OVIS COMMUNITY SERVICES ENTERPRISE AGREEMENT 2025

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00859

DELIVERED : wEDNESDAY, 15 October 2025

FILE NO. : AG 25 OF 2025

Applicant

AND

Western Australian Municipal, Administrative, Clerical and Services Union of Employees

Respondent

CatchWords : Industrial Law (WA) – Whether the Commission has jurisdiction over the application to register the Ovis Community Services Enterprise Agreement 2025 – Whether the applicant is a trading corporation – Applicant found to be a trading corporation

Legislation : Industrial Relations Act 1979 (WA)

Fair Work Act 2009 (Cth) ss 12, 14(1)(a), 26(1)–(3), 27 

Result : Application dismissed

Representation

Applicant : Mr S Farrell (as agent)

Respondent : Mr C Fogliani (of counsel)

Cases referred to in reasons:

Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254

Aboriginal Legal Service of Western Australia (Inc) v Lawrence [2007] WAIRC 00435

Bankstown Handicapped Children’s Centre Association Inc v Hillman [2010] FCAFC 11

Ridge v Morrgul Pty Ltd [2023] WAIRC 00832

United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC 1

Reasons for Decision

Background

1         On 21 March 2025, the applicant filed an application to register the Ovis Community Services Enterprise Agreement 2025 (Application).

2         Section 14(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) defines a national system employer as ‘a constitutional corporation, so far as it employs, or usually employs, an individual’.

3         Section 26(1) of the FW Act states that the FW Act applies to the exclusion of all State or Territory industrial laws concerning national system employees and national system employers.

4         Sections 26(2) and (3) of the FW Act define a State or Territory industrial law to include the Industrial Relations Act 1979 (WA).

5         Section 27 of the FW Act outlines exclusions to the application of s 26 of the FW Act, which does not include the registration of industrial agreements.

6         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.

7         Consequently, as the applicant is a corporation, the Commission can only hear and determine the Application if the applicant is not a trading corporation.

The evidence

8         On 9 September 2025, the Chief Executive Officer (CEO) of OVIS Community Services (OVIS) filed an affidavit, stating:

(a)               OVIS is the trading name for the applicant, and has been since the applicant underwent a rebranding process in 2020.

(b)               OVIS provides services to women experiencing family and domestic violence.

(c)               OVIS is mainly funded through state government grants to provide its services to the community.

(d)               The audited financial statements for OVIS for the year ending 30 June 2025 indicate:

(i)                 OVIS received nearly $7.5 million in government grants.

(ii)              The amounts received from clients for rent at Pat Thomas Refuge, Warlang Bidi and transitional house under the line item ‘Receipts from customers’ under the heading ‘Cash flows from operating activities’.

(e)               OVIS delivers the following programs on behalf of the State Government’s Department of Communities (Department):

(i)                 Pat Thomas Refuge.

(ii)              Domestic Violence Outreach – Peel Region.

(iii)            Peel Advocacy and Support Service.

(iv)            Family Domestic Violence Primary Prevention Program, Safe Futures.

(v)               Warlang Bidi Therapeutic Refuge.

(f)                OVIS also receives income by being engaged to provide Community Mobile Outreach Services with The Lucy Saw Centre Association and by providing transitional housing support.

(g)               OVIS also receives grants/donations from QBE Insurance Group Ltd (QBE) and Alcoa of Australia Ltd (Alcoa).

Pat Thomas Refuge

(h)               The Pat Thomas Refuge is a property owned by the WA Government and leased to OVIS, as part of the applicant’s provision of crisis accommodation to women and children experiencing family and domestic violence.

(i)                 Clients are charged a nominal amount of $100 per adult and $20 per child in rent, the purpose of which is to prepare the client for life after they leave the refuge, given rent is a usual expense incurred in society.

(j)                 Receipt of services and the ability to live in the refuge is not conditional on the payment of monies, as clients who do not or cannot pay are still accommodated and provided with services.

(k)               On 1 October 2009, the Department and OVIS entered into a Service Agreement, which was extended in 2012 and 2014. The agreement provides OVIS with a fixed amount, varied only by indexation of the amount.

(l)                 In 2015, the Department advertised a ‘Preferred Service Provider Request’, seeking eligible providers to tender for the delivery of services at Pat Thomas Refuge for the fixed fee of $788,011 per annum. OVIS was the only provider to respond to the request.

