1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
K.L.
v
Trade & Investment Queensland
(AB2016/365)
COMMISSIONER HUNT BRISBANE, 8 JULY 2016
Application for an FWC order to stop bullying – workplace conducted by State government
department under the terms of State legislation – whether workplace is constitutionally-
covered – not conducted by the Commonwealth or in a Territory – whether trading or
financial corporation – not a corporation – no jurisdiction – application dismissed.
Background
[1] On 11 April 2016, K.L. made an application for an order to stop bullying under
s.789FC of the Fair Work Act 2009 (the Act).
[2] The application cited Trade and Investment Queensland (TIQ) as his employer. The
alleged bullying conduct is said to have occurred in the workplace by a fellow employee,
named by K.L in the application.
[3] TIQ is the Queensland Government’s principal export promotion and investment
attraction agency. It facilitates a range of public services to Queensland businesses across
metropolitan and regional Queensland to develop sustainable export markets, improve export
capabilities and to promote investor-ready opportunities to international investors.1
[4] TIQ has raised a jurisdictional objection in relation to the matter; namely, that the
workplace is not a constitutionally-covered business and as a result, the application does not
fall within the coverage of the anti-bullying provisions of the Act.
[5] The application was listed for hearing before me on 30 May 2016 to determine the
jurisdictional objection. Leave was sought by TIQ to be represented by a lawyer, Mr
Matthew Smith of Sparke Helmore Lawyers. Leave to appear was granted pursuant to
s.596(2)(a) taking into account the complexity of the matter before the Commission. K.L.
appeared on his own behalf.
[2016] FWC 4174 [Note: An appeal pursuant to s.604 (C2016/1633) was
lodged against this decision - refer to Full Bench decision dated
15 November 2016 [[2016] FWCFB 6615] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB6615.htm
[2016] FWC 4174
2
Coverage of the anti-bullying laws
[6] In order for the Fair Work Commission (the Commission) to make orders where a
worker alleges bullying while at work, the Commission must first find that a worker has been
bullied at work within the meaning of the Act. Section 789FD is in the following terms:
“789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of
which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action
carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work
Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or
Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
[7] The first matter to determine within the above definition is the workplace where the
applicant who brings an anti-bullying application is at work when the alleged unreasonable
conduct takes place. That is, the conduct must take place whilst the worker is at work in a
constitutionally-covered business.
[8] In this case, the workplace is the office of a Queensland State Government
corporation.
[2016] FWC 4174
3
[9] The workplace in this matter is not located in a Territory.2 There is no suggestion that
it is conducted by the Commonwealth or a Commonwealth authority. Assuming for present
purposes that the workplace is a business or undertaking within the meaning of the Work
Health and Safety Act 2011, in order to be a constitutionally-covered business and fall within
the scope of s.789FD, it must be conducted by a constitutional corporation.
Is the workplace conducted by a constitutional corporation?
[10] The term “constitutional corporation” is defined in s.12 of the Act in the following
terms:
“constitutional corporation means a corporation to which paragraph 51(xx) of the
Constitution applies.”
[11] The Constitution, in effect, defines “constitutional corporations” as follows:
“Foreign corporations, and trading or financial corporations formed within the limits of
the Commonwealth.”3
Creation of TIQ
[12] TIQ was established by the Queensland State Government by the passing of the Trade
Investment Queensland Act 2013 (TIQA). From April 2015, TIQ has reported to the Deputy
Premier (who also is the Minister for Transport; the Minister for Infrastructure, Local
Government and Planning; and the Minister for Trade).
[13] Section 7 of the TIQA details how TIQ is established:
“7 Establishment and status
(1) Trade and Investment Queensland (TIQ) is established.
(2) TIQ—
(a) is a body corporate; and
(b) has a seal; and
(c) may sue and be sued in its corporate name.”
[14] Section 8 of the TIQA is in the following terms:
“(1) TIQ represents the State.
(2) Without limiting subsection (1), TIQ has the status, privileges and immunities of the
State.”
