The applicant filed an unfair dismissal application against the respondent, her former employer, claiming unfair dismissal as the Business Development Manager. After an unsuccessful conciliation conference, the issue arose as to whether the respondent qualified as a national system employer under the Fair Work Act 2009 (Cth), which depends on its status as a constitutional corporation. The key question was whether the respondent, despite being a not-for-profit entity, could be classified as a trading corporation, thus impacting the jurisdiction of the Commission over the applicant’s unfair dismissal application.

The respondent, through its director, argued its establishment as a joint venture business under the Browse LNG Precinct Project Agreement and presented financial details, asserting its status as a trading corporation. In contrast, the applicant, relying on Maurice Blackburn Lawyers' review, contested the respondent’s trading status, emphasising the predominance of government grants in its income and minimal trading activities. The key contention revolved around the respondent’s purpose and the nature of its activities.

Commissioner Tsang, applying legal principles considered the respondent’s purpose as outlined in its Constitution and the Browse LNG Precinct Project Agreement. Despite the respondent’s not-for-profit status, Commissioner Tsang found that its primary purpose was the advancement of social or public welfare. Examining the respondent’s activities, Commissioner Tsang scrutinised financial records, contracts, and the nature of revenue sources. Notably, Commissioner Tsang focused on the respondent’s contracts with the Department of Primary Industries and Regional Development, concluding that the significant revenue from these service-based contracts constituted substantial trading activity. Consequently, Commissioner Tsang determined that the respondent is a trading corporation, leading to the dismissal of the applicant’s unfair dismissal application due to the lack of jurisdiction.

The decision can be read here.