(m)            Consequently, the Department and OVIS entered into a Service Agreement for the period October 2015 to June 2017, which was extended for a 12‑month period in 2017, 2018, 2019, 2020 and 2021.

(n)               On 30 March 2022, the Department extended the agreement for a further period of five years.

Domestic Violence Outreach – Peel Region

(o)               The Domestic Violence Outreach program is an early intervention program aimed at breaking the cycle of family and domestic violence and preventing homelessness for women and children.

(p)               Referrals are primarily received from WA Police and the Family and Domestic Violence Coordinated Response Team, along with community organisations and self‑referrals.

(q)               The program offers a ‘wrap‑around’ service in collaboration with other agencies, helping women improve their knowledge, skills and confidence. Through client‑driven risk assessments and safety planning, women are supported to make informed decisions about their safety and the safety of their children.

(r)                Over the past year, women have been referred to a wide range of services including assistance with housing, homelessness, health, mental health, and disability services.

(s)                The Service Agreement between the Department and OVIS dated 16 August 2010 indicates it is a fixed funding contract. In June 2012, the base funding was increased and the contract was renewed on a yearly basis until 30 June 2022.

(t)                 On 1 July 2022, the Department extended the agreement for a further period of five years.

Peel Advocacy and Support Services

(u)               Peel Advocacy & Support Services is a free (to clients) service, offering support and advocacy to women and children seeking Family Violence Restraining Orders, which is funded through a grant from the Department.

(v)               The Service Agreement between the Department and OVIS dated 18 September 2009, indicates it is a fixed funding contract. The contract has been extended by the Department on numerous occasions, with the current extension expiring 30 June 2027.

Warlang Bidi

(w)             Warlang Bidi is the first therapeutic refuge in Western Australia, designed to provide a safe and supportive environment for women and children with complex needs. The core focus of the refuge is the support for women being impacted by family and domestic violence, but the model is also designed to support women with co‑occurring significant mental health concerns and/or alcohol or other drug harm, through onsite counselling, refuge support, children’s services and community outreach working with a trauma‑informed therapeutic approach.

(x)               Accommodation is typically provided for six to 12 months.

(y)               Clients are charged a nominal amount of $100 per adult and $20 per child in rent, the purpose of which is to prepare the client for life after they leave the refuge, given rent is a usual expense incurred in society.

(z)               Receipt of services and the ability to live in the refuge is not conditional on the payment of monies, as clients who do not or cannot pay are still accommodated and provided with services.

(aa)            OVIS submitted a grant application to the Department. OVIS’ offer was accepted by the Department, and the parties entered into a fixed funding Service Agreement dated 30 August 2020, which has been extended until 31 December 2025.

Family Domestic Violence Primary Prevention Program – Safe Futures

(bb)           Safe Futures is a standalone program funded under the Department’s Primary Prevention Grants, designed to provide tailored primary prevention education to culturally and linguistically diverse community members, Aboriginal and Torres Strait Islander community members, and workers who support these communities.

(cc)            The Service Agreement between the Department and OVIS dated 30 August 2024 indicates it is a fixed funding contract.

Mobile Community Outreach Services

(dd)           The Mobile Community Outreach program, delivered in partnership with the Lucy Saw Centre and Zonta House, provides crucial support across all five local government areas of the Peel region, including Shire of Serpentine Jarrahdale, City of Mandurah, Shire of Murray, Shire of Waroona and Shire of Boddington. The program ensures women can access place‑based services without needing to commute to OVIS’ central offices located in Mandurah.

(ee)            OVIS provides women with risk assessments, safety plans, family domestic violence education and referrals to a wide range of other specialist agencies.

(ff)             The Lucy Saw Centre is the lead organisation contracted by the Department and are responsible for delivering the outcomes required by their contract. OVIS is sub‑contracted by the Lucy Saw Centre to assist it in delivering those outcomes. Accordingly, the Lucy Saw Centre disburses some of its funds to OVIS.

Transitional Housing

(gg)           OVIS provides support to women and children through three transitional houses, accommodating one family in each house. The usual period of residency is 12 months.

(hh)           One of the houses was bequeathed to OVIS. Clients pay OVIS community housing rent, calculated using a government determined calculation, based on their income. The rent received is allocated to the cost of utilities and the costs of maintaining the properties, which exceeds the income received.

