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T12941

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Mohammed El-Said
(T12941 of 2007)

and

Lyell District Ex-Servicemen's Club Inc.

 

COMMISSIONER JP McALPINE

HOBART, 18 July 2007

Industrial dispute - termination of employment - long service leave - jurisdiction - constitutional corporation - application dismissed

REASONS FOR DECISION

[1] On 3 May 2007, Mohammed El-Said (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Lyell District Ex-Servicemen's Club Inc. (the Club) arising out of a dispute in relation to termination of employment and the entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid.

[2] This matter was listed for hearing at the Magistrates Court, Sticht Street, Queenstown, Tasmania on 16 May 2007. However, this was subsequently changed to Thursday, 7 June 2007 at 1.00 pm. The applicant entered an appearance on his own behalf. Mr S Cornish, Tasmanian Chamber of Commerce and Industry Limited, appeared for and on behalf of the Club.

[3] The applicant had been employed by the Club from 1 July 2006 to 13 April 2007 as the Club Manager. The nature of his employment, however, appeared to be wide ranging and covered a variety of tasks. There was no formal contract of employment. A rate of $23.43 per hour, depending on the tasks he undertook, appears to have been agreed upon, however the applicant drew his own wages without any formal approval. There was no issue in this regard raised by Mr Cornish, on behalf of the Club, the instant matter.

"... I was taking a wage, but nowhere near that I was entitled to."1

[4] The nature of the applicant's employment was not precisely defined by either party: casual, part time, voluntary, permanent were all proffered at some stage throughout the proceedings.

"... I thought I was told that I was permanent. I was told that my employment would ongoing."2

[5] It was alleged an incident occurred where a customer's mobile phone had reportedly gone missing, consequently the employment of one of the bar staff was terminated. Just prior to Easter 2007 the applicant alleged the Club President informed him that he no longer had the freedom to hire and fire and that the Club committee would assume that role.

[6] The applicant stated he was informed by Mr Stringer, the Club President, that the employee whose employment had been terminated as a result of the mobile phone incident was to be reinstated. The applicant asserted he told the Club President:

"I expressed my surprise ... and that I seriously couldn't work with someone who I perceived as being dishonest ..."3

[7] The applicant also alleged that on 6 April 2007, the Club President asked him to return the keys to the Club, and informed him that he could only have access to the Club when he, the Club President, was in attendance.

[8] The applicant wrote to the Club committee on 20 April 2007 seeking clarification regarding his employment.4 In the letter he alleged the Club President had terminated his employment by telephone on Friday, 13 April 2007.

[9] The applicant further alleged that on 9 May 2007, during a discussion with the Club President, he was offered his position back, which he declined.

[10] The applicant stated that he was not paid any accrued leave on termination.

[11] Unfortunately, much of the statement made by the applicant was unsubstantiated hearsay. This was drawn to his attention during the hearing.

[12] Mr Cornish, for the Club, rejected the applicant's assertions and stated that the applicant had resigned.

[13] The applicant produced a Separation Certificate, prepared by the Club, which, he asserted, erroneously stated he had voluntarily left his position.5

[14] The applicant sought relief from the Commission in regard to alleged unfair dismissal and entitlement to pro-rata long service leave.

[15] At the outset of the proceedings, Mr Cornish raised a threshold issue with respect to jurisdiction of the matter regarding alleged unfair dismissal.

[16] The progress of the matter hinged on this Commission's jurisdiction, or lack of, to arbitrate.

[17] Mr Cornish informed the Commission that the Lyell District Ex-Servicemen's Club Inc. was a corporation incorporated under the Tasmanian Associations Incorporation Act 1964 and, as such, fell under the jurisdiction of the Australian Workplace Relations Act 1996. He tendered a copy of the Certificate of Incorporation.6

[18] Mr Cornish stated at paragraph 30 of transcript:

"Now, under the Workplace Relations Act and the Commonwealth Constitution, a constitutional corporation is one which is a corporate body and, secondly, one which must either be a foreign corporation, financial corporation or a trading corporation. Now, clearly, the club is not a foreign corporation or a financial corporation. However, I am going to argue that it is a trading corporation."

