Skip to main content

Ribbon

  • About us
  • Contact us
  • Glossary
  • News & media
Fair Work Commission logo

Fair Work Commission

Australia's national workplace relations tribunal
Search is closed
Menu is closed

Search

Main menu

  • Awards & agreements
    • Minimum wages & conditions
    • Awards
    • Agreements
    • Legislation & regulations for awards & agreements
  • Cases, decisions & orders
    • Major cases
    • Summaries of significant decisions
    • Decisions by keywords
    • FWC Bulletin
    • Archived decisions & orders
    • Transcripts
    • Court reviews
    • Historical cases
  • Registered organisations
    • Fact sheets, templates & webinars
    • Find registered organisations
    • Find State-recognised associations
    • Registration
    • Running a registered organisation
    • Entry permits
    • Industrial action
    • Gazette notices
    • Lodgment
  • Resources
    • Online lodgment
    • Forms
    • Where to get legal help
    • Research
    • Workplace Relations Education Series
    • Benchbooks
    • Fact sheets, guides & videos
    • Practice notes
    • Resources in other languages
    • Case studies
    • Quarterly practitioner updates
    • Related sites
  • Termination of employment
    • Unfair dismissal
    • General protections dismissal
    • Unlawful termination
    • How the Commission works
  • Disputes at work
    • Fairness in the workplace
    • Resolving issues at the Commission
    • Cooperative Workplaces program
    • JobKeeper disputes
    • General protections (unlawful actions)
    • Anti-bullying
    • Industrial action
    • Awards & enterprise agreements disputes
    • Disputes about entry
    • How the Commission works
  • Home
  • Anti-bullying benchbook
  • Who is covered by workplace bullying laws?
  • Definition of ‘constitutionally-covered business’
Back to top

Anti-bullying benchbook

An overview of legal procedure & case law

What is a constitutional corporation?

Print this page

 

Table of contents

On this page

  • Constitutional corporation
  • Foreign corporations
  • Case example
  • Trading or financial corporation formed within the limits of the Commonwealth
  • Case examples
  • References

 

Constitutional corporation

The Fair Work Act defines a constitutional corporation as ‘a corporation to which paragraph 51(xx) of the Constitution applies’.[1]

The Australian Constitution defines constitutional corporations as ‘Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.[2]

This definition has two limbs that are ‘comprehensive alternatives’.[3] This means that constitutional corporations are either ‘foreign corporations’ or ‘trading or financial corporations formed within the limits of the Commonwealth’. Therefore, a foreign corporation does not need to be formed within the limits of the Commonwealth or be a trading or financial corporation to be classified as a constitutional corporation.[4]

Many incorporated employers in the private sector who sell goods or provide services for a fee will easily satisfy the criteria of a trading or financial corporation.[5]

The issue of whether an employer is a constitutional corporation usually arises where the employer is a not-for-profit organisation in industries such as health, education, local government and community services.[6]

Foreign corporations

A foreign corporation is a corporation that has been formed outside of Australia.[7]

A corporation which is formed outside of Australia, which employs an employee to work in its business in Australia, is likely to be a constitutional corporation and therefore fall within the jurisdiction of the Fair Work Commission.[8]

Case example

Foreign corporation – employer company formed in New Zealand but applicant worked in Australia

Gardner v Milka-Ware International Ltd

[2010] FWA 1589 (Gooley C, 25 February 2010).

Facts

The applicant alleged the termination of his employment was harsh, unjust or unreasonable. The respondent raised a jurisdictional objection as it was a New Zealand Registered, Directed and Owned company; traded in New Zealand only; employed the applicant in New Zealand and paid the applicant in New Zealand dollars into a New Zealand bank account. The applicant however worked in both New Zealand and Australia.

Outcome

The Commission determined that the respondent was incorporated in New Zealand meaning that it was a foreign corporation within the meaning of s.51(xx) of the Australian Constitution and therefore, to the extent that it employed employees to perform work in Australia, it was a national system employer. The Commission had jurisdiction to deal with the application.

Relevance

In this case in the unfair dismissal jurisdiction, the Commissioner determined that the Commission has jurisdiction to deal with applications against foreign corporations in relation to employees employed to work in Australia.[9]

Trading or financial corporation formed within the limits of the Commonwealth

Trading denotes the activity of providing goods or services for payment.[10]

The Commission will consider the nature of a corporation with reference to its activities, rather than the purpose for which it was formed.[11]

It does not matter if trading activities are a corporation’s ‘dominant’ activity or whether they are merely an ‘incidental’ activity, or entered into in the course of pursuing other activities.[12]

A corporation will be a trading corporation if the trading engaged in is ‘a sufficiently significant proportion of its overall activities’.[13]

A corporation can be a trading corporation even if it was not originally formed to trade.[14]

One factor that may be considered is the commercial nature of the activity.[15] When considering the commercial nature of a corporation’s activity, the Commission will look at a number of factors, including:

  • whether it is involved in a commercial enterprise; that is, business activities carried on with a view to earning revenue
  • what proportion of its income the corporation earns from its commercial enterprises
  • whether the commercial enterprises are substantial or peripheral, and
  • whether the activities of the corporation advance the trading interests of its members.[16]

A financial corporation is one ‘which borrows and lends or otherwise deals in finance as its principal or characteristic activity...’[17]

The approach taken in deciding whether the activities of a corporation are such that the corporation should be considered to be a financial corporation is the same as the approach taken in deciding whether a corporation is a trading corporation.[18]

Case examples

Trading or financial corporations

Professional sporting organisation and club

R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6 (27 February 1979), [(1979) 143 CLR 190].