(ii)              The other two houses are owned by a Community Housing Provider. Clients pay the provider rent, and OVIS provides the case management support for the duration of the tenancy.

Grants/Donations from QBE and Alcoa

(jj)              OVIS applied for, and received, a $40,000 grant from QBE in September 2024, through the QBE Foundation to support OVIS’ Freedom to Flourish program.

(kk)           OVIS applied for, and received, a grant from Alcoa on 15 March 2024, to assist in the running of the Pinjarra Women’s Centre, where various community services can co‑locate and offer a seamless ‘wrap‑around’ service to clients.

The parties’ contentions

9         The parties contend that the applicant is not a trading corporation.

10      The applicant contends that:

(a)               OVIS is the trading name of the applicant. In 2020, the applicant underwent a rebranding exercise, and thereafter, markets itself as OVIS.

(b)               The applicant is incorporated under the Associations Incorporations Act 2015 (WA).

(c)               The applicant is registered as a not‑for‑profit charity by the Australian Charities and Not‑for‑profits Commission.

(d)               The applicant’s activities (consistent with clause 3 of its Constitution) are the provision of support to women and families who are experiencing domestic and family violence, including counselling, housing and refuge.

(e)               The applicant’s position is apposite to the Aboriginal Legal Service, as described by the Full Bench of the Commission in Aboriginal Legal Service of Western Australia (Inc) v Lawrence [2007] WAIRC 00435:

The providing of the legal service is not just the predominant activity of the appellant. It permeates through and enshrouds all that it does. The obtaining of funds from the department, although involving trading, is not an independent trading activity to enable the appellant to carry out a non trading activity. The two are inextricably linked. The funds obtained are required to be used for an activity which is not trading. This affects the extent, in a qualitative sense, of the trading with the department as against the activities of the appellant as a whole. When the activities of the appellant are considered as a whole, in the words of Mason J in Adamson [R v The Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190] trading activities do not ‘form a sufficiently significant proportion of its overall activities to merit its description as a trading corporation’. Put slightly differently, to use the process of Toohey J in Hughes [v Western Australian Cricket Association Inc (1986) 19 FCR 10], from evaluating the extent of the trading activities against the totality of activities, we have reached the conclusion that the trading activities are not so significant to give the appellant ‘the character of a trading corporation’.

(f)                The applicant derives income from three sources:

(i)               Grants from WA Government departments.

(ii)             Donations/bequests.

(iii)          Rent from clients at Pat Thomas Refuge and transitional housing.

(g)               The Pat Thomas Refuge program has been funded and delivered by the applicant for decades, and the Department has not sought to test the market to ascertain whether there are providers, other than the applicant, who can provide the same service.

(h)               The same can be said for the Domestic Violence Outreach program, which has been delivered by the applicant since 2010, with the funding arrangements extended on numerous occasions, without the Department going to market.

(i)                The applicant is funded to provide the services to the community.

(j)                The applicant applied for the remaining grants.

(k)               The Warlang Bidi Therapeutic Refuge involved a competitive tender. While corporations that have tendered for government work have been found to be trading corporations (Ridge v Morrgul Pty Ltd [2023] WAIRC 00832 (Morrgul)), the applicant’s position can be distinguished from Morrgul, because the contracts and grants the applicant tendered for were for a fixed price set by the Department. The applicant’s position is akin to Kenner C’s finding, cited by the Industrial Appeal Court (IAC), that the purpose of the government’s tender process was to ensure efficiency and accountability, in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) [2008] WASCA 254 (ALS) [24]:

Commissioner Kenner, at first instance, made an uncontested finding that the evidence established that the request for tender was not put out in order to obtain bids based upon competitive prices. Rather, the Department set the amount of funding available over the term of the proposed contract. There is no real contest between the parties concerning the fact that the purpose of the tender process was to ensure, as best that could be done, that there would be greater accountability and efficiency in the expenditure of the legal aid funding provided by the Commonwealth.

(l)                The donations from QBE and Alcoa are not trading activities, as the donations were received for the purpose of supporting the applicant’s programs, and not in exchange for the applicant’s services to QBE and Alcoa.

(m)            The applicant accepts that the rent received from transitional housing is a trading activity.

