant was advised that failure to attend could result in dismissal for want of prosecution under section 27(1)(a) of the Industrial Relations Act 1979 (WA). Neither party attended the hearing, although the respondent was not required to do so. The Commission confirmed that the applicant had been properly served notice in accordance with regulation 25(2) of the Industrial Relations Commission Regulations 2005 (WA).

Commissioner Walkington found that the applicant had failed to prosecute his case, had not provided any adequate reason for the lack of response to the Commission’s communications, or to appear at the Show Cause Hearing.  The Commissioner concluded that the applicant did not have sufficient interest for the application to be sustained. Accordingly, the application was dismissed for want of prosecution.

The decision can be read here.  

In March 2025, the applicant submitted an application to the Commission to register the Ovis Community Services Enterprise Agreement 2025. The central issue before the Commission was whether the applicant qualified as a “national system employer” under the Fair Work Act 2009, which would determine the Commission’s jurisdiction. The applicant, incorporated under the Associations Incorporations Act 2015 and registered as a not-for-profit charity, provides support services for women and families experiencing domestic and family violence. The organisation’s primary activities are funded by government grants, with additional income derived from nominal rent and donations.

Both the applicant and respondent contended that the applicant was not a trading corporation, arguing that any trading activities were incidental to its benevolent purpose. However, the Commission found that the applicant’s activities included significant trading elements, such as providing accommodation for payment and delivering services under government contracts, which constituted trade in services.

Commissioner Tsang examined the evidence and legal principles governing the characterisation of trading corporations under s 51(xx) of the Constitution. The assessment considered the applicant’s activities, financial statements, and service agreements with government departments. Although the applicant’s primary purpose is benevolent, the Commissioner noted that revenue from rental income, interest, and remuneration for services provided under government contracts constitutes commercial activity. The legal framework requires that trading activities be substantial rather than peripheral, regardless of the organisation’s public welfare purpose. Service agreements, even when structured as fixed-funding contracts, were found to represent trade in services, as the applicant was remunerated for providing specified services to the State.

Commissioner Tsang concluded that the applicant’s trading activities – including rental and interest income, and remuneration from service agreements – formed a sufficiently significant proportion of its overall activities to merit its characterisation as a trading corporation, and as a result, the applicant was found to be a trading corporation. Consequently, the Commissioner determined the Commission lacked jurisdiction to consider the application, and accordingly, the application was dismissed.

The decision can be read here.

The applicant lodged a claim with the Commission in February 2022, alleging unfair dismissal by the respondent. The respondent contested the claim, asserting the dismissal was fair in the circumstances.  A conciliation conference was scheduled for April 2022, with both parties notified. The respondent expressed concerns about attending in person and was granted permission to participate remotely. However, both parties ultimately failed to attend the scheduled conference. Subsequent attempts by the Commission to contact the applicant, including emails, telephone calls, and posted letters, were unsuccessful. The applicant did not respond to requests to clarify their intentions or to progress the matter.

After notifying both parties, a show cause hearing was scheduled for September 2025. The applicant did not attend the hearing, and the respondent, having been advised attendance was not required, also did not appear. The Commission was satisfied that the applicant had been given reasonable opportunity to be heard and to show cause why the application should not be dismissed for want of prosecution.

Commissioner Walkington found that the applicant had failed to progress the application and demonstrated insufficient interest in the matter. In light of the prolonged lack of communication and engagement, the Commissioner determined that the applicant had not discharged the onus to advance their claim. Accordingly, the application was dismissed for want of prosecution.

The decision can be read here.   

In April 2023, the applicant was engaged by the respondent to provide ongoing transport services under a contract. The applicant’s responsibilities included the collection and delivery of equipment and items hired out by the respondent for the building and construction industry, including equipment, portable buildings, amenities sheds, toilets, generators, and shipping containers.  In January 2025, the respondent terminated the contract without notice, prompting the applicant to file a referral to the Commission, sitting as the Road Freight Tribunal (Tribunal) in March 2025.

The application raised two principal issues: whether the respondent was required to make a payment in lieu of notice under the Owner Drivers (Contracts and Disputes) Act 2007 (WA) (OD Act), and whether the respondent was liable for damages for allegedly banning the applicant from subcontracting work to other transport companies subsequently engaged by the respondent.

The respondent objected to the Commission’s jurisdiction, arguing that the contract was not an ‘owner-driver contract’ as defined by the OD Act, since it did not expressly require the use of a heavy vehicle. The applicant argued that, in practice, the contract predominantly involved the use of heavy vehicles, and that this was an implied term of the agreement. The Tribunal examined the contract, the surrounding commercial relationship, and the evidence provided by both parties. It was noted that the applicant owned and operated a fleet of heavy vehicles and that the majority of the work performed for the respondent involved transporting goods that could only be moved by such vehicles. The Tribunal also considered relevant case law, which clarified that a contract may be considered an owner-driver contract if the use of heavy vehicles is an express or implied term, or a necessary incident for the effective performance of the contract.

The Tribunal concluded that the contract between the applicant and respondent was, in substance, an owner-driver contract within the meaning of the OD Act. The agreement was found to be partly written and partly oral, with the use of heavy vehicles forming a necessary part of the contract.  Occasional use of light vehicles and subcontracting did not alter the overall nature of the relationship, which was predominantly for the transport of goods requiring heavy vehicles. Accordingly, the Tribunal determined it had jurisdiction to hear the application and listed the matter for a conciliation conference.

The decision can be read here.