T12962
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Emma Kate Ackerley and Lyell District Ex-Servicemen's Club Inc.
Industrial dispute - termination of employment - jurisdiction - constitutional corporation - application dismissed REASONS FOR DECISION [1] On 5 June 2007, Emma Kate Ackerley (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. [2] This matter was listed for hearing at the Magistrates Court, Sticht Street, Queenstown, Tasmania on Thursday, 7 June 2007 at 1.00 pm. The applicant entered an appearance on her own behalf, and cited Mr El Said as her support person. 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 August 2006 until 22 March 2007 as a casual bar attendant. The applicant alleged an incident occurred where a customer's mobile phone had reportedly gone missing. The applicant's employment was subsequently terminated by the Mr Stringer, the Club president. There was no evidence educed to directly link the mobile phone incident with the termination, although it was assumed by the applicant. [4] Unfortunately, much of the statement made by the applicant was unsubstantiated hearsay. This was drawn to her attention during the hearing. [5] Mr Cornish for the respondent did not argue against any of the submission put by the applicant. At the outset of the proceedings, Mr Cornish raised a threshold matter with respect to jurisdiction. He relied on his argument proffered in the matter T12941 of 2007 (Mr El Said), and sought the matter be dismissed for want of jurisdiction. [6] The progress of the matter hinged on this Commission's jurisdiction, or lack of, to arbitrate. [7] Mr Cornish informed the Commission, during the hearing of matter T12941 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.1 [8] Mr Cornish stated at paragraph 30 of matter T12941 transcript:
[9] The second vein of Mr Cornish's argument was to establish whether the Club was indeed a trading corporation. The Club's trading statement2 showed the majority of it's income came from bar and food sales. [10] At a later date Mr El Said, in support of his own matter, 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. [11] 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. [12] Mr Cornish sought that the claim for alleged unfair termination of employment be dismissed for want of jurisdiction. [13] Mr Cornish asserted that the applicant also failed to meet the requirements of s.29(1B) of the Tasmanian Industrial Relations Act 1984. This section of the act states:
[14] Mr Cornish sought that the application be dismissed on these grounds if the jurisdictional argument failed. [15] The application was lodged some 54 days out of time. The applicant did not give a reason for the late lodgement of her application. [16] The applicant sought relief from the Commission in regard to alleged unfair termination of employment. FINDINGS [17] With regard to the issue of jurisdiction I rely on my findings in T12941. [18] 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. [19] The Commonwealth Constitution states at s.51:
[20] 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? [21] At s.2, Interpretation, of the Associations Incorporation Act 1964, it states at (1):
[22] 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. [23] 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:
[24] I take the evidentiary view of Mason J in the above authority. [25] 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. [26] 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:
[27] Further at paragraph 54 of the decision Mason J states:
[28] 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):
[29] It is my view that neither the Club's purpose, nor it's trading activities, offend s.2(1)(b) of the Associations Incorporations Act 1964. [30] 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:
[31] 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. [32] 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:
[33] 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. [34] Further, at paragraph 120, Wilcox J again cites the St George County Council decision:
[35] I find that the observations and conclusion of Murphy J in the above authority sit comfortably with situation in the instant matter. [36] The Concise Oxford Dictionary defines "Trade" as:- " ... exchange of commodities for money ..." [37] 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:
[38] 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 those 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. [39] The evidence shows, and the cited authorities support the conclusion, that the Club is a trading corporation, and I so find. [40] 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. [41] I dismiss the matter of alleged unfair termination of employment for want of jurisdiction, and I so Order. [42] Finally, as a consequence of the above finding it is not necessary for this Commission to rule on the "out of time" aspect of the application.
James P McAlpine Appearances: Date and Place of Hearing: 1 Exhibit R1
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