(n)               However, the rent received from Pat Thomas Refuge is not a trading activity, because, firstly, the provision of accommodation and services is not conditional on the client paying rent. Secondly, the rent is a nominal charge and not derived from usual rental market forces, such as demand and location. Thirdly, the rent is not a commercial activity but one that supports the objects of the applicant by preparing its clients for life outside of the refuge. In any event, the rent received is not substantial or significant, totalling less than 2% of the applicant’s income.

(o)               While ‘there is no bright line delineating what is or is not a trading corporation’, and a corporation that provides services to the State and is remunerated for doing so has been found to be a trading corporation (Bankstown Handicapped Children’s Centre Association Inc v Hillman [2010] FCAFC 11 (Bankstown)), the applicant can be distinguished from Bankstown. This is because the applicant’s charging of rent is incidental to the purpose of the applicant’s existence and operations; there is no negotiation between the client and the applicant over the rent charged.

11      The respondent contends that:

(a)               It is uncontroversial that the applicant became a body corporate when it was incorporated under the Associations Incorporation Act 2015 (WA).

(b)               While there is nothing in the applicant’s Constitution indicating that the applicant’s purpose is to engage in trading activities, there is also nothing in the Constitution preventing the applicant from engaging in trading activities. Indeed, some of the powers in clause 4.1 of the Constitution could be used to engage in trading activities.

(c)               The applicant provides services to women experiencing family and domestic violence. Its activities are not intended to be profit‑generating. While being benevolent is not determinative of whether a corporation is a trading corporation, it is a relevant consideration that should be taken into account in resolving the question in relation to the applicant, that the applicant is a benevolent organisation.

(d)               The predominant source of the applicant’s revenue is state government grants. The applicant has also received grants from QBE and Alcoa. The purpose of the grants was to fund the applicant’s various benevolent activities that it provides to assist women who are experiencing family and domestic violence. None of the applicant’s activities, could be described as commercial in nature, nor could any of the grant revenue be described as being linked to any trading activity.

(e)               The applicant’s CEO has deposed to the applicant receiving revenue from clients in the form of nominal rent and utility fees. Aside from in relation to the transitional house owned by the applicant, the charges are optional, and the clients are not required to pay them, with clients still provided with accommodation and services. Further, the fees charged to clients are nominal. The purpose of the charge is to prepare clients for life after the refuge and to teach them how to live independently. Given the nature of the charges, they do not possess a commercial quality, and it would be a stretch to shoehorn that source of revenue into the category of trading activities.

(f)                The transitional house is different in that rent is charged based on a ‘government determined calculation’ that is relevant to the client’s income. However, the rent is described as being insufficient to cover the costs of utilities and maintenance of the property. How that activity is classified (i.e. trading or non‑trading) is something in which reasonable minds could differ. On the one hand, the nature of the transitional house could be described as uncommercial, as it is a loss‑generating activity that no commercially‑driven entity would continue. On the other hand, the rent collected subsidises the applicant’s existing expenses in maintaining the transitional house and that could be described as a commercial activity.

(g)               None of the applicant’s activities could be properly described as trading activities. There is nothing commercial about the work done by the applicant.

(h)               In the alternative, any trading activities engaged in by the applicant, are merely peripheral activities vis-à-vis its primary activity of providing services to women experiencing family and domestic violence.

(i)                 The applicant’s revenue for 2024 and 2025 follows, and the revenue the applicant received from grant income dwarfs all other aspects of its revenue:

(j)                 The applicant’s activities could most accurately be described as the gratuitous provision of a public welfare service, substantially at government expense: E v Australian Red Cross Society [1991] FCA 20 [123].

(k)               Furthermore, the purpose of collecting rent from clients (which, except in the case of transitional housing, is an optional payment), is to assist clients in transitioning back into life after living in the refuge, as opposed to the pursuit of a commercial activity. This supports a finding that the rental revenue is merely a peripheral activity.

Consideration 

12      The relevant legal principles for determining whether a corporation is a trading corporation are oft‑cited. The principles set out in Morrgul [9]–‍[12] are replicated below.

Principles

9 The [IAC] outlined the principles for assessing trading corporation status in [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: Ku‑ring‑gai (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); Ku‑ring‑gai (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); Ku‑ring‑gai (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); Ku‑ring‑gai (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] [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.