Facts

The respondent was a registered football player with the West Perth Club. He moved his residence to South Australia having had an offer to play with the Norwood Club (the Club). Under the rules of the National League, adopted both by the State League and the West Perth Club, the respondent needed a clearance from the National League to play with another club other than the club he was registered with. If the respondent played without clearance, the Norwood Club would lose, or run the risk of losing competition points. The respondent was refused a clearance. He claimed that both the State League and the West Perth Club were trading corporations formed within Australia, bound by the provisions of the Trade Practices Act 1974-1977 (Cth) (the TP Act) and, in relation to the requirement and refusal of a clearance, were in breach of the TP Act.

Outcome

The High Court, by majority, held that the West Perth Club and the league to which it belonged in Western Australia were trading corporations. Their central activity was the organisation and presentation of football matches in which players were paid to play and spectators charged for admission; and television, advertising and other rights were sold in connection with such matches. The Court found that this constituted trading activity.

Relevance

When determining if an organisation is a financial corporation or a trading corporation, it is necessary to examine any trading activity the organisation performs. When trading is a substantial activity of the corporation, the conclusion that the corporation is a trading corporation is open. The commercial nature of an activity is also an element in deciding whether the corporation is in trade or trading.

Trading corporations

Charitable organisation

Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) [2002] FCA 860 (5 July 2002), [(2002) 120 FCR 191].

Facts

The applicants were both corporations registered in Queensland. The applicants manufactured and sold electronic dog collars for the purpose of training dogs. The respondents have historically campaigned and claimed that the making of these products were cruel and instruments of torture. The applicants claimed the respondent’s representations of cruelty, illegality and the effectiveness of the products were false. They claim the respondent had, by making the representations, engaged in conduct, in trade or commerce that was misleading or deceptive or likely to mislead or deceive. The applicants claimed as a result of the respondent’s statements about their products, they sustained significant loss and damage.

Outcome

The Federal Court found the RSPCA (a charitable organisation) to be a trading corporation on the basis that it earned substantial income from trading activities.

Relevance

When determining whether an organisation is a trading corporation, it may not matter that the income from trading activities is used for charitable purposes or if the organisation has many functions that are non-trading or commercial in character.

Metropolitan Fire and Emergency Services Board

United Firefighters’ Union of Australia & Ors v Metropolitan Fire and Emergency Services Board [1998] FCA 551 (20 May 1988), [(1988) 83 FCR 346].

Facts

The principal activity of the Metropolitan Fire and Emergency Services Board (the Board), established as a statutory corporation, was to respond to fire and other emergencies, an activity which it undertook without charge to the public. The Board's Fire Equipment Services activities, which involved the commercial servicing of fire equipment for commerce, industry and the domestic market generated 5.11% of the Board's revenue.

Outcome

The Court found that the trading activities of the Board generated substantial income and were sufficient to constitute the Board as a trading corporation.

Even though the overwhelming majority of the funds received by the Board were derived from insurance companies, municipal councils and the State Government, the Board’s trading activities were nevertheless sufficient for the Board to be considered a trading corporation.

Relevance

In this case, the fact that trading activities generated only a small proportion of the Board’s overall revenue did not prevent the Board from being characterised as a trading corporation where the ‘trading activities formed a significant proportion of the Board’s overall activities’.

Community services organisation - Outcare

Re Ms Marie Pasalskyj [2015] FWC 7309 (Hampton C, 13 November 2015).

Facts

The applicant alleged that she experienced bullying conduct in her workplace, Outcare. Outcare raised a jurisdictional objection that it was not a trading corporation within the meaning of the Fair Work Act due to its activities and nature. As a result, it contended the applicant was not at work in a constitutionally-covered business.

Outcome

The Commission held that a community services organisation that provides a range of services to offenders, former prisoners and their families is a trading corporation. Activities conducted for the purposes of fundraising were found to have the character of commercial transactions. The Commission determined that the trading activities of the organisation amounted to 11% of its income. This was found to be significant, and sufficient to impact upon the overall character of the organisation. In finding that the organisation was a trading corporation a basis upon which to deal with the merits of application was established.

Relevance

In this case, the altruistic intent of the organisation’s activities did not prevent it being a trading corporation in circumstances where those activities were not insubstantial, trivial, insignificant, marginal, minor or incidental.

Community services organisation - Glossodia

Thurling v Glossodia Community Information and Neighborhood Centre Inc. T/A Glossodia Community Centre [2019] FWCFB 3740 (Catanzariti VP, Hamilton DP, Hampton C, 5 July 2019).

