The applicant contends that, as the Department fixed the contract price under the Service Agreements, the applicant did not submit a competitive tender and is merely funded to provide services to the community, rather than to the Department itself.
However, the Service Agreements and the requests to submit an offer at [28]-[32] above, do not support the applicant's contentions. On the contrary, these documents explicitly refer to the Department purchasingservices from the applicant, the applicant submitting an offer to be the successful provider, and to the applicant negotiating with the Department to provide the services.
Even without price competition, the Service Agreements and the requests to submit an offer at [28]-[32] above, indicate that the applicant was free to offer or withhold services, and the Department was free to accept or reject the applicant's offer, supporting a commercial relationship involving trade in services: ALS [68(3)] and [68(8)].
The Service Agreements and the requests to submit an offer at [28]-[32] above, indicate that the relationship between the Department and the applicant is akin to that in Bankstown [54], where the applicant 'provided services to the State and was remunerated for doing so', characterising the applicant's activities as 'selling those services to the State and, correspondingly, the State purchasing them'.
While the applicant relies upon the funding arrangements being extended on numerous occasions without the Department going to market, this may underscore reliability in service delivery; it does not alter the commercial exchange that is inherent in the Service Agreements.
The Service Agreements and the requests to submit an offer document at [28]-[32] above, relate to:
(a) Pat Thomas Refuge.
(b) Peel Advocacy and Support Services.
(c) Domestic Violence Outreach - Peel Region.
(d) Warlang Bidi Therapeutic Refuge.
The Grant Agreement - Family and Domestic Violence Primary Prevention Grants Program 2024/2026 - Safe Futures, suggests that in the period up to 30 June 2025, the applicant received $193,292.30 from the Department.
The letter from QBE and the community Partnership Agreement with Alcoa, suggests that the applicant received funds totalling $60,000 from QBE and Alcoa in the financial year ending 30 June 2025.
The letter from the Lucy Saw Centre Association Inc, refers to the applicant receiving the disbursement of funds for the Mobile Outreach Initiative for the period 1 July 2025 to 30 June 2026, payable on 3 or 4 July 2025. Given these dates, these funds would not appear in the Statement of cash flows (at [11(i)] above).
The Statement of cash flows (at [11(i)] above) notes that, in the 2025 financial year, the applicant received Grant income of $7,493,665, representing 96.7% of the applicant's total cash inflows from operating activities of $7,749,148.
Deducting the combined amounts at [39]-[40] above ($253,292.30), from the total Grant income ($7,493,665), results in the income the applicant received from the Department for the provision of the services specified at [38] above, totalling $7,240,372.70, representing 93.4% of the applicant's total cash inflows from operating activities of $7,749,148.
As outlined at [26] above, the revenue from the rental income and interest income, representing 3.3% of the applicant's total cash inflows from operating activities in the 2025 financial year, is not insignificant; it is 'a substantial and not merely a peripheral activity': ALS [68(2)].
As outlined at [27]-[43] above, the remuneration the applicant received from the Department constitutes trade in services, representing 93.4% of the applicant's total cash inflows from operating activities in the 2025 financial year. As a proportion of the applicant's operating activities, this is clearly a 'substantial and not merely a peripheral activity': ALS [68(2)].
For the preceding reasons, the applicant's trading activities, encompassing rental and interest income, and remuneration under service agreements for specified services, form a sufficiently significant proportion of the applicant's overall activities, to merit the applicant's characterisation as a trading corporation, notwithstanding its benevolent purpose.
[2]
For the preceding reasons, I find the applicant to be a trading corporation.
Accordingly, the Commission lacks jurisdiction over the Application.
Consequently, application AG 25 of 2025 will be dismissed.
Parties
Applicant/Plaintiff:
Aboriginal Legal Service of Western Australia (Inc)
Respondent/Defendant:
Lawrence
Legislation Cited (4)
Relations Act 1979
Work Act 2009
Incorporations Act 2015
Incorporation Act 2015
Cases Cited (13)
Pat Thomas House Inc. -v- Western Australian Municipal, Administrative, Clerical and Services Union of Employees [2025] WAIRC 859; (15 October 2025)
Aboriginal Legal Service of Western Australia (Inc)v Lawrence(No 2)[2008] WASCA 254
Aboriginal Legal Service of Western Australia (Inc) v Lawrence[2007] WAIRC 00435
Bankstown Handicapped Children's Centre Association Inc v Hillman[2010] FCAFC 11
United Firefighters' Union of Australia v Country Fire Authority[2015] FCAFC 1
(j) The applicant's activities could most accurately be described as the gratuitous provision of a public welfare service, substantially at government expense: E v Australian Red Cross Society[1991] FCA 20 [123].
(k) Furthermore, the purpose of collecting rent from clients (which, except in the case of transitional housing, is an optional payment), is to assist clients in transitioning back into life after living in the refuge, as opposed to the pursuit of a commercial activity. This supports a finding that the rental revenue is merely a peripheral activity.
(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) 150 CLR 169, 184-185, 203; Bevanere Pty Ltd v Lubidineuse[1985] FCA 134; (1985) 7 FCR 325, 330; Quickenden [101].