Local Council not under WorkChoices - WAIRC

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Local Council not under WorkChoices - WAIRC

A local Council in WA is not covered by WorkChoices legislation according to the senior commissioner in the WA Industrial Relations Commission (WAIRC).

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A local Council in WA is not covered by WorkChoices legislation according to the senior commissioner in the WA Industrial Relations Commission (WAIRC).

The Commissioner focused on whether the Council was 'trading' to the degree that it would be considered a trading corporation for WorkChoices purposes. The decision was that the commercial activities of the Council were too minor in the total scale of Council activities to make the Council a trading corporation.

It followed that an unfair dismissal claim by a former caravan park manager employed by the Council was able to proceed as the WAIRC had jurisdiction.

Trading activities not significant

The Senior Commissioner examined the evidence and the relevant case law and concluded:

'Section 51(xx) of the Australian Constitution defines a constitutional corporation among others as a trading and financial corporation formed within the limits of the Commonwealth ...

'In my opinion, when careful regard is had to the authorities referred to by the Full Bench that inherent in the concept of "trading" or "trade" in the authorities referred to by the Full Bench is a transaction or dealing between persons whether in person or through a corporate entity …

'Such a transaction or dealing would include a sale, an exchange of goods or services (such as barter) or a tripartite arrangement whereby A agrees to pay B to provide a service to C ...

'Although the Council engages in activities which are of a trading nature and some of these activities are activities which could be carried out as a business, such as the provision of a caravan park, contract private works and hire of equipment, I do not regard the trading activities of the Council as a whole to impose on the Council the character of a trading corporation ...

'The reason why I have reached this view is that none of the trading activities when considered collectively are carried out on a significant scale ...

'For the reasons set out above I will make a declaration that during the period the Applicant was employed by the Council, the Council was not a trading corporation and the matter will be listed for hearing on a date to be fixed.'

Jacqueline Ann Bysterveld v Shire of Cue 2007 WAIRC 00941 (20 July 2007)

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