Facts

At first instance the Commission found that Glossodia was not a trading corporation and therefore not a constitutionally-covered business and dismissed the employee’s stop-bullying application. The employee appealed with grounds including that Glossodia’s trading activities included providing before and after school child care for which it charges fees and levies administration fees, and rental fees for the hiring of its facilities, and that these activities comprised somewhere between 27.37 per cent and 35.23 per cent of its total income.

Outcome

The Full Bench granted permission to appeal and considered that the submissions made by Glossodia at first instance, as adopted in the Commission’s decision, placed significant emphasis upon the purpose of the association and very little upon the nature of the purported trading activities themselves. The Full Bench found that the program services conducted by Glossodia were consistent with the purpose of the association but were made available at a cost to the individuals in the community who utilise those services. The services and the associated income represented the buying and selling of those services and a trading activity. The Full Bench concluded that these activities were trading in nature and were sufficient to mean that the Glossodia should have been held to be a trading corporation. The Full Bench upheld the appeal and quashed the decision at first instance. Upon rehearing the Full Bench found that Glossodia was a trading corporation and as a result was conducting a constitutionally-covered business.

Relevance

Whilst perhaps not charged at market rates, the program services were subject to charges that are more than nominal and do not represent the gratuitous provision of a public welfare service in the manner described in E v Red Cross. Rather these services are provided at a cost to the users of those services and the income is not peripheral, insignificant or incidental when considered in the context of the funding and operations of the Glossodia CINC. Indeed, the program services represent a significant part of the operations of the association and almost a third of its total income.

Public transport agency

Roads and Maritime Services v Leeman [2018] FWCFB 5772  (Hatcher VP, Colman DP, Spencer C, 18 September 2018).

Facts

At first instance the Commission found that Roads and Maritime Services (RMS) was a constitutionally-covered business because it was a trading corporation. RMS appealed on grounds including that the Commission failed to take into account RMS’s public purposes and functions and relationships to the State of New South Wales in determining whether RMS’s trading activities were sufficient for it to be characterised as a trading corporation, and that RMS was established as a ‘public transport agency’ by the Transport Administration Act 1988 (NSW) (TA Act), that its statutory functions were overwhelmingly public functions conducted for the public good and were not of a commercial or profit-making nature.

Outcome

The Full Bench found that the functions conferred on RMS by ss.53(1)(a) and (b) of the TA Act were clearly concerned with the conduct of trading activities. These functions are not expressed as being subordinate or incidental to any of RMS’s ‘public’ functions, and indeed the words ‘whether or not related to its activities under this or any other Act’ in s.53(1)(a) make it clear that the RMS is authorised to engage in trading activities in their own right. It is even authorised to do so outside of New South Wales, as s.53(2) makes clear. The Full Bench concluded that engagement in trading activity was a statutory function and purpose of RMS.

Relevance

The conclusion that RMS’s trading activities are substantial and of significance permits it to be characterised as a trading corporation. RMS is not deprived of that character by reference to the purposes for which it was established, its closeness to the State of NSW, the fact that it may be subject to Ministerial direction, or the fact that its functions are predominantly for the public good and not commercially orientated.

Financial corporations

Building Society

Re Ku-Ring-Gai Co-operative Building Society (No 12) Ltd [1978] FCA 50 (18 December 1978), [(1978) 36 FLR 134].

Facts

The income of the applicants in this matter, two co-operative incorporated building societies, was derived from interest paid by members upon loans made to them, management fees, fines and discharge fees paid by members and allowances and commissions received from insurance companies. The revenue outgoings of the applicants consisted of interest on the principal of the bank loan, management fees and administrative expenses. The applicants did not conduct their activities for the purpose of making financial profits but, subject to charging a contribution to managerial and administrative expenses and a difference in the calculation of interest, lend to their members at the same rate as that at which they borrow from the relevant bank.

Outcome

The Federal Court found that the fact that this activity was not for profit, and involved the performance of an important social function, was not determinative. The two co-operative incorporated building societies were found to be financial corporations on the basis that they lent money at interest and were therefore engaged in commercial dealing in finance.

Relevance

An organisation may be a financial corporation even if the organisation is not conducted for profit and involves an important social function. Notwithstanding the restricted scope and limited duration of their activities, each applicant in this matter carried on a business. At the heart of that business were the commercial dealings in finance constituted by the relevant applicant's borrowing and lending of money and the subsequent payments and receipt of money pursuant to obligations and rights resulting from those dealings. Each applicant was formed to carry on that business and their activities were confined to carrying it on. The business which each applicant carried on and which it was formed to carry on was a financial business.

Trustee of Superannuation fund

State Superannuation Board v Trade Practices Commission [1982] HCA 72 (14 December 1982), [(1982) 150 CLR 282].

Facts

The State Superannuation Board (the corporation) was a statutory corporation formed to provide superannuation benefits for state public servants. The corporation argued it was not a financial corporation and instead merely the trustee and administrator of the state public servants superannuation funds.

Outcome

The Court found that the corporation was a financial corporation because it engaged in financial activities on a very substantial scale. Even if the Court confined its attention to such aspects of the corporation's investment activities that involved the making of commercial and housing loans, its business in this respect was very substantial and formed a significant part of its overall activities.