The test of ‘national system employer’ as opposed to ‘constitutional corporation’
[15] TIQ has been declared by s.145D of the Industrial Relations Regulation QLD 2011 not
to be a ‘national system employer’ as defined by s.14 of the Act. Section 14(2) of the Act
determines that a particular employer is not a national system employer if that employer is
(relevant to this application), a body established for a public purpose by or under a law of a
State or Territory.
http://www.austlii.edu.au/au/legis/cth/num_act/whasa2011218/
http://www.austlii.edu.au/au/legis/cth/num_act/whasa2011218/
[2016] FWC 4174
4
[16] It is true that TIQ is not a national system employer. The effect of this on the
application before the Commission is, however, not linked. The fact that TIQ is not a national
system employer would certainly prevent an employee from bringing an application for unfair
dismissal; for example, it would be necessary in that instance, to bring an application before
the Queensland Industrial Relations Commission.
[17] The test in determining an application made in the anti-bullying jurisdiction is whether
the worker is at work at a constitutional corporation; that is, foreign corporations, and trading
or financial corporations formed within the limits of the Commonwealth.
[18] There is no assertion that TIQ is a foreign corporation, and accordingly, I am required
to determine whether TIQ is a trading corporation, a financial corporation, or neither.
[19] K.L. does not assert that TIQ is a financial corporation and I find that it is not a
financial corporation.
Is the workplace a trading corporation?
[20] The approach of the Courts and Tribunals to the meaning of a trading corporation has
been conveniently summarised by Steytler P in Aboriginal Legal Service (WA) Inc v
Lawrence (No 2.)4 (Lawrence). Having reviewed the developments in the approach of the
High Court to arrive at what might be described as the activities test, His Honour found as
follows (footnotes and references omitted):
“68 The more relevant (for present purposes) principles that might be drawn from
these and other cases are as follows:
(1) A corporation may be a trading corporation even though trading is not its
predominant activity: Adamson (239); State Superannuation Board (303 -
304); Tasmanian Dam case (156, 240, 293); Quickenden [49] - [51],
[101]; Hardeman [18].
(2) However, trading must be a substantial and not merely a peripheral
activity: Adamson (208, 234, 239); State Superannuation Board (303 - 304); Hughes v
Western Australian Cricket Association Inc [1986] FCA 357; (1986) 19 FCR 10,
20;Fencott (622); Tasmanian Dam case (156, 240, 293); Mid
Density (584); Hardeman [22].
(3) In this context, 'trading' is not given a narrow construction. It extends beyond
buying and selling to business activities carried on with a view to earning revenue and
includes trade in services: Ku-ring-gai (139, 159 - 160); Adamson (235);Actors and
Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA
23; (1982) 150 CLR 169, 184 - 185, 203; Bevanere Pty Ltd v Lubidineuse [1985] FCA
134; (1985) 7 FCR 325, 330; Quickenden [101].
(4) The making of a profit is not an essential prerequisite to trade, but it is a usual
concomitant: St George County Council (539, 563, 569); Ku-ring-gai (140,
167); Adamson (219); E (343, 345); Pellow [28].
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281985%29%207%20FCR%20325?stem=0&synonyms=0&query=%27789FC%27%20and%20%27constitutional%20corporation%27
http://www.austlii.edu.au/au/cases/cth/FCA/1985/134.html
http://www.austlii.edu.au/au/cases/cth/FCA/1985/134.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281982%29%20150%20CLR%20169?stem=0&synonyms=0&query=%27789FC%27%20and%20%27constitutional%20corporation%27
http://www.austlii.edu.au/au/cases/cth/HCA/1982/23.html
http://www.austlii.edu.au/au/cases/cth/HCA/1982/23.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281986%29%2019%20FCR%2010?stem=0&synonyms=0&query=%27789FC%27%20and%20%27constitutional%20corporation%27
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b1986%5d%20FCA%20357?stem=0&synonyms=0&query=%27789FC%27%20and%20%27constitutional%20corporation%27
[2016] FWC 4174
5
(5) The ends which a corporation seeks to serve by trading are irrelevant to its
description: St George County Council (543, 569); Ku-ring-gai (160); State
Superannuation Board (304 - 306); E (343). Consequently, the fact that the trading
activities are conducted is the public interest or for a public purpose will not
necessarily exclude the categorisation of those activities as ‘trade’: St George County
Council (543) (Barwick CJ); Tasmanian Dam case (156) (Mason J).
