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.