Relevance

In this case there was no doubt that the activities were all entered into for the end purpose of providing superannuation benefits to contributors, but this circumstance constituted no obstacle to the conclusion that the corporation was a financial corporation due to the activities in which it engaged.

NOT a trading or financial corporation

District or amateur sporting organisation

Re Kimberley John Hughes v Western Australian Cricket Association (Inc) and Ors [1986] FCA 357 (27 October 1986), [(1986) 19 FCR 10].

Facts

The applicant was a professional cricketer who contended he was disqualified from district cricket consequent upon his participation in a South African cricket tour. The applicant’s disbarment from playing club cricket was said to be from the Cricket Council’s decision following several meetings. There was no provision in the original rule for disqualification following breach of the rule. The original rule was amended by resolution at Cricket Council meetings. Among other things, the applicant sought relief under the Trade Practices Act 1974 (Cth), which required that at least one of the parties to the relevant contract, arrangement or understanding to be a trading corporation.

Outcome

The Court found that the incorporated cricket clubs that were party to the relevant contract, arrangement or understanding were not trading corporations. (Although the Western Australian Cricket Association with which they were associated was found to be a trading corporation, it was not a party to the relevant agreement). The clubs were basically amateur bodies which did not charge for admission to matches and generally did not pay players. Although they engaged in some trading activities, this was not of sufficient significance to allow them to be characterised as trading corporations.

Relevance

None of the clubs carried on the game of cricket as a trade, though the extent of particular activities varied from club to club. Whilst the clubs had activities which were of a trading nature, in particular the provision of bar facilities, this was not found to be so significant as to impose on the clubs the character of a trading corporation. The principal activity of the clubs was the playing of cricket for pleasure rather than reward.

Charitable organisation

Hardeman v Children’s Medical Research Institute [2007] NSWIRComm 189 (24 September 2007), [(2007) 166 IR 196].

Facts

The applicant sought interlocutory relief from the NSW Industrial Relations Commission restraining the Children’s Medical Research Institute (the Institute) from terminating her contract of employment. The applicant also sought relief declaring her contract was unfair, harsh or unconscionable. The Institute contended the NSW Industrial Relations Commission (the NSWIRC) did not have jurisdiction to grant the relief as the Institute was a constitutional corporation.

Outcome

The Institute was found not to be a trading or financial corporation. The trading activities it did engage in were insubstantial and peripheral to the central activity of medical research, generating only approximately 2.5% of its revenue. The NSWIRC also assessed that the Institute's financial activities were not a sufficiently significant proportion of its overall activities. In broad terms they were: the Institute's conscious passivity regarding its investments; the limited financial deliberation or interaction and acts related to finance; its minimal staffing arrangements; and the extensive utilisation of external financial advice and expertise.

Relevance

The trading and financial activities were not sufficiently substantial to render the medical research establishment a trading or financial corporation.

Community based organisation

Re Ms McInnes [2014] FWC 1395 (Hampton C, 24 March 2014).

Facts

Ms McInnes made an application under s.789FC of the Fair Work Act for an order to stop bullying. The workplace concerned was conducted by Peninsula Support Services Inc. T/A Peninsula Support Services (PSS). PSS was a community based organisation providing support to people with psychiatric disabilities and their carers living within the Southern metropolitan region in Victoria.

PSS objected to the application on the basis that it was not a trading corporation within the meaning of Fair Work Act due to its activities and nature and as a result, the worker was not at work in a constitutionally-covered business.

Outcome

The Commission found that the assessment of the nature of the corporation was one of fact and degree. When assessed in context, the income from trading activities, and those that might be considered to be trading activities, was not significant in either relative or absolute terms. Rather, those activities in the overall circumstances evident at PSS could be categorised as being insignificant, peripheral and incidental in the sense contemplated by the authorities.

The Commission was satisfied that PSS was not a trading corporation. Given the absence of any other circumstances that would make the workplace a constitutionally-covered business, there was no jurisdiction for the Commission to deal with the application further. The application was dismissed.

Relevance

Where trading or financial activities are insignificant, peripheral or incidental, the organisation will not be a trading or financial corporation.

References

[1] Fair Work Act s.12.

[2] Australian Constitution s.51(xx).

[3] The State of New South Wales v the Commonwealth of Australia [1990] HCA 2 (8 February 1990) at para. 3 (Deane J), [(1990) 169 CLR 482 at p.504].

[4] ibid.

[5] A Stewart, Stewart’s Guide to Employment Law (4th ed, 2013), at p.36.

[6] ibid., at p.34.

[7] The State of New South Wales v the Commonwealth of Australia [1990] HCA 2 (8 February 1990) at para. 3 (Deane J), [(1990) 169 CLR 482 at p.504].

[8] See also Gardner v Milka-Ware International Ltd [2010] FWA 1589 (Gooley C, 25 February 2010) at para. 24.

[9] See, however, Fair Work Ombudsman v Valuair Limited (No 2) [2014] FCA 759 (24 July 2014) (Buchanan J) in relation to the employment of foreign-based cabin crew by foreign corporations where those crew spend a small and transient proportion of overall time on duty in Australia.