(6) Whether the trading activities of an incorporated body are sufficient to justify its
categorisations as a ‘trading corporation’ is a question of fact and
degree: Adamson (234) (Mason J); State Superannuation
Board (304); Fencott (589);Quickenden [52], [101]; Mid Density (584).
(7) The current activities of the corporation, while an important criterion for
determining its characterisation, are not the only criterion. Regard must also be had to
the intended purpose of the corporation, although a corporation that carries on trading
activities can be found to be a trading corporation even if it was not originally
established to trade: State Superannuation Board (294 - 295, 304 - 305); Fencott (588
- 589, 602, 611, 622 - 624); Hughes (20); Quickenden [101]; E (344);Hardeman [18].
(8) The commercial nature of an activity is an element in deciding whether the activity
is in trade or trading: Adamson (209, 211); Ku-ring-gai (139, 142, 160,
167); Bevanere (330); Hughes (19 - 20); E (343); Fowler; Hardeman [26].”
[21] This summary was adopted by the Full Court of the Federal Court in Bankstown
Handicapped Children’s Centre v Hillman.5
[22] The decision of the High court in Queensland Rail6 examined whether an authority,
established under an act of Parliament of the Queensland Government is a trading
corporation. The relevant authority is legislated to have functions including managing
railways, controlling stock on railways, providing rail transport services, including passenger
services and providing services relating to rail transport services. The authority is to carry out
its functions as a commercial enterprise, pay dividends to the State, and to provide to the
responsible Ministers each year an estimate of its profit for the financial year. Furthermore,
the authority is required to pay to the State Treasurer an amount equal to the amount for
which it would have been liable to pay tax imposed under a Commonwealth Act.
[23] The High Court held that despite the authority’s activities effectively being a supplier
of labour hire to a related entity and yielding no profit; in combination with the indices in
paragraph [22], it was found to be a trading corporation.
Evidence of TIQ
[24] TIQ contends that it is not a trading corporation due its activities and nature, and as a
result, the workplace is not conducted by a constitutionally-covered business. In support of
that proposition, it relies upon the evidence of Mr Paul Bracegirdle, Chief Financial Officer.
[2016] FWC 4174
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[25] Mr Bracegirdle’s evidence is that TIQ operates across four priority sectors:
(a) food and agriculture;
(b) mining and resources,
(c) international education and urban infrastructure; and
(d) knowledge industry.
[26] TIQ assists businesses within Queensland to grow their export business. There are
international offices in 11 countries to help facilitate export opportunities. Trade
Commissioners are employed in the various locations. Queensland businesses are referred to
as ‘clients’.
[27] TIQ does not charge a fee for services provided to the clients of TIQ. An example was
used by TIQ in evidence7:
Mr Smith: Okay. Just for complete clarity, you referred to clients earlier,
do you charge those clients that you do work for?
Mr Bracegirdle: No, there’s no fees, apart from – so there’s no commercial time
cost charges, there is only the minor cost recovery items that are
covered in some of those sundry revenue amounts.
Mr Smith: All right. So if I’m running a business and I want to export
wheat to China and I come to seek assistance from TIQ do you
charge me for those services?
Mr Bracegirdle: There’s no fee for service in that instance.
Mr Smith: Do you charge for sale of any goods whatsoever?
Mr Bracegirdle: No.
[28] TIQ’s Annual Report 2014-2015 was admitted into evidence. The 2014-2015
financial year was the first full year of operation of TIQ. Between 1 July 2013 and 31 January
2014 it had performed its functions within the Queensland Treasure and Trade Department. It
had been established in its own right on 1 February 2014, and accordingly, operated for only
part of the 2013-2014 financial year. I accept that I should use the financials contained within
the 2014-2015 in the consideration as to whether TIQ is a trading corporation.
[2016] FWC 4174
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[29] The financial statement declares the following income and expenses:
$000
Income from Continuing Operations
User Charges and fees 583
Grants and other contributions 32,197
Other revenue 766
____________
Total Income from Continuing Operations 33,546
____________
Expenses from Continuing Operations
Employee expenses 19,707
Supplies and services 13,531
Depreciation and amortisation 201
Other expenses 230
____________
Total Expenses from Continuing Operations 33,669
____________
Operating Result from Continuing Operations (123)
____________
Total Comprehensive Income (123)
____________
[30] The sum of $32,197,000 representing income generated through ‘Grants and other
contributions’ came about through:
$000
(a) Recurrent grants – Queensland government 31,533
(b) Contributions from Commonwealth government 271
(c) Contributions from industry 143
(d) Other 250
[31] Mr Bracegirdle explained that the sum of $31,533,000 is an amount received as grant
funding from Queensland Treasury on an annual basis to fund the salaries, rent and other
operating costs of TIQ. It is Mr Bracegirdle’s evidence that TIQ is “virtually reliant on
funding from Queensland Treasury.”8 Around 97% of TIQ’s funding is granted by the
Queensland Government, and without this funding, TIQ would close down.