13      The applicant argues that its position is akin to the Aboriginal Legal Service, where the IAC applied the principles (ALS [68] at [12] above), and found the Aboriginal Legal Service not to be a trading corporation: ALS [74]–‍[77] (Steytler P, Pullin J agreeing [79]):

74 However, when all of the factors to which I have referred are taken together, it cannot be said that what is done by the appellant has a commercial character. Rather, its activities, including its entry into the contract, seem to me to be removed from ordinary concepts of trade or trading, whether for reward or otherwise, in much the same way as those of a government‑run legal aid agency. As I have stressed, its services are provided, in all but the most exceptional cases, free of charge: St George County Council (569). They are provided for altruistic purposes, not shared by ordinary commercial enterprises (Ku‑ring‑gai (160) (Deane J)), under a constitution which requires the appellant to act only in furtherance of the altruistic objects. The appellant engages in a major public welfare activity pursuant to an agreement with the Commonwealth under which it will be re-imbursed for most of its costs: E (343) (Wilcox J); Fowler. Although its services have been ‘purchased’ by the Commonwealth under the contract, its activities continue to lack a ‘commercial aspect’: Hardeman [26]; J S McMillan (355) (Emmett J); Ku-ring-gai (142) (Bowen CJ), (167) (Deane J). It follows from what I have said that the appellant is not a ‘trading corporation’ for the purposes of s 51(xx) of the Constitution and the notice of contention succeeds. The Commission has jurisdiction to determine the issue before it.

75 This conclusion makes it unnecessary for me to determine whether if, as the Full Bench found [318], the ‘entering into and performance of the contract’ with the Commonwealth was a trading activity, the Full Bench erred in holding that trading was not a substantial corporate activity of the appellant. However, I will comment, very briefly, on that issue.

76 Generally speaking, if a corporation trades, and its trading activities are ‘substantial’ or ‘significant’, it will fall within the ambit of the Commonwealth’s legislative powers, as I have said. If the Full Bench was right in its conclusion that the entering into, and performance of, the contract by the appellant constituted trading, it seems to me that it must have been in error in concluding that the appellant was nonetheless not a ‘trading corporation’.

77 The performance of the contract was, as I have stressed, close to the entirety of what the appellant did. That appears to have been recognised by the Full Bench. They say that what the appellant provided for the government under the contract were ‘specifically directed and highly controlled services which enhance a particular … policy’ [319]. This is plainly a reference to the legal aid services provided by the appellant to indigenous people. However, the Full Bench goes on, immediately, to say that all of the activities of the appellant need to be assessed and that these ‘include the provision of legal representation to indigenous people for which they are not charged’ [320]. This activity, being, as I have said, the activity that constitutes performance of the contract, is said not to amount to trading [320]. Consequently (and notwithstanding what it said in [318]), it seems as if the Full Bench treated the making of the contract as an act of trading, but that it regarded the performance of the contract by the appellant, so far as it involved the provision of free legal assistance to indigenous people, as not amounting to trade. In my respectful opinion, that is a distinction that is conceptually unsustainable. If the contract was entered into in the course of trade, contrary to the conclusion at which I have arrived, then, it seems to me, so too were the acts that were done in performance of that contract. These acts were, as I have said, undoubtedly a substantial part of the appellant’s activities.

14      However, ALS [76]–‍[77] (at [13] above) clarifies that if a contract (including a contract with the government to provide a public welfare activity at costs) is entered into in the course of trade, then the acts done in performance of that contract constitute trading activities, which if ‘substantial’ or ‘significant’, characterises the corporation as a trading corporation.

15      Applying the principles at [12]–‍[14] above to the evidence (at [8] above), involves assessing the applicant’s current activities to determine whether they include trading that is sufficiently significant to characterise it as a trading corporation. This assessment focuses on the nature and extent of the applicant’s activities as a question of fact and degree (ALS [68(6)]), evaluated at the relevant time (ALS [68(7)]), rather than the applicant’s purpose or benevolent objects.

16      The test, as established in the authorities (at [12]–‍[14] above), requires the trading activities to form a substantial and not merely peripheral part of the applicant’s overall activities (ALS [68(2)]). Trading is construed broadly, and includes business activities carried on with a view to earning revenue and trade in services (ALS [68(3)]), even if not profit‑oriented (ALS [68(4)]), or conducted for public welfare purposes (ALS [68(5)]).