[10] Re Ku-Ring-Gai Co-operative Building Society (No 12) Ltd [1978] FCA 50 (18 December 1978) at para. 8 (Bowen CJ), [(1978) 36 FLR 134 at p.139].

[11] R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6 (27 February 1979) at para. 53 (Barwick CJ), [(1979) 143 CLR 190 at p.208].

[12] ibid., at para. 10 (Murphy J), [(1979) 143 CLR 190 at p.239].

[13] ibid., at para. 31 (Mason J), [(1979) 143 CLR 190 at p.233].

[14] Garvey v Institute of General Practice Education Incorporated [2007] NSWIRComm 159 (28 June 2007) at para. 30, [(2007) 165 IR 62].

[15] University of Western Australia v National Tertiary Education Industry Union Print P1962 (AIRC, O’Connor C, 20 June 1997) at para. 11; citing R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6 (27 February 1979) at para. 57 (Barwick CJ), [(1979) 143 CLR 190 at p. 209].

[16] University of Western Australia v National Tertiary Education Industry Union Print P1962 (AIRC, O’Connor C, 20 June 1997) at para. 12; citing Re Australian Beauty Trade Suppliers Limited v Conference and Exhibition Organisers Pty Limited [1991] FCA 154 (18 April 1991) at para. 11, [(1991) 29 FCR 68 at p. 72].

[17] Re Ku-Ring-Gai Co-operative Building Society (No.12) Ltd [1978] FCA 50 (18 December 1978) at para. 4 (Bowen CJ), [(1978) 36 FLR 134 at p.138].

[18] State Superannuation Board v Trade Practices Commission (1982) HCA 72 (14 December 1982) at para. 19 (Mason, Murphy and Deane JJ), [(1982) 150 CLR 282 at p.303].

Updated time

Last updated

02 October 2019

 

 

Bookmark/Search this post

Facebook logo Google+ logo Twitter logo

 

Page feedback

Did you find what you were looking for?

Please note: If you would like a response to your question, please contact us or lodge a complaint. This feedback is only about content on this page and will be used to improve website usability. The comments are not monitored for personal information or workplace complaints. 