[32] A sum of $271,000 was received from the Commonwealth Government through its
agency, Austrade. TIQ and Austrade partner together on a program called Trade Start. Some
funding is received from Austrade to TIQ to pay for regional staff. The contribution is
approximately $40,000 per employee engaged under that program.
[33] The amount of $143,000 was explained by Mr Bracegirdle as payment by sponsors
when TIQ holds business events and networking opportunities for exporters and investors.
An example was provided of KPMG sponsoring an event at a time when the G20, a global
economic summit was held in Brisbane. The event sponsorship helps to defray the cost of
holding events. Mr Bracegirdle’s evidence does not detail whether there was any surplus to
the event, and if so, if it was retained by TIQ.
[2016] FWC 4174
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[34] The amount of $250,000 to make up the total sum of income, and described as ‘Other’
was explained by Mr Bracegirdle as a contribution made by the Commonwealth Department
of Agriculture to help promote the opportunities for Queensland food exporters as a result of
the free trade agreements announced through China, Korea and Japan.
[35] In addition to the grants and other contributions received, an amount of $133,000 was
earned in interest on bank accounts where cash is held.
[36] An amount of $633,000 is recorded as sundry revenue. Mr Bracegirdle explained that
TIQ administers a scheme on behalf of the Commonwealth, and primarily for the Department
of Immigration and Border Protection. When foreign individuals seek to apply for business
visas and skilled migrant visas to work and reside in Queensland, Australia, TIQ administers
the Commonwealth scheme. Applicants are charged between $200 and $750 for each of those
applications, a charge set by the Commonwealth.
[37] TIQ employs the employees to administer the Commonwealth scheme. Mr
Bracegirdle’s evidence is that this is at an annual cost of around $800,000, and the report
demonstrates an income of $633,000. Mr Bracegirdle explained that the $633,000 also
includes TIQ’s coordination of ministerial missions overseas, and business delegates are
charged a very small participation fee when attending these overseas visits. Mr Bracegirdle
explained that it is cost-recovery only.
[38] An amount of $583,000 was received as payment for rent. Mr Bracegirdle’s evidence
is that in many countries where TIQ has an office, there may be other government
departments who utilise shared offices. An example was provided; TIQ has a ‘sister’
department in Tourism and Events Queensland. Where TIQ is the landlord, related
government bodies may sub-tenant the facilities and pay to TIQ for their portion of the
premises utilised by them. The costs are shared on a pro rata basis, dependant upon the
number of employees within the various tenants sharing the property.
[39] TIQ seeks to balance its budget and does not return unspent monies or dividends to the
Treasury. The TIQA does not require TIQ to operate on a commercial basis, nor is there any
requirement to pay an equivalent in taxation that would otherwise be payable to the
Commonwealth government.
Evidence of K.L.
[40] The witness material filed by K.L. was not extensive. A large volume of written
submissions was filed.
Submissions of TIQ
[41] TIQ submits that when considering the decision in Queensland Rail, and determining
if TIQ is a trading corporation, there are marked differences between the organisations’
activities and obligations, the result a conclusion that TIQ is not a trading corporation. The
Queensland Rail Transit Authority Act 2013 (Qld) established to create the Queensland Rail
Transit Authority (QRTA) provides that the QRTA is to carry out its functions as a
commercial enterprise.9 TIQ submits that there is no equivalent provision in the TIQA to
establish TIQ.
[2016] FWC 4174
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[42] There is provision for the QRTA to pay dividends to the state of Queensland, and in
May of each year, it is obliged to give the responsible Ministers an estimate of its profit for
the financial year. TIQ is under no such obligation.
[43] QRTA is required to pay an equivalent in taxation that it would have paid, with no
corresponding obligation on TIQ.
