2023 WAIRC 00832
UNFAIR DISMISSAL APPLICATION
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00832

CORAM
: COMMISSIONER C TSANG

HEARD
:
ON THE PAPERS

DELIVERED : TUESDAY, 24 OCTOBER 2023

FILE NO. : U 52 OF 2023

BETWEEN
:
TRUDI RIDGE
Applicant

AND

MORRGUL PTY LTD
Respondent

CatchWords : Industrial Law (WA) – Whether Commission has jurisdiction over unfair dismissal claim – charity registered with Australian Charities and Notforprofits Commission – Public Benevolent Institution – Advancing social or public welfare – Revenue from government grants – trade in services – found to be a trading corporation
Legislation : Fair Work Act 2009 (Cth) ss 12, 14(1)(a), 26
Industrial Relations Act 1979 (WA)     
Result : Application dismissed
REPRESENTATION:

APPLICANT : MS T RIDGE (ON HER OWN BEHALF)
RESPONDENT : MR T NOONAN (REPRESENTATIVE)

Cases referred to in reasons:
Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2] [2008] WASCA 254
Bankstown Handicapped Children’s Centre Association Inc and Another v Hillman and Another [2010] FCAFC 11; (2010) 182 FCR 483
Budd v Aboriginal Community Housing Limtied [2019] WAIRC 00595
United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1; (2015) 228 FCR 497
Reasons for Decision
Background
1 On 4 August 2023, the applicant (Ms Ridge) filed a Form 2 – Unfair Dismissal Application against her former employer, Morrgul Pty Ltd (Morrgul), claiming unfair dismissal from her position as Business Development Manager on 14 July 2023.
2 After an unsuccessful conciliation conference, Directions were issued on 22 August 2023 for the preliminary determination of whether Morrgul is a national system employer pursuant to section 14(1)(a) of the Fair Work Act 2009 (Cth) (FW Act).
3 Section 14(1)(a) of the FW Act defines a national system employer as a constitutional corporation, so far as it employs, or usually employs, an individual.
4 Section 12 of the FW Act defines a constitutional corporation as a corporation to which paragraph 51(xx) of the Constitution applies, which relevantly refers to a trading corporation formed within the limits of the Commonwealth.
5 Section 26 of the FW Act states that the FW Act applies to the exclusion of all State or Territory industrial laws so far as they would otherwise apply to a national system employer, including the Industrial Relations Act 1979 (WA).
6 In summary, if Morrgul is a trading corporation, the Commission lacks jurisdiction over Ms Ridge’s unfair dismissal application.
The parties’ contentions
7 On 8 September 2023, Tony Noonan, a Morrgul director, filed submissions contending:
(a) Morrgul was established in 2013 as a joint venture business under the Browse LNG Precinct Project Agreement (Agreement) between the State of Western Australia, Goolarabooloo Jabirr Jabirr Peoples, Woodside Energy Limited (Woodside), Broome Port Authority and LandCorp.
(b) Initial funding was provided by Woodside under the Agreement, which was fully expended within the first five years of operation.
(c) Morrgul’s shareholders are KPP Business Development and Waardi Ltd as representative of the Jabirr Jabirr people.
(d) Morrgul is a corporation created under the Corporations Act 2001 (Cth) and registered with ASIC (the Australian Securities & Investments Commission).
(e) Morrgul’s annual revenue of circa $800,000-$1,000,000 is derived from public tenders or fees for service. Approximately 20-25% of Morrgul’s gross revenue comes from ‘direct fee for service’.
(f) Morrgul offers both free and fee-based services.
(g) Morrgul is a not-for-profit entity that aims to generate a surplus to support Aboriginal businesses in areas beyond the scope of existing contracts.
(h) Morrgul’s income is entirely from commercial activities, including open tender contracts with both State and Federal Government agencies and feebased services for a range of small Aboriginal corporations.
8 On 26 September 2023, Ms Ridge filed submissions contending:
(a) In April 2023, Morrgul’s CEO stated that Morrgul was a State-based employer.
(b) On 1 August 2023, Maurice Blackburn Lawyers reviewed Morrgul’s financial records for the period 1 July 2021 to 30 June 2022 on the Australian Charities and Notforprofits Commission (ACNC) website and advised Ms Ridge that:
Although Morrgul is incorporated, based on the information provided to the ACNC for the financial year, it appears that Morrgul is not a “trading and financial corporation”.
This was based on the review and understanding that there were virtually no goods and services actually traded.
Information provided by Morrgul to the ACNC shows that in 2022, more than 90 per cent of the dollar value was grant funded (and the 2023 financials show that more than 95 per cent was funded by grants) and also stated that 9 per cent of its revenue came from goods and services.
As noted in the 2022 financial statement (under the heading ‘other revenue’), Morrgul listed’ only one activity which could be possibly considered as trading: this is the BACLG project. The revenue stated is a mere $14,000 (2022). The two other projects listed in the accounts (the COVID boost, and a bookkeeping project) are no longer bringing in any revenue.
(c) Though some cases have found that a small proportion of a corporation’s revenue can come from trading, in Morrgul’s case, income from trading in goods and services is minimal at approximately $75,000 in 2022.
(d) Rather than providing audited financial records for 2022, Morrgul provided outdated 2021 financial records and a draft unaudited budget projection for July 2023 to June 2024, which does not appear to have been approved by Morrgul’s directors.
(e) The audited 2022 financial records show minimal trading. Revenue from the BACLG project of $14,000 amounted to less than 5% of its annual turnover of $703,000.
(f) The majority of Morrgul’s income came from government grants.
(g) Morgul’s Draft 23/24 Budget shows income of $70,000 for ‘DPIRD Pastoral Support’ as ‘Fee for service’. However, Ms Ridge’s management of the budget for pastoral clients funded by the Department of Primary Industries and Regional Development (DPIRD) (July 2022 - June 2023), involved providing governance support to pastoral clients and was not a fee for service contractual arrangement.