17      Both parties contend that the applicant is not a trading corporation because its activities are incidental to its primary benevolent purpose of providing support to women and children experiencing family and domestic violence, funded largely by government grants, which they contend is non‑trading revenue. They further argue that the rental income is nominal, not conditional (except for transitional housing), and does not serve a commercial purpose, but is charged to clients in order to prepare them for being charged rent after they leave the refuge.

18      However, evaluating the evidence against the principles (at [12]–‍[14] above), I am satisfied that the applicant’s activities involve sufficiently significant trading to merit the characterisation of the applicant as a trading corporation, for the reasons that follow.

19      Firstly, while clause 3, ‘Objects’, of the applicant’s Constitution, sets out the objects of the applicant which are consistent with the provision of welfare services, ‘[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’: Morrgul [19] citing Bankstown [55] and UFU [136].

20      As the respondent rightly notes, there is nothing in the applicant’s Constitution that prevents the applicant from engaging in trading activities. Indeed, clause 4 of the applicant’s Constitution outlines that the applicant has the power to do all things necessary to undertake the following activities of a commercial nature:

4 POWERS

4.1 The powers of the Association shall be those conferred on the Association by section 14 of the [Associations Incorporation Act 2015 (Act)] so that the Association may have the power to do all things necessary to:

(a)       acquire, hold, deal with, and dispose of any real or personal property;

(b)       open and operate bank accounts;

(c)       invest its money:

(i) in any security in which trust monies may lawfully be invested; or

(ii) in any other manner authorised by the rules of the Association;

(d)       borrow and raise money upon such terms and conditions as the Association thinks fit;

(e)       give such security over the assets and undertakings of the Association for the discharge of liabilities incurred by the Association as the Association thinks fit;

(f)        appoint agents to transact any business of the Association on its behalf;

(g)       enter into any other contract it considers necessary or desirable; and

(h)       act as trustee and accept and hold real and personal property upon trust, but does not have power to do any act or things as a trustee that, if done otherwise than as a trustee, would contravene the Act or this Constitution.

21      Secondly, the applicant’s audited financial statements for the year ended 30 June 2025, specifically the Statement of cash flows (at [11(i)] above), indicates that the applicant derived revenue from the following commercial activities:

(a)               Rental income charged to clients:

(i)                 In the financial year ending 30 June 2024, rental income totalled $208,639, representing 5.2% of the applicant’s total cash inflows from operating activities of $4,028,167.

(ii)              In the financial year ending 30 June 2025, rental income totalled $144,236, representing 1.9% of the applicant’s total cash inflows from operating activities of $7,749,148.

(b)               Interest received:

(i)                 In the financial year ending 30 June 2024, interest income totalled $49,511, representing 1.2% of the applicant’s total cash inflows from operating activities of $4,028,167.

(ii)              In the financial year ending 30 June 2025, interest income totalled $111,247, representing 1.4% of the applicant’s total cash inflows from operating activities of $7,749,148.

22      Rental income constitutes trade in the provision of accommodation for consideration. This aligns with the broad definition of trading as including ‘business activities carried on with a view to earning revenue’: ALS [68(3)]. It is irrelevant that the applicant charges clients a nominal amount in rent, does not make the provision of accommodation and services conditional on the payment of rent, and the amount charged does not fully cover the costs of utilities or property maintenance. This is because ‘the making of a profit is not an essential prerequisite to trade’: ALS [68(4)].

23      The purpose for which the applicant charges rent (to prepare clients for paying rent after they leave the refuge), is also irrelevant. This is because ‘[t]he ends which a corporation seeks to serve by trading are irrelevant to its description’ and ‘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”’: ALS [68(5)].

24      Interest income arises from the activity of managing and investing funds, an activity with a commercial nature. ‘The commercial nature of an activity is an element in deciding whether the activity is in trade or trading’: ALS [68(8)].

25      The rental income and interest income (at [21] above) total:

(a)               $258,150 in the financial year ending 30 June 2024, representing 6.4% of the applicant’s total cash inflows from operating activities of $4,028,167.

(b)               $255,483 in the financial year ending 30 June 2025, representing 3.3% of the applicant’s total cash inflows from operating activities of $7,749,148.

26      The revenue the applicant derives from commercial activities as a proportion of its total cash inflows from operating activities (at [25] above), of 6.4% in the 2024 financial year, and of 3.3% in the 2025 financial year, is not insignificant. This revenue exceeds the 2.7% trading revenue in UFU (at [12] above), which the court found formed a sufficiently significant proportion of its overall activities as to merit the CFA’s description as a trading corporation, notwithstanding the CFA’s primary public purpose.

