1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Danielle Mazza
v
COUNCIL OF THE CITY OF RYDE
(C2023/7337)
DEPUTY PRESIDENT ROBERTS SYDNEY, 4 MARCH 2024
Application to deal with contraventions involving dismissal
[1] The Applicant in this matter, Ms. Danielle Mazza, has filed an application under s.365
of the Fair Work Act 2009 (Act) alleging that she was dismissed by her former employer, the
Council of the City of Ryde (Respondent) in breach of the general protections provisions in
Part 3-1 of the Act.
[2] The Respondent has raised jurisdictional objections to the application. They maintain
that the application is incapable of being brought against them because Part 3-1 did not apply
to the Applicant’s employment with them. In short, the Respondent says that the Council is
neither a national system employer nor a constitutionally-covered entity for the purpose of Part
3-1. Accordingly, they say that the scope of Part 3-1 does not extend to the Respondent and the
Applicant’s engagement. Further, the Respondent contends that on a proper construction of
sections 365(a), 386 and 380, the first-mentioned section is only engaged in circumstances
where there has been a dismissal of a national system employee by a national system employer,
and, as this was not the case here, the application is unable to proceed.
[3] The parties were directed to file written submissions and evidence dealing with the
objections that had been raised. The Respondent filed material in response to those directions.
The Applicant did not. In the circumstances I advised that the matter would be determined on
the papers.
Bonora Decision
[4] The Commission has very recently considered similar objections by the same
Respondent in a separate matter brought by another applicant under s.365 of the Act. In Bonora
v. Council of the City of Ryde1 (Bonora) Deputy President Easton considered whether the
Respondent was either a national system employer2 or a constitutional corporation3 (and
therefore a constitutionally-covered entity pursuant to s.338(2)(a)). The Deputy President
determined that the Respondent fell within neither of those descriptions. It followed that the
objections by the Respondent were upheld in that matter and the application was dismissed.
[2024] FWC 580
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 580
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[5] The essential issues that arise in this matter received detailed consideration in Bonora.
Having had the benefit of Deputy President Easton’s reasons in Bonora, I have reached the
same conclusion in relation to the objections raised by the Respondent. I refer to and rely on
those reasons.
[6] The core issue for determination is whether the Respondent is excluded from the
operation of Part 3-1 because it is neither a national system employer nor a constitutionally-
covered entity (as a constitutional corporation).
National System Employer
[7] Section 339 of the Act extends the operation of Part 3-1 to national system employers.
It provides, relevantly:
339 Additional effect of this Part
In addition to the effect provided by s.338, this Part also has the effect it would
have if any one or more of the following applied:
(a) a reference to an employer in any one or more provisions of this Part
were a reference to a national system employer.
[8] Section 14 of the Act defines “national system employer”. Subsection 14(2) specifically
provides that a particular employer is not a national system employer if they meet the criteria
set out in subsections (a), (b) and (c) of that section. For present purposes, the relevant criteria
are as follows:
(1) Subsection 14(2)(a)(ii) - that employer is a “body established for a local government
purpose by or under a law of a State or Territory” ;4 and
(2) Subsection 14(2)(b) - “that employer is specifically declared, by or under a law of
the State or Territory, not to be a national system employer for the purposes of this
Act”; and
(3) Subsection 14(2)(c), an endorsement by the Minister under paragraph 4(a)is in force
in relation to the employer.
[9] I am satisfied that the Respondent meets each of the abovementioned criterion. It is a
body established for a local government purpose by or under the Local Government Act 1993
(NSW).
[10] Section 9A(1) of the Industrial Relations Act 1996 (No 17) (NSW IR Act) provides that:
(1) An eligible employer5 is declared not to be a national system employer for the
purposes of the Fair Work Act 2009 of the Commonwealth if the Minister, by order
published on the NSW legislation website, declares the employer not to be a national
system employer.”
[2024] FWC 580
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[11] The Industrial Relations (National System Employers) Order 2009 (Order) is an order
published on the NSW legislation website as contemplated by section 9A(1) of the NSW IR
Act. This Order declares in Schedule 1, a list of “non-national system employers”, specifically
“Councils” in Part 2 of Schedule 1, which includes the “Ryde City Council”. Together these
provisions constitute a specific declaration under the law of the state for the purposes of
s.14(2)(b).
[12] A state declaration of this kind, in relation to an employer, may be endorsed by the
Minister under s.14(4)(a) of the Act. The Fair Work (State Declarations – employers not to be
national system employers) Endorsement 2009 (Cth) is such an endorsement. Schedule 1 Part
1 item 135 of that instrument identifies Ryde City Council as an employer that is not a national
system employer. That endorsement commenced on 1 January 2010.
[13] On the basis of the matters referred to above I conclude, as did Deputy President Easton
in Bonora,6 that the Respondent is not a national system employer.
