Trust fell outside WorkChoices coverage

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Trust fell outside WorkChoices coverage

The SA Industrial Relations Commission has found that WorkChoices legislation did not extend to cover a trust that operated a veterinary clinic.

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The SA Industrial Relations Commission has found that WorkChoices legislation did not extend to cover a trust that operated a veterinary clinic.

Consider actual employer

Deputy President Hampton noted:

'Considerable debate will no doubt ensue about the meaning and application of the concept of a constitutional corporation in the months and years to follow.

It is sufficient for present purposes for me to deal with these applications on the basis that on any view as adopted by the High Court to date, the concept of a constitutional corporation relevantly requires that the employer be a corporate entity.

Unincorporated bodies or persons do not fall within this category notwithstanding the extent and substance of their financial and/or trading activities. These two applications involve trust arrangements.'

Facts point to State coverage

The Commission went on to state:

'Where the trustee is a corporation, it might be necessary to consider whether it is the actual employer and whether it is a trading or financial corporation within the meaning of the Commonwealth Act.

Where the trustee is a (non-corporate) family, partnership or individual trustee it might also be necessary to consider whether the beneficiaries include a trading or financial corporation and if so, to determine which entity is the actual employer of the employees for present purposes.

The circumstances of the employers in this matter IJ and CA Hough are joint trustees of the IJ and CA Hough Family Trust. That trust is nominated as the employer in the relevant Agreement although it is likely that the two individuals are at law the employer.

In any event, there are no corporate entities involved in this trust arrangement. In the case of the Glenelg Veterinary Clinic, the employer has been identified as the Glenelg Veterinary Clinic Trust….'

Dr IJ Hough Veterinary Surgery Veterinary Staff EA 2006 and Glenelg Veterinary Clinic Veterinary Staff EA 2006. SA IRC 10 - 5/5/06

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