The Commission has dismissed a jurisdictional objection to the Commission hearing and determining an unfair dismissal matter. It found that as the employer was not a trading corporation and therefore not a national system employer, the Commission has jurisdiction to hear and determine the matter.

Contentions

The applicant, an employee of the WA Police Union of Workers (Union), made an application claiming unfair dismissal by the Union.

The Union objected to the Commission hearing and determining the application because it said that the Union is a trading corporation and therefore a national system employer. It argued that its Rules ‘contemplate that trading and financial activities will make up a substantial endeavour and purpose’ of the Union. It also contended that its largest source of income, membership fees, has trading characteristics.

The applicant agreed that the Union engages in some trading activities but contended that those activities are insufficient to justify the Union being characterised as a trading corporation. She argued that the Union’s purpose is to protect and further the industrial interest of its members and that charging membership fees is not a trading activity.

The applicant also said that trade unions are not ordinarily, by their nature, trading corporations and the Union had not established that it was an exception. She argued that the jurisdictional objection should be dismissed.

Findings

Commissioner Emmanuel considered the evidence and concluded that the Union is not a trading corporation. She noted that the central weakness in the Union’s case was equating the receipt of income (mostly in membership fees) with the Union being a trading corporation, without adequate explanation or identification of the trading or commercial character of the Union’s activities. Further, she observed that the Union’s submissions overstated the commercial nature of its activities.

Emmanuel C found that the sale of memberships lacks a commercial or business character and is not a trading activity. Instead, she found that receiving membership fees is an industrial advocacy activity, carried on with a view to improving the industrial interests of members.

Emmanuel C also found that other trading activities engaged in by the Union, including receiving income in exchange for rental accommodation and selling advertising space and watches, did not form a sufficiently significant proportion of the Union’s overall activities to characterise the Union as a trading corporation.

Emmanuel C found that the Union is not a national system employer. The Union’s objection to the Commission exercising its jurisdiction in this matter was dismissed.

The decision can be read here.

The Commission in Court Session (CICS) has reviewed the operation of the COVID-19 Flexible Leave Arrangements General Order and the JobKeeper General Order and has concluded that they will cease to have effect on 31 and 28 March 2021, respectively.

Leave Flexibility General Order

On 14 April 2020, the CICS issued a General Order amidst the COVID-19 pandemic to provide for flexible leave arrangements that allowed state system employees to take unpaid pandemic leave, annual leave on half-pay and annual leave in advance.

On 22 July 2020, the Commission reviewed the General Order of its own motion and extended its operation until 31 March 2020.

In mid-March 2021, the Commission further reviewed the General Order of its own motion and received responses from the parties. Except for the Chamber of Commerce and Industry of Western Australia, the parties considered that the General Order has served its purpose and ought not to continue in effect.

The CICS concluded that a further extension of the General Order is unnecessary at this time. It will cease to have effect on 31 March 2021.

This Statement can be read here.

JobKeeper General Order

On 15 May 2020, the CICS issued a General Order to provide employers with further flexibility to manage employment arrangements in a manner that supported the JobKeeper Scheme.

In mid-March 2021, the Commission reviewed the operation of the General Order of its own motion and sought responses from the parties. The parties reported that given that the General Order is directly linked to the Federal JobKeeper Scheme which ended on 28 March 2021, it was considered appropriate that the General Order cease to have effect in accordance with its terms.

It ceased to have effect on 28 March 2021.

This Statement can be read here.