(h) The ACNC website shows that Morrgul is a charity with Public Benevolent Institution status, with charitable subtype status of ‘Advancing social or public welfare’.
(i) The Director’s Report to Morrgul’s Financial Report for the year ended 30 June 2021 states:
Principal Activities
The principal activity of the Company during the financial year was to offer business development and ongoing business support to Aboriginal People. Morrgul’s services are provided at no cost to community members with the ability and motivation to start their own business.
(j) During Ms Ridge’s 17 months of employment, Morrgul’s services were predominantly provided for free to community individuals and Aboriginal organisations starting businesses.
Principles
9 The Western Australian Industrial Appeal Court outlined the principles for assessing trading corporation status in Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2] [2008] WASCA 254 (ALS) [68]:
(1)  A corporation may be a trading corporation even though trading is not its predominant activity: Adamson (239); State Superannuation Board (303 - 304); Tasmanian Dam case (156, 240, 293); Quickenden [49] - [51], [101]; Hardeman [18].
(2)  However, trading must be a substantial and not merely a peripheral activity: Adamson (208, 234, 239); State Superannuation Board (303 - 304); Hughes v Western Australian Cricket Association Inc (1986) 19 FCR 10, 20; Fencott (622); Tasmanian Dam case (156, 240, 293); Mid Density (584); Hardeman [22].
(3)  In this context, ‘trading’ is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services: Kuringgai (139, 159 - 160); Adamson (235); Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169, 184 - 185, 203; Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325, 330; Quickenden [101].
(4)  The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant: St George County Council (539, 563, 569); Kuringgai (140, 167); Adamson (219); E (343, 345); Pellow [28].
(5)  The ends which a corporation seeks to serve by trading are irrelevant to its description: St George County Council (543, 569); Kuringgai (160); State Superannuation Board (304 - 306); E (343). Consequently, the fact that the trading activities are conducted [in] the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as ‘trade’: St George County Council (543) (Barwick CJ); Tasmanian Dam case (156) (Mason J).
(6)  Whether the trading activities of an incorporated body are sufficient to justify its categorisations as a ‘trading corporation’ is a question of fact and degree: Adamson (234) (Mason J); State Superannuation Board (304); Fencott (589); Quickenden [52], [l01]; Mid Density (584).
(7)  The current activities of the corporation, while an important criterion for determining its characterisation, are not the only criterion. Regard must also be had to the intended purpose of the corporation, although a corporation that carries on trading activities can be found to be a trading corporation even if it was not originally established to trade: State Superannuation Board (294 -  295, 304 - 305); Fencott (588 - 589, 602, 611, 622 - 624); Hughes (20); Quickenden [101]; E (344); Hardeman [18].
(8)  The commercial nature of an activity is an element in deciding whether the activity is in trade or trading: Adamson (209, 211); Kuringgai (139, 142, 160, 167); Bevanere (330); Hughes (19 - 20); E (343); Fowler; Hardeman [26].
10 ALS has been cited with approval in subsequent appellate court decisions: Bankstown Handicapped Children’s Centre Association Inc and Another v Hillman and Another [2010] FCAFC 11, (2010) 182 FCR 483 (Bankstown) [48] and United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1; (2015) 228 FCR 497 (UFU) [70].
11 In Bankstown, the Full Court of the Federal Court recognised trading activities with a commercial character, even where the purpose for the activities is the provision of public welfare services:
54 If those substantial activities can be characterised as trading, then the Association can likewise be characterised as a trading corporation. So much is apparent from the authorities including, in this Court, the judgment of the Full Court in Quickenden (at [51]). The Association undoubtedly provided services to the State and was remunerated for doing so. It is, in our opinion, a proper characterisation of the Association’s activities to describe them as selling those services to the State and, correspondingly, the State purchasing them. Indeed that was the language used in the header agreement which governed the contractual arrangements between the Association and DOCS. The provision of a given service under the header agreement resulted in an invoice from the Association to DOCS which it then paid. The prices at which the services were provided were negotiated between the parties having regard to the price at which others provide similar services. The Association employed personnel and acquired rental property to equip it for the task of providing those services. At least in its then manifestation (entailing its size, activities, property and personnel), its continued existence depended on its success in placing itself in a position in which it would continue to be remunerated by continuing to provide those services.