Constitutionally-covered entity
[14] Section 338(1)(a) of the Act provides that Part 3-1 applies to action taken by a
constitutionally-covered entity. A constitutionally-covered entity is defined, relevantly, as
including a constitutional corporation.7 “Constitutional corporation” is in turn defined in s.12
as “a corporation to which paragraph 51(xx) of the Constitution applies.” Paragraph 51(xx) of
the Constitution provides that the Parliament shall, subject to this Constitution, have power to
make laws for the peace, order, and good government of the Commonwealth with respect to
foreign corporations, and trading or financial corporations formed within the limits of the
Commonwealth.
[15] The Respondent submitted that the Commission could deal with the anterior question of
whether it was a corporation at all before considering whether it was a constitutional
corporation. In this respect they relied on the provisions of the Local Government Act 1993
(NSW) (LGA). Section 220 of the LGA provides that a council is a body politic of the State
and is not a body corporate (including a corporation).8
[16] In Bonora the Commission traversed the history of s.220 and its likely effect,
particularly in light of the High Court’s decision in Communications, Electrical, Electronic.
Energy, Information, Postal, Plumbing and Allied Services Union of Australia v. Queensland
Rail9 (Queensland Rail). The Deputy President also made reference to various decisions of the
Commission and superior courts which might bear on the operation of s.220. This included the
decision in Carroll v. Clarence Valley Shire Council10 where His Honour Emmett J expressed
the view that a statement in a State Act was not decisive as to whether a particular entity was a
corporation as that term is defined in federal legislation.11
[17] Ultimately the Commission in Bonora took the view that the matter should be
determined by reference to the Respondent’s potential status as a trading corporation rather than
coming to a concluded view as to its status as a corporation per se. In my view, particularly
having regard to the lack of full submissions from an informed contradictor in this matter, I
think that is the appropriate course to adopt here.
[2024] FWC 580
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[18] The evidence in this matter was the Respondent’s 2021/2022 annual report. The same
report was relied upon in Bonora. I have considered that evidence, the submissions of the
Respondent and the analysis undertaken by Deputy President Easton in Bonora. I see no reason
to depart from the ultimate conclusion reached on this point in Bonora. Whether the trading
activities of an (entity) are sufficient to justify its categorisation as a ‘trading corporation’ is a
question of fact and degree.12 I am satisfied that to the extent the activities of the Respondent
may be considered to be trading activities they are not substantial or sufficiently significant13
such as to render the Respondent a trading corporation.
Sections 337 and 30R of the Act
[19] The Respondent also submitted that the matters raised by the application were not
covered by the provisions of s.337 and 30R of the Act.
[20] Section 337 provides that the operation of Part 3-1 applies only to the extent provided
by Division 2 of that Part. Despite s.337, s.30R of the Act extends the operation of the general
protections provisions to action taken in a referring State that is a referring state because of
Division 2B of Part 1-3. That includes the State of New South Wales. However, that extension
is subject to the limitation in s.30S of the Act, the effect of which is that a provision of the Act
can only have effect if it is supported by the state referral itself. In this instance, s.6(f) of the
Industrial Relations (Commonwealth Powers) Act 2009 (NSW) (CP Act) excludes from
referred matters, matters relating to local government sector employees. “Local government
sector employee” is defined under section 3 of the CP Act as an employee of, inter alia, a “local
council or county council under the Local Government Act 1993”. The Applicant, as an
employee of the Respondent, the Council of the City of Ryde is such an employee. Part 3-1
therefore has no operation to the Applicant by virtue of the operation of ss.337 and 30R.
Conclusion and Disposition
[21] The Respondent is not a national system employer. It is not a constitutionally-covered
entity because it is not a constitutional corporation since it is not a foreign, trading or financial
corporation. Neither is it a body of any other kind whose actions are captured by Part 3-1. Part
3-1 of the Act does not apply to the employment of the Applicant by the Respondent.
[22] The application is dismissed.
DEPUTY PRESIDENT
THE FAIR WORKS LUSTRAL AMISSION THE SE
[2024] FWC 580
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Printed by authority of the Commonwealth Government Printer
PR772031
1 [2024] FWC 384.
2 See s.14.
3 See s.12.
4 The Respondent may also be a body established for a public purpose under s 14(2)(a)(i) but it is unnecessary to consider the
issue further here.
5 Section 9A(2) of the NSW IR Act provides that “an eligible employer is an employer that, under section 14 of the Fair Work
Act 2009 of the Commonwealth, is eligible to be declared not to be a national system employer for the purposes of that
Act”.
6 At [8].
7 Section 338(2)(a).
8 Section 220(1) and (2).
9 (2015) 256 CLR 171.
10 [2012] FCA 1143.
11 At [8]. See also Queensland Rail at [23].
12 Roads and Maritime Services v. Leeman [2018] FWCFB 5772.
13 R. v. Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc384.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb5772.htm