[19] The second vein of Mr Cornish's argument was to establish whether the Club was indeed a trading corporation. The Club's trading statement7 showed the majority of it's income came from bar and food trade.

[20] At a later date the applicant supplied the Commission with a more detailed financial statement. This supplementary data supported Mr Cornish's assertion that the Club earned most of its revenue from the sale of alcohol and food and that other income, such as subscriptions, from members was minimal.

[21] Mr Cornish cited an authority of the High Court of Australia, in the case The Queen v Federal Court of Australia; Ex parte W.A. Football League Inc [1979] 143 CLR 190 (27 February 1979), as being relevant to this matter. In summary the High Court found, by a majority decision, that the Western Australian Football League Inc. should be deemed to be a trading corporation.

[22] Mr Cornish sought that the claim in the first part of the application, the alleged unfair dismissal, be dismissed for want of jurisdiction.

[23] Mr Cornish stated that the applicant failed to meet the requirements of s.8(2)(a) or (b) of the Long Service Leave Act 1976 and sought the claim in the second part of the application, of long service leave entitlement, be dismissed.

FINDINGS

[24] The outcome, if the conclusion is that the Club is indeed a trading corporation recognized by the Constitution, would be that s.109 of the Constitution may apply with respect to the entity being subject to the Australian Workplace Relations Act 1996 over the Tasmanian Industrial Relations Act 1984.

[25] The Commonwealth Constitution states at s.51:

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:"

[26] To progress a resolution to the threshold matter of jurisdiction, two factors hold the key to which Mr Cornish alluded. The first is, the descriptor of the entity: is it a corporation or not a corporation under the Commonwealth Constitution? The second is: the form of the entity, if it is deemed to be a corporation, is it a trading corporation?

[27] At s.2, Interpretation, of the Associations Incorporation Act 1964, it states at (1):

"association" means -

(a) any association, society, club, institution, or body that is formed or carried on -

(iv) for the purpose of recreation or amusement;"

[28] The Club could, in my view, fall quite comfortably into the category as set out in s.2(1)(a)(iv) of the Associations Incorporation Act 1964.

[29] With regard to an entity being a corporation, I cite Mason J's comment in the aforementioned W.A. National Football League matter, where at paragraph 21 he states:

"... if an association which fell within the proviso were issued with a certificate of incorporation, it must be deemed, at least so long as that certificate is extant, to be a corporation. Although not so said in express terms, the Associations Act in reality makes the certificate of incorporation conclusive evidence of the corporate personality of the registered association."

[30] I concur with the evidentiary view of Mason J in the above authority.

[31] Mr Cornish adduced evidence in the form of a copy of the Club's Certificate of Incorporation, and I accept this as conclusive evidence that the Club is indeed an organisation incorporated under the Associations Incorporations Act 1964, and I so find.

[32] In assessing the form of the corporation, again I take cognizance of Mason J's view in the W.A. National Football League matter, where at page 234 (cited by Mr Cornish) his Honour said:

"Whether the trading activities of a particular corporation are sufficient to warrant it being characterised as a trading corporation is very much a question of fact and degree."8

[33] Further at paragraph 54 of the decision Mason J states:

"I remain of the firm conviction that for constitutional purposes a corporation formed within the limits of Australia will satisfy the description "trading corporation" if trading is a substantial corporate activity. Its activities rather than the purpose of its incorporation will designate its relevant character"

[34] This view of Mason J applies comfortably to the instant matter. It also helps to clarify the Club's position with respect to the Associations Incorporation Act 1964. Under s.2, Interpretation, of this Act it states at (1)(b):

" any other association, society, club, institution, or body that is declared by the Minister, by order, to be an association for the purposes of this Ac t-

but does not include any association, society, club, institution, or body that is formed or carried on for the purpose of trading or securing pecuniary profit for it's members;"

[35] It is my view that the Club's purpose, nor it's trading activities, offend s.2(1)(b) of the Associations Incorporations Act 1964.