Mini sites

  • Annual Report 2013–14
    • Reader's guide
    • 1. Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements 2013–14
    • 2. About the Commission
      • Who we are and what we do
      • Our structure
      • Outcome and program structure
      • Our clients and stakeholders
        • In focus—Small Business Outreach
      • Our future direction
        • In focus–New website
        • In focus–Virtual tour
        • In focus–Mock hearings
      • Our history
    • 3. Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
        • In focus–Pay Equity Unit
      • Orders relating to industrial action
        • Case study–Emergency Services Telecommunications Authority
        • Case study–Sydney Water
      • Processes relating to modern awards
        • In focus–4 yearly review of awards
      • Approving agreements
        • Case study–Catholic Education Victoria
        • Case study–Orora Fibre Packaging
      • Regulating registered organisations
      • Determining anti-bullying applications
        • In focus–Setting up the anti-bullying jurisdiction
        • Case study–Anti-bullying
      • Key performance indicators
    • 4. Management and accountability
      • Corporate governance
      • Planning and development
      • Ethical standards
      • Accountability
      • Our workforce
      • Employee pay and entitlements
      • Service Charter, complaints and Code of Conduct
      • Financial management
    • 5. Appendices
      • A | Member activities
      • B | List of Members
      • C | Panel assignments
      • D | Methodology for Chart 2–Matters dealt with by the Commission and its predecessors 1998–99 to 2013–14
      • E | Promoting fairness and improving access
      • F | Efficiency and innovation
      • G | Increasing accountability
      • H | Productivity and engaging with industry
      • I | Documents relating to the work of the Commission
      • J | Fair Work Commission addresses
      • K | Lodgment and case load statistics
      • L | Methodology for Chart 6–Number of Commission sittings, various
      • M | Subscription services
      • N | Information on specific statutory requirements
      • O | Fraud Control Certificate
      • P | Fair Work Commission Service Charter
      • Q | Financial statements
        • Independent Audit Report
        • Statement by the General Manager and Chief Financial Officer
        • Statement of Comprehensive Income
        • Statement of Financial Position
        • Statement of Changes in Equity
        • Cash Flow Statement
        • Schedule of Commitments
        • Schedule of Administered Items
        • Notes to the financial statements
          • Note 1: Summary of Significant Accounting Policies
          • Note 2: Events after the Reporting Period
          • Note 3: Expenses
          • Note 4: Income
          • Note 5: Fair Value Measurements
          • Note 6: Financial Assets
          • Note 7: Non-financial Assets
          • Note 8: Payables
          • Note 9: Provisions
          • Note 10: Cash Flow Reconciliation
          • Note 11: Contingent Liabilities and Assets
          • Note 12: Senior Executive Remuneration
          • Note 13: Remuneration of Auditors
          • Note 14: Financial Instruments
          • Note 15: Financial Assets Reconciliation
          • Note 16: Administered Income
          • Note 17: Administered Payables
          • Note 18: Administered Cash Flow Reconciliation
          • Note 19: Administered Contingent Liabilities and Assets
          • Note 20: Appropriations
          • Note 21: Compliance with Statutory Conditions for Payments from the Consolidated Revenue Fund
          • Note 22: Compensation and Debt Relief
          • Note 23: Reporting of Outcomes
          • Note 24: Net Cash Appropriation Arrangements
      • R | Agency resource statement
      • S | Expenses and resources for outcome
      • T | Glossary
      • U | Acronyms and abbreviations
      • V | List of requirements
    • Letter of transmittal
    • Inquiries and copyright
    • Videos
    • Downloads
  • Annual Report 2014–15
    • Introduction
    • Preliminary information
      • Contents
      • Letter of transmittal
      • Readers guide
    • Part 1 Overview
      • President's introduction
      • General Manager's overview
      • Performance summary
      • Major achievements
    • Part 2 About the Commission
      • Outcome and programme structure
      • Who we are and what we do
      • Our structure
      • Our history
      • Our clients and stakeholders
      • Our future direction
      • Future directions - Continuing the change program
    • Part 3 Performance reporting
      • Overview
      • Legislative amendments
      • Workload
      • Timeliness benchmarks
      • Resolving disputes
      • Unlawful termination disputes
      • Determining unfair dismissal applications
      • Setting the minimum wage
      • Orders relating to industrial action
      • Processes relating to modern awards
      • Enterprise agreements
      • Determining anti-bullying applications
      • Regulating registered organisations
      • Key performance indicators
    • Part 4 Management and accountability
      • Corporate governance
      • Planning and development
      • Workplace health and safety
      • Business continuity
      • Ethical standards
      • Fair Work Commission values
      • Freedom of information
      • Accountability
      • The Commission's workforce
      • Employee pay and entitlements
      • Service Charter, complaints and code of conduct
      • Financial management
      • Agency resource statement
      • Expenses and resources for outcome
    • Acronyms and abbreviations
    • Part 5 Appendices
      • Appendix A
      • Appendix B
      • Appendix C
      • Appendix D
      • Appendix E
      • Appendix F
      • Appendix G
      • Appendix H
      • Appendix I
      • Appendix J
      • Appendix K
      • Appendix L
      • Appendix M
      • Appendix N
      • Glossary
  • Annual Report 2015–16
    • Preliminary information
      • Letter of transmittal
      • Readers' guide
    • Part 1: Overview
      • President's report
      • General Manager's report
    • Part 2: About the Commission
    • Part 3: Performance
      • Performance summary
      • Annual performance statements 2015–16
      • Operational performance
        • Applications lodged
        • Hearings & conferences
        • Information & assistance
        • Major application types
          • Unfair dismissals
          • General protections & unlawful termination disputes
          • Anti-bullying
          • Enterprise agreements
          • Resolving disputes
          • Industrial action
        • New Approaches
        • Setting the minimum wage
        • Modern awards
        • Regulating registered organisations
        • Appeals
      • Significant decisions
      • Case studies
        • Case study: Enterprise agreements pilot
        • Case study: Patrick & the MUA
        • Case study: Encouraging regulatory compliance
    • Part 4: Management & accountability