55 All these matters appear to us to point to a relationship between the Association and DOCS as having been a commercial one involving trade in services. It is, of course, true that it is possible to characterise, as the Industrial Court did, the Association’s activities as the provision of public welfare services. However the fact that the acquisition of these services by DOCS was for this purpose does not appear to us to detract from the essentially commercial nature of the relationship. It is properly so described. There may be many incorporated charitable bodies in Australia which are nevertheless trading corporations for the purposes of paragraph 51(xx) of the Constitution. As we have noted above, the terms of the header agreements were negotiated, as were the terms of the renewal header agreement. Ultimately by that process, further negotiation as to price was not then undertaken. Thereafter, DOCS did not have to use the services of the Association at all, and the Association for its part did not have to accept any offer or request by DOCS to provide such services. On the evidence, DOCS selected those entities which it wished to provide services, once the header agreements were negotiated, on the basis of the quality of the service to be provided, but the Association (or others) did not have to agree to provide them. It is distracting to note that the services which the Association and others contracted with DOCS to provide were in the “welfare sector” of the economy, to use an expression used by the Solicitor-General.
12 In UFU, the Full Court of the Federal Court upheld the primary judge’s finding that the Country Fire Authority (CFA) was a trading corporation, in circumstances where the CFA was a ‘volunteer and community based fire and emergency services organisation’, that received about $12.93 million in revenue from trading activities, which amounted to 2.7% of its total revenue:
135 We do not accept that the primary judge applied the wrong test, as contended for by the CFA. An important question is whether the corporation’s trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation: see Adamson at 233 per Mason J. The same approach was taken in State Superannuation Board at 305 per Mason, Murphy and Deane JJ where their Honours referred to the nature and the extent or volume of a corporation’s activities needed to justify its description as a [trading] corporation. See also the Tasmanian Dam Case at 156 per Mason J; at 179 per Murphy J, at 240 per Brennan J and at 293 per Deane J.
136 Answering that question does not simply involve the application of a formula or equation nor the substitution of percentages or other measures of monetary value as between the activities found to be trading activities and the activities not so found. The purpose for which a corporation is formed is not the sole or principal criterion of its character as a trading corporation and the Court looks beyond the “predominant and characteristic activity of the corporation.” We refer again to the nature and the extent or volume of a corporation’s activities needed to justify its description as a trading corporation. The relationship between the activities relied upon and the overall activities of the corporation, and the extent of those activities in comparison with the extent of the corporation’s activities overall are relevant. In our opinion, this was the approach taken by the primary judge.
137 If a corporation, carrying on independent trading activities on a significant scale, is properly categorised as a trading corporation that will be so even if other more extensive non-trading activities properly warrant it being also categorised as a corporation of some other type: see State Superannuation Board at 304. In our view, this proposition answers in large part the submissions put as to the public purpose of the CFA. As we have said, the issue is one of characterisation and is a matter of fact and degree.
Consideration
13 Applying the principles in ALS, Bankstown and UFU requires a determination of Morrgul’s purpose and the nature and extent of Morrgul’s activities.
Morrgul’s purpose
14 Morrgul’s Constitution, from the ACNC website, states that Morrgul is a company limited by shares.
15 Morrgul’s purpose is outlined in clause 4.3 of the Constitution:
4.3 The Company is established for the purpose of:
(a) providing assistance to Indigenous people with respect to the following activities:
(i) capacity building;
(ii) starting up and running businesses;
(iii) applying for loans relating to starting, running or operating a business or otherwise relating to the matters set out in sub-paragraphs (i), (ii), (iv) or (v) or of this clause 4.3(a);
(iv) increasing capability in tendering for contracts and other business development initiatives; or
(v) taking advantage of employment and contracting opportunities connected with the LNG Precinct;
(b) conducting the activities set out in clause 4.3(a) over the long term in an efficient and effective manner; and
(c) being and fulfilling the requirements of the Business Development Organisation.
16 Clause 1.1 contains the following definitions:
Business Development Organisation has the meaning given in the PPA.
Company Purpose has the meaning given in clause 4.3.
PPA means the Browse LNG Precinct Project Agreement dated 30 June 2011 between:
(a) the State of Western Australia;
(b) the Minister for Lands;
(c) the Land Authority of Western Australia;
(d) the Broome Port Authority;
(e) Woodside; and
(f) the Native Title Party,
as amended from time to time.
17 The Browse LNG Precinct Project Agreement (PPA) provides Native Title Party consent for the establishment and operation of the Browse LNG Precinct within the Agreement area and provides benefits to the Native Title Party through corporate entities established under the Agreement. Morrgul is a Business Development Organisation established under the Agreement engaged in business development capacity building for Indigenous people.
18 Based on a review of Morrgul’s Constitution and the PPA, I find that Morrgul’s purpose is the advancement of social or public welfare, which is consistent with its declaration to the ACNC.
19 A social or public welfare purpose will not ‘detract’ from an organisation being found to be a trading corporation if the corporation’s activities are substantially of a commercial nature: Bankstown [55]; UFU [136].
Morrgul’s activities
20 I do not consider that Morrgul providing its 2021 instead of 2022 financial records to be material. Both documents are readily available on the ACNC website.
21 The Statement of Financial Performance for the year ended 30 June 2022 shows that 93.0% of Morrgul’s revenue in 2021, and 90.7% in 2022, derives from ‘Grants and contributions provided’:


Notes
2022
$

2021
$
OPERATING REVENUE




Grants and contributions provided
3a
733,942

755,214
Interest received

3

66
Other operating revenues
3b
75,515

56,677
User charges & fees
3c
-

-
Gain on sale of Assets
5
-

-


809,460

811,957





OPERATING EXPENSES




Depreciation & amortisation
4c
7,887

2,459
Employee costs
4a
485,130

248,479
Other operating expenses
4d
393,118

520,714


886,135

771,652





CHANGE IN NET ASSETS FROM OPERATIONS

(76,675)

40,305

22 Note 4a, 4c and 4d to the Financial Statements for the year ended 30 June 2022 (Note) breaks down the ‘Operating Expenses’ into sub-categories:

2022
$

2021
$
4a EMPLOYEE COSTS



Salary and wages
444,073

230,688
Superannuation
41,057

17,081
Other Employment Allowances
-

710

485,130

248,479




4b INTEREST - no further details required
3

66




4c DEPRECIATION



Computer & Equipments
82

110
Motor Vehicle
7,804

2,349

7,887

2,459




4d OTHER OPERATING EXPENSES



Accounting & Bookkeeping
727

17
Advertising & Marketing
294

1,532
AET & Ppivot Discretionary Grant & Program
14,352

1,800
APAS Bus Essentials Toolkit
-

7,182
ASIC Fees
163

-
Assets under $20k
5,930

-
Audit
4,950

4,750
Bank Charges
464

1,806
Bidyadanga Projects
3,980

21,079
Business Development Services
16,390

36,039
Cleaning & Pest Control
3,050

3,430
DOF - Client Services
5,226

37,937
DOF Bus Essentials Toolkit
-

7,481
DPIRD Client Services
61,371

200,861
Electricity Expenses
2,119

306
Freight & Delivery
-

1,359
Insurance Expenses
5,783

5,441
Mayala PBC Project
53,746

-
Minor Computer & Office Equipment
-

5,619
Motor Vehicle Cost
4,825

5,546
NIAA Support
1,102

63,798
Non Executive Director Fees / Acting CEO Fees
57,800

16,364
Printing, Postage & Stationary
3,610

4,073
Rates
1,547

1,184
Rent
28,550

18,200
Repairs & Maintenance
5,762

417
Subcontractors
95,272

59,622
Subscriptions & Membership
3,445

1,809
Telephone
5,665

2,640
Travel, Accommodation & Conferences & Relocation
7,005

10,442

393,118

520,714

23 The expenditures appear to accord with Morrgul’s obligation under clause 4.4 of the Constitution to apply its income and property towards its purpose:
4.4 Subject to clauses 4.5 and 4.6, the income and property of the Company must be applied solely towards the Company Purpose and no part of that income or property may be paid, transferred or distributed, directly or indirectly, by way of dividend, bonus, profit, fee or otherwise, to any Director or Member.
24 Note 3a shows that 100% of Morrgul’s revenue from ‘Grants and contributions provided’ in 2021 and 2022 derived from ‘Government grants’, and Note 3b breaks down ‘Other operative revenues’ into different projects:

2022
$

2021
$
3a GOVERNMENT GRANTS RECOGNISED AS REVENUE



RECURRENT GRANTS
733,942

755,214
Sub total recurrent grants
733,942

755,214




CAPITAL GRANTS
-

-

-

-




Transfer from (to) unexpected grant liability
-

-

733,942

755,214




3b OTHER OPERATING REVENUE



ATO COVID 19 Cashboost
-

15,990
BACLG Project
14,935

17,528
Bookkeeping Income
19,012

11,302
Donations – General Public
100

-
ENAC Projects
17,655

-
GAC Projects
710

-
LDPAC (MLCS) Projects
7,754

-
Mayala PBC Projects
1,828

-
Ngunga Womens Grp Funds
674

10,000
NSW ALC – Wilcannia Store
4,940

-
Other Income
7,907

1,857

75,515

56,677

25 The Chairperson’s Letter to the Financial Report for the year ended 30 June 2021 refers to the contracts delivered, specifically naming the Aboriginal Procurement Advisory Service (APAS) contract with the Department of Primary Industries and Regional Development (DPIRD):
Morrgul continues to deliver procurement programs on behalf of the WA Government that align with the State’s Aboriginal Procurement Policy. The Aboriginal Procurement Advisory Service (APAS) is Morrgul’s flagship procurement service that covers all regional WA. It is funded by the Department of Primary Industries and Regional Development (DPIRD) is and complemented by the Aboriginal Business Capability program, which is a training program for the Kimberley, funded by the Department of Finance. Morrgul also services individual contracts for the National Indigenous Australians Agency (NIAA).
…
Morrgul has expanded and extended its reach over the last financial year. Winning a DPIRD contract to support new and existing businesses on the Dampier Peninsula, coupled with the securing of funding from NIAA to support Aboriginal businesses in the central and the East Kimberley has again extended the business support we can offer Aboriginal businesses and start ups in our region.
26 The Chairperson’s Letter to the Financial Report for the year ended 30 June 2022 refers to Morrgul securing a Pastoral Governance contract with DPIRD, and extending the Dampier Peninsula Activation Project contract:
In October 2021, Morrgul secured the Pastoral Governance Contract with the Department of Primary Industry and Regional Development and an extension of the Dampier Peninsula Activation Project. These programs complement Morrgul’s contract with the WA Government to deliver Aboriginal procurement advisory, training and support services across regional WA. These programs enhance Morgul’s operations and extend the breadth of services provided to aspiring and existing Aboriginal businesses across the State.
27 Morrgul provided the Commission with a copy of the Request to submit an offer for the APAS contract (Request) issued by DPIRD with a closing time of 2.30pm on 4 May 2022.
28 Paragraph 2.1 of the Request states:
2.1 Selection Process
Achieve Value for Money is a key Western Australian Procurement Rule. It ensures that when purchasing Goods and/or Services, State Agencies achieve the best possible outcome, for every dollar spent, by assessing the costs and benefits of, and the risks inherent in, an Offer, rather than simply selecting the lowest Offered Price.
In determining value for money, the Contract Authority or Customer will:
a). apply relevant Western Australian Procurement Rules and Government policies and priorities, including those referenced in the Western Australian Social Procurement Framework, to the assessment of Offers;
b). require Offers to meet the Pre-Qualification Requirements in Section 3 in Part B;
c). assess Offers against the Compliance and Disclosure Requirements in Section 4 in Part B;
d). assess Offers against the Qualitative Requirements in Section 5 in Part B;
e). assess Offers against the Insurance Requirements in Section 6 in Part B; and
f). assess the Offered Prices, which includes assessing the Offered Price and Pricing Requirements in Schedule 3.
The determination of value for money will require a consideration of all of the above factors and any other matters that the Contract Authority or Customer considers relevant.
29 Schedule 3 – Pricing of the Request (Schedule 3) requires Morrgul to complete and include Schedule 3 in its Offer, state its Offered Price (which includes the Hourly Rates, presumably for the personnel delivering the services) and the basis for the pricing, and requires any assumptions made in pricing to be clearly stated. Schedule 3 requires pricing to ‘be detailed and transparent, and clearly link to the methodology milestones and effort’.
30 Schedule 3 also requires Morrgul to state if it is prepared to offer a discount if DPIRD pays a Morrgul invoice either within 7 days or within 14 days of the date of the invoice, and if so the quantum of the discount.
