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.