      • Corporate governance
      • Financial management
      • Other mandatory information
    • Appendices
      • Appendix A: List of Members
      • Appendix B: Panel assignments
      • Appendix C: Member activities
      • Appendix D: Lodgment & case load statistics
      • Appendix E: Registered organisations data
      • Appendix F: Performance reporting for the RSRT
      • Appendix G: Financial statements
      • Appendix H: Subscription services
      • Appendix I: Service charter
      • Appendix J: List of requirements
      • Appendix K: Expense & resources outcome, agency resource statement & financial performance analysis
    • Glossary
    • Acronyms & abbreviations
    • Contact us
  • Annual Wage Review 2013–14
  • Anti-bullying benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is workplace bullying?
    • Who is covered by workplace bullying laws?
      • Definition of ‘worker’
      • Definition of ‘constitutionally-covered business’
        • What is a person conducting a business or undertaking?
        • What is a Territory or a Commonwealth place?
        • What is a constitutional corporation?
        • What is the Commonwealth?
    • When is a worker bullied at work?
      • What does ‘at work’ mean?
      • Risk of continued bullying
      • Reasonable management action
    • Making an application
    • Responding to an application
    • If the worker has been dismissed
    • Commission processes
      • Procedural issues
      • Representation by lawyers and paid agents
    • Evidence
    • Outcomes
      • Dismissing an application
      • Contravening an order of the Commission
    • Associated applications
      • Costs
      • Appeals
      • Role of the Court
  • Corporate Plan 2018–19
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Culture
    • 5. Capability
    • 6. Performance
  • Corporate Plan 2019–20
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Our focus
    • 5. Culture
    • 6. Capability
    • 7. Performance
  • Corporate Plan 2020-21
    • 1. Message from the General Manager
    • 2. Purpose
    • 3. Operating environment
    • 4. Key activities
    • 5. Capability
    • 6. Risk
    • 7. Performance
  • Enterprise agreements benchbook
    • Glossary & naming conventions
    • Overview of benchbook
    • What is an enterprise agreement?
      • Single-enterprise agreement
      • Multi-enterprise agreement
      • Differences between single and multi-enterprise agreements
      • Greenfields agreement
    • Content of an enterprise agreement
      • Permitted matters
      • Coverage
      • Scope – who will be covered?
      • Terms & conditions of employment
      • Base rate of pay
      • Nominal expiry date
      • Mandatory terms
      • Flexibility term
      • Consultation term
      • Dispute settlement term
      • Optional terms
      • Terms that cannot be included
        • Terms that exclude the NES
        • Unlawful terms
        • Designated outworker terms
    • Agreement making process
      • Representation
      • Employee right to be represented
      • Bargaining representatives
    • Bargaining
      • Good faith bargaining
      • How long does bargaining take?
    • Voting
      • Voting process
      • Who can vote?
      • Timeframe for vote
      • Voting methods
      • When is an agreement made?
      • If parties cannot agree
    • Making an application
      • Common defects & issues
        • National Employment Standards
        • Better off overall test
        • Mandatory terms
        • Other terms
        • Pre-approval requirements
        • Forms & lodgment
      • Who must apply
      • Timeframe to apply
      • Material to accompany application
      • Signing an agreement
      • Employer must notify employees
    • Commission approval process
      • Genuine agreement
        • Minor procedural or technical errors
      • Where a scope order is in operation
      • Particular kinds of employees
      • Better off overall test (BOOT)
        • When an agreement passes
        • Classes of employees
        • Which award applies
        • Advice about coverage
        • Loaded rates of pay
      • Public interest test
      • Undertakings
      • Powers of the Commission
    • Associated applications
      • Majority support determinations
      • Authorisations to commence bargaining
        • Single interest employer authorisations
        • Ministerial declaration
        • Low-paid authorisations
      • Scope orders
      • Bargaining orders
      • Serious breach declarations
      • Disputes
      • Workplace determinations
        • Low-paid
        • Industrial action related
        • Bargaining related
      • Role of the Court
      • Appeals
      • Varying enterprise agreements
        • Varying by agreement
        • Ambiguity or uncertainty
        • Discrimination
      • Terminating enterprise agreements
        • Terminating by agreement
        • After its nominal expiry date
      • Terminating individual agreements
  • General Manager reporting requirements
  • General protections benchbook
    • Glossary & naming conventions
    • Overview of benchbook
      • When is a person covered by the general protections?
    • What are the general protections?
    • How do the general protections work?
      • Rebuttable presumption as to reason or intent
    • Coverage for general protections
      • What is a constitutionally-covered entity?
      • What is a Territory or a Commonwealth place?
      • What is a trade and commerce employer?
      • What is a Territory employer?
      • What is a national system employer?
    • What if I am not covered?
    • What is adverse action?
      • What is dismissal?
      • Injuring employee in their employment
      • Altering the position of the employee
      • Discriminating
      • Threatened action and organisation of action
      • Exclusions
    • Workplace rights protections
      • Meaning of workplace right
      • Coercion
      • Undue influence or pressure
      • Misrepresentations
      • Requiring the use of COVIDSafe
    • Industrial activities protections
      • What are industrial activities?
      • Coercion
      • Misrepresentations
      • Inducements – membership action
    • Other protections
      • Discrimination
        • Race
        • Colour
        • Gender identity & sexual orientation
        • Age
        • Physical or mental disability
        • Marital status
        • Family or carer’s responsibilities
        • Pregnancy
        • Religion
        • Political opinion
        • National extraction
        • Social origin
      • Exceptions
      • Temporary absence – illness or injury
      • Bargaining services fees
      • Coverage by particular instruments
      • Coercion – allocation of duties to particular person
    • Sham arrangements
      • Misrepresenting employment
      • Dismissing to engage as independent contractor
      • Misrepresentation to engage as independent contractor
    • Making an application
      • Dismissal applications
        • Timeframe for lodgment