31 Sections 4 and 5 and Schedule 3 outlines DPIRD’s right to reject Morrgul’s offer:
4. Compliance and Disclosure Requirements
The Contract Authority or Customer will, in its value for money assessment, consider the extent to which the Offer satisfies the following Compliance and Disclosure Requirements. The Contract Authority or Customer reserves the right to reject any Offer that does not properly address any of the Compliance and Disclosure Requirements, and/or which contains material departures from the Customer Contract Details and/or General Conditions.
5. Qualitative Requirements
The Contract Authority or Customer will, in its value for money assessment, consider the extent to which the Offer satisfies the following Qualitative Requirements. The Contract Authority or Customer reserves the right to reject any Offer that does not properly address and satisfy any of the Qualitative Requirements.
The Qualitative Requirements are not weighted equally. Refer to the % weighting (xx% weighting) for each Requirement listed below.
Schedule 3 – Pricing
The Customer will, in its value for money assessment, consider the extent to which the Offer satisfies the following Offered Price and Pricing Requirements. The Customer reserves the right to reject any Offer that does not properly address and satisfy any of the Offered Price and Pricing Requirements.
32 On 27 July 2022, DPIRD wrote to Morrgul to confirm that it had accepted Morrgul’s offer for the APAS contract. DPIRD advised that the letter constituted the agreement between the parties, and that the agreement was for a 3-year term, from 1 August 2022 to 31 July 2025, with two one-year extension option(s) at the absolute discretion of DPIRD.
33 Like Bankstown [54], the price at which Morrgul offered to provide its services under the APAS contract was negotiated, and DPIRD was free to accept or reject Morrgul’s offer. Further, the terms of the Request indicate that Morrgul contracted to sell its services to DPIRD, and DPIRD contracted to purchase those services from Morrgul.
34 Like Bankstown [55], I find the relationship between Morrgul and DPIRD as having been a commercial one involving trade in services.
35 Morrgul’s status as a registered Public Benelovent Institution does not change this relationship: Budd v Aboriginal Community Housing Limtied [2019] WAIRC 00595 (Budd).
36 In Budd, Walkington C found Aboriginal Community Housing Limtied (ACHL) to be a trading corporation in the following circumstances:
(a) ACHL was a public benevolent institution providing charitable housing to address financial disadvantage, and physical, social or psychological needs.
(b) 98% of ACHL’s income for the year ending 30 June 2018 was payment for the provision of housing management services to nominated Aboriginal communities under an arrangement with the Department of Housing (DOH). The arrangements with DOH commenced in 2012 through a Service Agreement and subsequently through a tender process conducted in 2014 and 2015. The tender process involved ACHL submitting a competitive bid nominating a price for services to be provided by it.
(c) In 2015, DOH accepted ACHL’s offer for the Request For Housing Management Services to Remote Aboriginal Communities. The Request for Tender (RFT) completed by ACHL included prices proposed by ACHL for the provision of services for two regional areas. DOH was free to accept or reject ACHL’s proposed prices.
(d) The RFT stated that DOH ‘is seeking to engage Contractors under new contractual arrangements from 1 July 2015’. Section 2 of the RFT set out the Selection process including the ‘Value for Money’ criteria which included several considerations. One of the criteria was an assessment of the ‘Offered Prices and Pricing Requirements in Schedule 3’. The tenderer was required to complete the worksheet ‘Schedule 3Pricing’ with their price data for ‘price (by Zone)’, ‘Volume Discount’ and ‘Transition In (by Zone)’.
(e) Schedule 3 of the RFT set out the conditions of the price offered by the tender respondent and stated that ‘The Customer, DOH reserves the right to reject any Offer that does not properly address and satisfy any of the Offered Price and Pricing Requirements’.
(f) The weighting given by DOH to the ‘Offered Price’ against the other selection criteria, such as quality of service, was unknown. However, it was evident that price was an important consideration and DOH specifically reserved the right to reject the proposal on this basis.
37 Note 2b shows that in 2022, Morrgul received $174,730 from the APAS contract. This amounted to 23.8% of ‘Government grants’ of $733,942 and 21.6% of total revenue of $809,460:
2B SCHEDULE OF FUNDING

