[36] In the matter of E v Australian Red Cross Society; Australian Red Cross Society New South Wales Division and Central Sydney Area Health Service No G759 of 1989 Fed No. 20 Trade Practices - Negligence (1991) 13 ATPR 41-085 99 ALR 601 27 FCR 310, Wilcox J, at paragraph 108, said:

"The evidence discloses that the first respondent (Australian Red Cross Society) raises revenue from a multitude of sources: social functions, sporting events, field days, raffles and lotteries, other minor events, the sale of goods in permanent shops, at temporary venues such as stalls, fairs and markets ... The society also receives income from rented properties and investments."

[37] There is a parallel with the nature of the revenue raising activities of the Club and the "first respondent" in the above authority. Where the Club trades by way of the provision of bar and food sales in it's own facility, the "first respondent" trades through selling goods from permanent shops.

[38] Again in the above matter, Wilcox J, at paragraph 117, makes reference to the comments of Stephen J in the matter of the Queen v Trade Practices Tribunal; ex parte St George County Council (1974) 130 CLR 533:

`However if some other motive actuates a corporation or individual to engage in trading activities those activities will not themselves be altered in character and, if they consist of what is properly described as trading, a corporation which undertakes them as its sole or principal business will, in my view, be a trading corporation."

[39] In the instant matter, Mr Cornish gave evidence which clearly showed that the bar and food revenue and sundry other sales was substantial in terms of the Club's overall income.

[40] Further, at paragraph 120, Wilcox J again cites the St George County Council decision:

"Murphy J went a little further, saying at p 239:

"A trading corporation may also be a sporting, religious, or governmental body. As long as the trading is not insubstantial, the fact that trading is incidental to other activities does not prevent it being a trading corporation."

[41] I find that the observations and conclusion of Murphy J in the above authority sit comfortably with situation in the instant matter.

[42] The Concise Oxford Dictionary defines "Trade" as:- " ... exchange of commodities for money ..."

[43] In the Western Australian Industrial Relations Commission, appeal matter, Aboriginal Legal Service of Western Australia Incorporated v. Mark James Lawrence their Honours considered all the aforementioned authorities. The full bench formed the view that the appellant was deemed not to be a trading corporation. Under the heading "22. Is the Appellant a Trading Corporation?" at paragraph 320 of that decision, it states:

"As stated above, the conclusion that the appellant trades with the department does not inevitably lead to the conclusion that the appellant is a trading corporation. This is because all of the activities of a corporation need to be assessed. In this instance they include the provision of legal representation to indigenous people for which they are not charged. This arm of what the appellant does is clearly not trading. There is no exchange for value between the appellant and its indigenous clients."

[44] A concrete distinction can be drawn between the instant matter and the above authority. In the Aboriginal Legal Service of Western Australia Incorporated case, their Honours found that the appellant did not perform a trading function. In that case, the service provided was to third parties, for which the third parties were not normally charged by the provider of the service. The extent of that service was somewhat independent of the monies received from a second party, government funding. Whereas, in the instant case, there is a distinct process of buying food and drink to sell directly to customers on the premises, albeit those customers may or may not be Club members.

[45] The evidence shows, and the cited authorities support the conclusion, that the Club is a trading corporation, and I so find.

[46] As a consequence of this decision, s.109 of the Constitution must apply with respect to the entity being subject to the Australian Workplace Relations Act 1996 over the Tasmanian Industrial Relations Act 1984.

[47] I dismiss the matter of alleged unfair dismissal for want of jurisdiction, and I so Order.

[48] Finally, I address the long service leave claim in the second part of the application.

[49] The applicant worked for the Club for a period of less than one year and does not meet the qualification criteria for long service leave as expressed in either s.8(2)(a) or (b) of the Long Service Leave Act 1976, and I so find. The application for long service leave is dismissed, and I so Order.

 

James P McAlpine
COMMISSIONER

Appearances:
Mr M El-Said for himself
Mr S Cornish, Tasmanian Chamber of Commerce and Industry Limited, for the Lyell District Ex-Servicemen's Club Inc.

Date and Place of Hearing:
2007
June 7
Queenstown

1 Transcript PN 71
2 Transcript PN 72
3 Transcript PN 77
4 Exhibit A1
5 Exhibit A2
6 Exhibit R1
7 Exhibit R2
8 Transcript PN34