[44] TIQ, in contrasting its position against a number of cases cited by the parties
submitted the following:
(a) TIQ is not involved in a commercial enterprise that is a business activity carried on
with a view to earning revenue;
(b) TIQ’s revenue (other than from state government grants), generated through rent
and other items represents no more than 3%. Rental and other income is largely a
cost recovery, and not a commercial generator of income;
(c) Any income generated is peripheral and not substantial;
(d) TIQ does not have any members’ interests to advance; it does not have any
members. Its operation is on behalf of the State;
(e) TIQ is not subject to any State taxation.
[45] Mr Bracegirdle’s evidence is that TIQ could charge clients for fees if it wanted to, but
it chooses not to. A question was put by me to TIQ as to the opportunity for TIQ to charge
clients fees for services provided by TIQ. I asked TIQ if it charged $10 million in fees for
service, and its income was $40 million, might it be reasonable to conclude that it was a
trading corporation? It was not conceded by TIQ that this might be determinative. TIQ
submitted that the fact that TIQ was not presently charging its services to its clients was the
consideration that the Commission was required to turn its mind to.
Submissions of K.L.
[46] K.L. contends that despite TIQ being declared not to be a national system employer
pursuant to s.145D of the Industrial Relations Regulation 2011, the only test to determine is
whether TIQ is a trading corporation under paragraph 50(xx) of the Constitution.
[47] It was submitted that ‘trading denotes the activity of providing goods or services for
payment or reward’.10
[48] It is necessary to consider the nature of a corporation with reference to its activities,
rather than the purpose for which it was formed. 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. A corporation will be a trading corporation if
the trading engaged in is a ‘sufficiently significant proportion of its overall activities’.11
[49] K.L. referred to the Federal Court decision in E v Australian Red Cross Society (1991)
27 FCR 310. The Federal Court found that both the Australian Red Cross Society (the
Society) and the Royal Prince Alfred Hospital in Sydney were trading corporations. It is the
contention of K.L. that while both organisations received substantial sums in funding, they
had trading activities that represented a small proportion of their income, and yet were found
to be trading corporations. In the case of the Society, K.L. suggested that the income from
trading activities represented around 2% of the income generated.
[2016] FWC 4174
10
[50] On examination of the case referred to by K.L., the Society received approximately
$45 million in government grants, and generated approximately $2 million in fundraising
activities.12 The following describes the activities undertaken by the Society:
108. The evidence discloses that the first respondent 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 and through merchandising programs. The Society does make
some charges: for training courses, for medical equipment, in its homes for the aged
and for some community services such as home-help and meals-on-wheels. The
Society also receives income from rented properties and investments. In the 1983-
1984 financial year it received a total income of $11,633,890; not including
government grants. The income was made up of donations of $5,325,992, legacies of
$1,497,161, investments $1,104,453 and other receipts $3,706,224. In the following
year total receipts were $13,400,776; again not including government grants. The
break up was much the same.
109. The Society's annual report does not reveal the components of the item "other
receipts". To learn this, it is necessary to go to the annual reports of the various
Divisions, which are in evidence. They do not each itemise their income in the same
way. So it is not possible to be precise. But it seems to be clear that, in the year ending
30 June 1985, the various Divisions raised more than $2,000,000 from trading
activities, at kiosks, shops, street stalls or by direct sale of merchandise to the public.
[51] It is incorrect to assert that trading activities of the Society represented only 2% of its
income in the relevant financial year. The decision details that its activities, including income
from rented properties and investments, donations, legacies and other activities generated
$11,633,890 against government funding of approximately $45 million. The activities of the
Society represent approximately 20% of its income. If ‘trading activities’ is limited to the
selling of goods at shops and stalls and the like, and represents $2 million, it still accounts for
approximately 3.5% of the income received. It is not surprising that the Society was found to
be a trading corporation when consideration was given to its many and varied activities, far-
reaching into the community, and the sums generated from them.
[52] K.L. referred to the decision in United Firefighters’ Union of Australia v Metropolitan
Fire & Emergency Services Board (1998) 83 FCR 346 to support his assertion that while the
principal activity of an organisation might be for services to the community without charge to
the public, and a high proportion of funding, if there is substantial income generated through
other sources, it could constitute a trading corporation.