Name of Grant
Year
Unexp.
01-Jul-21
$

Released

$

Expend.

$

Unexp.
30-Jun-22
$
- PIVOT Discretionary
21/22
-

9,955

9,955

-
- Department of Finance
21/22
-

42,545

42,545

-
- Department of Finance - Client Services
21/22
-

200,999

200,999

-
- Dept of Regional Development - APAS Extension
21/22
-

174,730

174,730

-
- Dept of Regional Development - Dampier Peninsula
21/22
-

146,405

146,405

-
- Dept of Regional Development - Pastoral Support
21/22
-

95,000

95,000

-
- Dept of Regional Development - New Projects
21/22
-

22,308

22,308

-
- NIAA Admin Funds Mayala Aboriginal Corp
21/22
-

42,000

42,000

-


-

733,942

733,942

-

38 Note 2b also shows that in 2022, Morrgul received:
(a) $146,405 from the Dampier Peninsula contract with DPIRD, which amounted to 19.9% of ‘Government grants’ of $733,942 and 18.1% of total revenue of $809,460.
(b) $95,000 from the Pastoral Support contract with DPIRD, which amounted to 12.9% of ‘Government grants’ of $733,942 and 11.7% of total revenue of $809,460.
(c) $22,308 from ‘New Projects’ with DPIRD, which amounted to 3.0% of ‘Government grants’ of $733,942 and 2.8% of total revenue of $809,460.
39 Collectively, the contracts with DPIRD totalled $438,443, which amounted to 59.7% of ‘Government grants’ and 54.2% of total revenue.
40 There is no evidence before the Commission indicating that DPIRD’s procurement process for the APAS contract differed to that for the Dampier Peninsula, Pastoral Support and ‘New Projects’ contracts.
41 Therefore, I find that all of Morrgul’s revenue from DPIRD contracts constitutes revenue from service-based trade.
42 As this trading activity is ‘a substantial and not merely a peripheral activity’, I find that Morrgul is a trading corporation.
Conclusion
43 For the preceding reasons, I find that Morrgul is a trading corporation.
44 Therefore, the Commission lacks jurisdiction over Ms Ridge’s unfair dismissal application.
45 Consequently, application U 52 of 2023 will be dismissed.