        • Extension of time for lodging an application
      • Non-dismissal applications
      • Other types of applications
        • Multiple actions relating to dismissal
        • Unfair dismissal
        • Unlawful termination
        • Court application
        • Discrimination
    • Power to dismiss applications
    • Evidence
    • Commission process
      • Conferences & hearings
      • Dealing with different types of general protections disputes
      • Rescheduling or adjourning matters
      • Representation by lawyers and paid agents
      • Bias
    • Outcomes
    • Costs
      • When are costs ordered by the Commission?
      • Costs against representatives
    • Appeals
    • Role of the Court
      • Enforcement of Commission orders
      • Types of order made by the Court
  • Industrial action benchbook
    • Glossary & naming conventions
    • What is industrial action?
      • Unprotected industrial action
        • Orders to stop or prevent unprotected industrial action
      • Protected industrial action
        • Immunity
        • Common requirements
        • Employee claim action
        • Employer response action
        • Employee response action
        • Pattern bargaining
    • Taking protected industrial action
      • Protected action ballots
        • Who may apply?
        • Making an application
        • Commission process
        • Varying a protected action ballot order
        • Revoking a protected action ballot order
      • Voting
        • Ballot agents
        • Who may vote – roll of voters
        • Ballot papers
        • Voting procedure
        • Scrutiny of the ballot
        • Results of the ballot
        • When is industrial action authorised?
      • Notice requirements
      • Commencing protected industrial action
    • Payments relating to industrial action
      • Partial work bans
      • Unprotected industrial action – payments
      • Standing down employees
    • Suspension or termination of protected industrial action
      • Powers of the Commission
        • When the Commission may suspend or terminate
        • When the Commission must suspend or terminate
          • Threats to persons or the economy
          • Suspending industrial action
        • Requirements relating to a period of suspension
      • Powers of the Minister
    • Enforcement
    • Appeals
  • JobKeeper benchbook
    • Glossary
    • Introduction
      • Provisions of the Fair Work Act
    • JobKeeper enabling directions – general
      • Service & entitlement accrual
      • When a JobKeeper enabling direction will have no effect
      • Stand downs that are not jobkeeper enabling stand downs
      • Employee requests
    • Jobkeeper enabling stand down directions – entitled employers
      • Directions about duties & location of work
    • Jobkeeper enabling directions – legacy employers
      • Jobkeeper enabling stand down directions – legacy employers
      • Directions about duties & location of work – legacy employers
      • Termination of a jobkeeper enabling direction – legacy employers
    • Agreements about days or times of work
      • Agreements about days or times of work – entitled employers
      • Agreements about days or times of work – legacy employers
      • Termination of an agreement about days or times of work
    • Employer payment obligations
      • Wage condition
      • Minimum payment guarantee
      • Hourly rate of pay guarantee
    • Agreements about annual leave
    • Protections
    • Disputes we cannot assist with
    • Applications to deal with a dispute
      • Who can make an application
      • Responding to an application
      • Objecting to an application
      • Discontinuing an application
    • Commission process
      • General information
      • Conferences & hearings
      • Procedural issues
    • Evidence
    • Outcomes
      • Contravening an order
      • Appeals
      • Role of the Court
    • Attachments
  • Modern Awards Review 2012
    • Introduction
      • Modern Awards Review 2012
  • Sir Richard Kirby Archives
    • Home
    • Sir Richard Kirby
    • About the Archives
    • Cases
      • Case
      • The Honourable Justice Henry Bournes Higgins (1851–1929)
    • Centenary
    • Exhibitions
      • Exhibition launch: The history of the Australian minimum wage
      • Guide – Opening Exhibition
      • International Industrial Dispute Resolution Conference
        • Speaker – Justice Alan Boulton AO
        • Speaker – Mr Arthur F Rosenfeld
        • Speaker – Mr Craig Smith
        • Speaker – Mr James Wilson
        • Speaker – Mr Kieran Mulvey
        • Speaker – Mr Peter Anderson
        • Speaker – Ms Ginette Brazeau
        • Speaker – Ms Nerine Kahn
        • Speaker – Ms Rita Donaghy CBE
        • Speaker – Ms Sharan Burrow
        • Speaker – Senator Guy Barnett
        • Speaker – The Hon. Julia Gillard
      • The Journey
        • Court
          • Early years
          • New court
            • Profile of Justice O'Connor
            • First registration of an industrial organisation
          • Judges & conciliators
          • The Boilermakers' Case
            • The dispute & appeals
        • Commission
          • Post Boilermakers 1956-1973
          • Hawke & Keating governments
            • Industrial Relations Court
          • Howard Government
        • Fair Work Australia
          • The Fair Work system
          • About Fair Work Australia
          • Transition
          • Fair Work timeline
      • The history of the Australian minimum wage
        • The Great Strikes
        • The first minimum wage: The Victorian minimum wage
        • The Harvester Decision
        • The impact of the Great Depression
        • Working it out: Cost of living versus capacity to pay
        • The removal of award rate discrimination
        • The wage explosion & economic crisis
        • The modern era: The development of a modern minimum wage
      • Treasures of the archives
        • Launch speech?Treasures of the Archives
        • 1. Professor Isaac
        • 2. Register of organisations
        • 3. Perlman letters
        • 4. Sir Richard Kirby photograph
        • 5. Oral history program
        • 6. AIRC sign
        • 7. Folder of wage decisions
        • 8. Centenary exhibition
        • 9. Women's exhibition poster
        • 10. Isaac letters
    • The modern era
    • Past Presidents
    • Past Members
      • Past Members 1956 to present
      • Past Members to 1956
  • Unfair dismissals benchbook
    • Overview of unfair dismissal
    • Glossary & naming conventions
    • Coverage for unfair dismissal
      • Who is protected from unfair dismissal?
      • People excluded from national unfair dismissal laws
        • Independent contractors
        • Labour hire workers
        • Vocational placements & volunteers
        • Public sector employment
      • Constitutional corporations
      • High income threshold
      • Modern award coverage
      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

Footer

  • Site map
  • Legal
  • Copyright
  • Accessibility

Coronavirus (COVID-19) information