27      Thirdly, the service agreements with the Department, though fixed-funding contracts, represent remuneration for the provision of specified services to the State, constituting trade in services: Bankstown [54]–‍[55] (at [12] above).

28      The following Service Agreements were attached to the CEO’s affidavit:

(a)               The Service Agreement made on 18 September 2009 for the funded service ‘Pat Thomas Memorial Community House’ for the funding term 1 October 2009 to 30 September 2012.

(b)               The Service Agreement made on 18 September 2009 for the funded service ‘Peel Domestic Violence Advocacy and Support Service’ for the funding term 1 October 2009 to 30 September 2012.

(c)               The Service Agreement made on 16 August 2010 for the funded service ‘Domestic Violence Outreach Initiative – Peel Region’ for the funding term 1 July 2010 to 30 June 2013.

29      Each Service Agreement at [28] above, states: (emphasis added)

(a)               That the Department is ‘the Principal’ and the applicant is ‘the Service Provider’.

(b)               Schedule 4 – Payment Schedule: that the Service Provider must comply with the ‘General Provisions for the Purchase of Community Services by Government Agencies’, and:

(i)                 The Service Provider must not, without prior written approval of the Principal, use or expend the Service Payment or any part thereof upon costs relating to any industrial or legal action or payment of pre‑existing debts not relevant to the provision of the Service.

(ii)              The Principal may withhold payment of the Service Payment in an Event of Default and may recommence payment in the Principal’s discretion when the Principal is satisfied that the Service Provider has rectified the Event of Default.

(c)               Schedule 5 – Financial Obligations and Reports: that the Service Provider is required to comply with financial accountability requirements ‘[i]n order for the Principal to monitor and review purchased activities’.

(d)               Form 5(a) – Statement of Receipts and Payments: that the Service Provider is to provide ‘a separate statement for each service purchased by the Principal’.

(e)               Schedule 6 – Service Reports: that the Principal will review the provision of the Service, and may review the Service annually to assess the extent the Service Provider is meeting the requirements specified in Schedule 2 – Service Specifications.

30      Both Service Agreements made on 18 September 2009 (at [28(a)–‍(b)] above) also state:

(a)               Part 3 – Description of Funded Service(s): that the description of the funded service(s) are to be read ‘in conjunction with the Request for Proposal or Preferred Service Provider application/s’.

31      The Preferred Service Provider Request for Family and Domestic Violence Accommodation and Support Services – South Corridor – Pat Thomas Memorial Community House, states: (emphasis added)

PART A – PROCUREMENT PROCESS INFORMATION

1. INTRODUCTION

1.1 Background

Consistent with the intent of the Delivering Community Services in Partnership (DCSP) Policy, July 2011, the Children and Community Services Ministerial Body, through the Department for Child Protection and Family Support (the State Party, also referred to as the Department), purchases services from not‑for‑profit organisations and Local Government Authorities to support its mission to protect and care for children and young people who are in need, and support families and individuals who are at risk or in crisis.

Your organisation has been awarded Preferred Service Provider status for the provision of the service in this Request. The Department invites your organisation to submit an offer, and negotiate with the Department to provide this service through a Preferred Service Provider Request process.

32      The Community Services Restricted Grant Application for Family and Domestic Violence Therapeutic Women’s Refuge Peel, states: (emphasis added)

PART A: GRANT APPLICATION DOC201917199G

1. Introduction

…

Consistent with the intent of the Delivering Community Services in Partnership (DCSP) Policy 2018, the Children and Community Services Ministerial Body, through the Department of Communities (the State Party, also referred to as Communities), purchases services to support the achievement of its community outcomes.

…

1.1 How this Restricted Grant Application process works

Consistent with processes detailed in Expression of Interest EOICPFS2019-17199 (the EOI), all Respondents who were shortlisted from the EOI will be invited to submit an Offer via this Grant Application process. All Offers will be evaluated in accordance with Part A: Section 5 below. Following the evaluation, Communities will enter into a Grant Agreement for the delivery of the service model with the successful Respondent/s. Further details of the Grant Application process are outlined below.