[53] In the above case, the Metropolitan Fire & Emergency Services Board (the Board) was
established in Victoria pursuant to an act of the Victorian Parliament in 1958.13 The functions
of the Board are:
(a) To provide for fire suppression and fire prevention services in the metropolitan fire
district; and
(b) To provide for emergency prevention and response services in the metropolitan
fire district; and
[2016] FWC 4174
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(c) To carry out any other functions conferred on the Board by or under this Act or
any other Act.
[54] The Board conceded in the above case that it carried out commercial servicing and
portable and fixed fire equipment for commerce, industry and the domestic market. Through
a division of the Board, commercial contracts were entered into with business partners, and
contractors engaged to sell, on behalf of the Board, parts and equipment. The Board could,
through the relevant division, arrange for the installation of sprinkler systems and fire alarm
panels to be serviced by independent contractors. Sales and marketing of these commercial
services was undertaken. The revenue earned by the Board in the relevant year was
approximately $8 million, representing 5.11% of the Board’s total revenue.14
[55] It was held in the above decision that the activities undertaken by the division of the
Board in “commercial servicing of portable and fixed fire equipment for commerce, industry
and the domestic market……and in which it generates substantial income for the Board, are
activities sufficient to constitute the Board as a trading corporation….”. Marshall J
determined that it was not the fact that the Board was subject to Ministerial control, nor that
most of its funds were generated through insurance company grants, councils and the state
government that would prevent it from being found to be a trading corporation. It was strictly
the trading activities of the division that formed a significant proportion of the Board’s overall
activities to warrant it being a trading corporation.15
[56] The activities of the division of the Board are commercially focussed; marketing is
undertaken, independent contractors are engaged and the Board would be competing in a
commercial environment. The income of approximately $8 million is not insubstantial, and
having regard to the kind of activities being performed by the Board in the commercial arena,
it is not surprising that these activities resulted in the Board being found to be a trading
corporation.
[57] On the calculations provided by K.L., the income derived by TIQ in the relevant
period is $1,742,000. This amount is broken up as follows:
Rental income: $583,000
Industry contribution: $143,000
Other contribution: $250,000
Interest: $133,000
Sundries: $633,000
[58] K.L. asserts that this income represents 5.19% of the total income within the relevant
period.
[59] With regard to TIQ’s present position that it does not charge its clients for the services
that it provides, K.L. submitted that I should look to the Act as a progressive piece of
legislation. During the hearing, K.L. submitted:
“…..the Fair Work Act, it is a progressive Act, it acts to prevent, it acts to stop
bullying. It is progressive; it acts to stop – so it’s for the future. So I think that is a
very pertinent point. TIQ has a mandate from the minister, it has structure, it has
expertise with people like myself and probably a hundred or so colleagues in
Queensland and internally, it has the capacity to charge a fee just like that. That is no
[2016] FWC 4174
12
difficulty at all….and therefore it is appropriate to look at the future possibility as
well….”
Consideration
[60] The international exposure of businesses in Queensland is an important responsibility
of TIQ. Without funding from the State Government, the activities could not be undertaken.
This matter is not, however, a direct relevant consideration in determining whether TIQ is a
trading corporation or not.
[61] The income from activities undertaken by TIQ in the 2014/2015 financial year is
$1,742,000. Approximately one third of that income is rent reimbursement from other
agencies, where TIQ is the landlord of the rented premises. I do not consider that
arrangement to constitute trading activities. It is understandable that owners of premises
would wish to enter into a lease with one foreign entity, TIQ, and not with various
organisations some of which may not have corporate entities.
[62] It is expected that organisations, whether trading corporations or not, will hold cash
balances in bank accounts. I do not consider the sum of $133,000 in the relevant year to assist
K.L.’s argument that TIQ is a trading corporation.
[63] On TIQ’s evidence, the amount of $633,000 representing Sundries is largely payment
from individuals through a Commonwealth visa application procedure, administered by TIQ.
It is TIQ’s evidence that it administers this scheme for the benefit of the Commonwealth, and
does so at a loss when the wages of employees required to administer the scheme is taken into
consideration. Included in the amount of $633,000 are nominal payments on a cost-recovery
basis made to TIQ when individuals are included in a ministerial visit overseas.