1.2 Purpose of this Community Services Restricted Grant Application

This Grant document has a number of purposes, including:

a. to provide information about the Grant Application to the shortlisted Respondents;

b. to invite shortlisted Respondents to submit a Grant Application (Offer); and

c. in conjunction with the Process Terms and Conditions (explained in Section 1.4), to set out the:

i. requirements that must be met to submit a valid Offer;

ii. Evaluation Criteria that the State Party will use to evaluate Offers; and

iii. Terms and Conditions of the Grant Agreement.

33      The applicant contends that, as the Department fixed the contract price under the Service Agreements, the applicant did not submit a competitive tender and is merely funded to provide services to the community, rather than to the Department itself.

34      However, the Service Agreements and the requests to submit an offer at [28]‍‍–‍‍‍‍‍‍‍‍‍‍‍‍‍‍[32] above, do not support the applicant’s contentions. On the contrary, these documents explicitly refer to the Department purchasing services from the applicant, the applicant submitting an offer to be the successful provider, and to the applicant negotiating with the Department to provide the services.

35      Even without price competition, the Service Agreements and the requests to submit an offer at [28]–‍[32] above, indicate that the applicant was free to offer or withhold services, and the Department was free to accept or reject the applicant’s offer, supporting a commercial relationship involving trade in services: ALS [68(3)] and [68(8)].

36      The Service Agreements and the requests to submit an offer at [28]–‍[32] above, indicate that the relationship between the Department and the applicant is akin to that in Bankstown [54], where the applicant ‘provided services to the State and was remunerated for doing so’, characterising the applicant’s activities as ‘selling those services to the State and, correspondingly, the State purchasing them’.

37      While the applicant relies upon the funding arrangements being extended on numerous occasions without the Department going to market, this may underscore reliability in service delivery; it does not alter the commercial exchange that is inherent in the Service Agreements.

38      The Service Agreements and the requests to submit an offer document at [28]–‍[32] above, relate to:

(a)               Pat Thomas Refuge.

(b)               Peel Advocacy and Support Services.

(c)               Domestic Violence Outreach – Peel Region.

(d)               Warlang Bidi Therapeutic Refuge.

39      The Grant Agreement – Family and Domestic Violence Primary Prevention Grants Program 2024/2026 – Safe Futures, suggests that in the period up to 30 June 2025, the applicant received $193,292.30 from the Department.

40      The letter from QBE and the community Partnership Agreement with Alcoa, suggests that the applicant received funds totalling $60,000 from QBE and Alcoa in the financial year ending 30 June 2025.

41      The letter from the Lucy Saw Centre Association Inc, refers to the applicant receiving the disbursement of funds for the Mobile Outreach Initiative for the period 1 July 2025 to 30 June 2026, payable on 3 or 4 July 2025. Given these dates, these funds would not appear in the Statement of cash flows (at [11(i)] above).

42      The Statement of cash flows (at [11(i)] above) notes that, in the 2025 financial year, the applicant received Grant income of $7,493,665, representing 96.7% of the applicant’s total cash inflows from operating activities of $7,749,148.

43      Deducting the combined amounts at [39]–[40] above ($253,292.30), from the total Grant income ($7,493,665), results in the income the applicant received from the Department for the provision of the services specified at [38] above, totalling $7,240,372.70, representing 93.4% of the applicant’s total cash inflows from operating activities of $7,749,148.

44      As outlined at [26] above, the revenue from the rental income and interest income, representing 3.3% of the applicant’s total cash inflows from operating activities in the 2025 financial year, is not insignificant; it is ‘a substantial and not merely a peripheral activity’: ALS [68(2)].

45      As outlined at [27]–‍[43] above, the remuneration the applicant received from the Department constitutes trade in services, representing 93.4% of the applicant’s total cash inflows from operating activities in the 2025 financial year. As a proportion of the applicant’s operating activities, this is clearly a ‘substantial and not merely a peripheral activity’: ALS [68(2)].

46      For the preceding reasons, the applicant’s trading activities, encompassing rental and interest income, and remuneration under service agreements for specified services, form a sufficiently significant proportion of the applicant’s overall activities, to merit the applicant’s characterisation as a trading corporation, notwithstanding its benevolent purpose.

Conclusion

47      For the preceding reasons, I find the applicant to be a trading corporation.

48      Accordingly, the Commission lacks jurisdiction over the Application.

49      Consequently, application AG 25 of 2025 will be dismissed.