[64] I do not consider that these activities constitute trading activities. If these activities
can be regarded as trading activities, I do not consider their contribution to TIQ’s revenue to
be of any substantial consideration. They are peripheral activities16. The activities are largely
undertaken for convenience to the public; in particular, if the visa activities were no longer
undertaken by TIQ, it would not be necessary to incur the cost of approximately $800,000 per
annum to undertake the activity.
[65] I do not consider the activities represented in the accounts as ‘Industry Contribution’
($143,000) and ‘Other’ ($250,000) as trading activities. The Industry Contribution income is
largely event-cost minimisation through sponsorship. A sponsor agreeing to subsidise the
cost of an industry event does not, in my view, constitute a trading activity to equate to TIQ
being considered a trading corporation.
[66] The contribution of $250,000 was a grant of a Commonwealth department. It does not
constitute a trading activity.
[67] The activities undertaken by TIQ pursuant to its statutory responsibilities are vastly
different to the statutory responsibilities of Queensland Rail. TIQ is not required by statute to
operate on a commercial basis, and is not required to remit dividends to Queensland Treasury,
nor pay an equivalent amount of taxation. I am satisfied TIQ has adequately discharged its
differentiation from the circumstances found by the High Court to determine that Queensland
Rail is a trading corporation.
[2016] FWC 4174
13
[68] In the two cases cited by K.L., the activities of the Society, and those of the Board are
easily distinguished. In the case of the Society, a significant enough portion of its revenue was
generated through public appeals, the sale of merchandise, sale of equipment, training and
other activities. In the case of the Board, commercial arrangements were entered into to sell
and service fire sprinkler systems and alarms, generating $8 million in sales. The activities of
TIQ do not in any way reflect the activities undertaken by the Society or the Board.
[69] I do not agree with the submissions of K.L. at paragraph [59]. It is argued that
because the anti-bullying jurisdiction is in place to prevent further or future bullying, I should
find that because TIQ has the capacity to charge clients on a fee-for-service basis, it could
constitute a trading corporation. While I have regard for the capacity of TIQ to charge on a
fee-for-service basis, it presently does not do so, and could not be said to be a trading
corporation on the basis of speculative activities.
Conclusions
[70] TIQ is not a trading corporation and is therefore not a constitutionally-covered
business within the meaning of the Act. As a result of this finding, even if bullying behaviour
occurred at the place of work where K.L. is employed, it could not lead to a finding that K.L.
had been bullied at work within the meaning of the Act.
[71] There is accordingly, no jurisdiction to determine this particular application.
[72] The application is dismissed and I so order.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price Code C, PR582062
1 Agency submissions, 17 May 2016 at [8].
2 Queensland is not a Territory as defined in s.2B of the Acts Interpretation Act 1902, which refers to s.122 of the Australian
Constitution.
3 Australian Constitution s.52(i).
4 [2008] WASCA 254; (2008) 252 ALR 136 at par [68].
5 [2010] FCAFC 11; (2010) 182 FCR 483 at par [48].
6 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Queensland Rail [2015] HCA 11 at [39] – [43].
7 PN106.
8 Statement of Mr Paul Bracegirdle at [6].
9 Queensland Rail Transit Authority Act 2013 (Qld) s.10(1).
THE ALORS FA THE COMMISSION THE SEAL
http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/11.html#para48
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%282010%29%20182%20FCR%20483?stem=0&synonyms=0&query=%27789FC%27%20and%20%27constitutional%20corporation%27
http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/11.html
http://www.austlii.edu.au/au/cases/wa/WASCA/2008/254.html#para68
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%282008%29%20252%20ALR%20136?stem=0&synonyms=0&query=%27789FC%27%20and%20%27constitutional%20corporation%27
http://www.austlii.edu.au/au/cases/wa/WASCA/2008/254.html
[2016] FWC 4174
14
10 Ku-Ring-Gai Co-operative Building Society (No.12) Ltd (1978) 36 FLR 134,139.
11 The Queen v Federal Court of Australia; Ex parte Western Australian National Football League (1979) 143 CLR 190,
208.
12 E v Australian Red Cross Society (1991) 27 FCR 310 at [123].
13 Metropolitan Fire Brigades Act 1958 (Vic).
14 Ibid at p351, [A].
15 Ibid at p355, [A].
16 As per [20].
