s.789FC - Application for an order to stop bullying

Application for an order to stop bullying - whether application within the scope of the stop bullying jurisdiction - whether workplace is constitutionally covered - no jurisdiction - application dismissed.

• [1] Ms Adriana Turk (Applicant) has made an application under s.789FC of the Act for an order to stop bullying. The Applicant is a volunteer wildlife carer with the Wildlife Information Rescue and Education Service Ltd (WIRES).

• [2] WIRES is a not-for-profit organisation which has the following core objectives:

1. Rescuing and rehabilitating Australian wildlife;
2. The provision of information and education on wildlife conservation;
3. Fostering, promoting and advocating awareness in the community and government of the threats to, and the need to protect, native wildlife and its habitat; and
4. Facilitating, supporting and participating in research in respect of the above.

• [3] WIRES has objected to the application on the basis that it is not a constitutionally-covered business pursuant to s.789FD(3) of the Act.

• [4] The Commission's anti-bullying jurisdiction is enlivened only if it is satisfied that a worker has been bullied at work within the meaning of the Act. Section 789FD is in the following terms:

(a) while the worker is at work in a constitutionally-covered business:

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:

(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."

• [5] Given WIRES' objection, the question for determination in this matter is whether WIRES is a constitutional corporation. If the answer to that question is no, the Commission lacks jurisdiction and the application must be dismissed.

• [6] The term "constitutional corporation" is defined in s.12 of the Act as follows:

"constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies."

• [7] The Australian Constitution defines "constitutional corporations" as "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth."[1]

• [8] There is no suggestion that WIRES is a foreign corporation.

• [9] In Cowie,[2] Commissioner Hampton (as he then was) comprehensively canvassed the authorities concerning the determination of whether a corporation is a trading corporation:

"[31] "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.) (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:

'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].

(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]." (footnotes and full references omitted)

[32] This summary was adopted by the Full Court of the Federal Court in Bankstown Handicapped Children's Centre v Hillman (Bankstown).

[33] In an earlier case of E v Australian Red Cross Society, Wilcox J considered whether the Australian Red Cross Society and the Royal Prince Alfred Hospital were trading corporations. The Society supplied blood and blood products, generally free of charge to the community, but received substantial government funding. The Court, in considering the more than $44m received in respect of its blood transfusion services, said:

'These were, of course, substantial sums. They were earned only because the respondents are prepared to carry on blood transfusion services at a scale, in terms of labour and resources, greater than that of many organisations which are undoubtedly 'trading corporations'. But I do not think that it is appropriate to describe the gratuitous provision of a public welfare service, substantially at government expense, as the conduct of a 'trade'. It is pertinent to recall the words of Stephen J in St George County Council: 'It is the acts of buying and selling that are at the very heart of trade', and also to remember the distinction he made in respect of the distribution of electricity free of charge. In relation to the supply of blood, it seems to me that the first and second respondents do not engage in trading activities. They engage in a major public welfare activity pursuant to agreements with the Commonwealth and the various State governments under which they will be reimbursed most of their costs.'

[34] I note that when considering the position of the Royal Prince Alfred Hospital, Wilcox J found that the scale of the hospital's trading activities were "substantial enough" to require that the hospital should be regarded as a trading corporation. The details of this aspect are explained in more detail in a decision outlined below.

[35] In Bankstown, the Full Court was dealing with an incorporated association that received most of its funding from government. The Court posed the question in the following manner:

'51 Many activities and services which have historically been provided mainly or exclusively by government are now carried on by companies which undertake those activities or provide those services with the objective of making a profit. Examples are legion and included prison services, electricity generation and distribution, potable water collection or production and distribution and the construction and maintenance of roadways. There can be little doubt that, at least in the ordinary course, companies which undertake those activities or provide those services can be characterised as trading corporations. Does the fact that a corporation likewise provides such services but on effectively a cost recovery basis only, render it inappropriate to characterise that corporation as a trading corporation?'

[36] The Full Court focused in particular on the funding and services provided in relation to the 'Out-of-Home Care' (OOHC) programs under which the Centre was paid for services provided to the relevant government agency (DOCS) on a fee for service basis. It concluded:

'54 If those substantial activities can be characterised as trading, then the Association can likewise be characterised as a trading corporation. So much is apparent from the authorities including, in this Court, the judgment of the Full Court in Quickenden (at [51]). The Association undoubtedly provided services to the State and was remunerated for doing so. It is, in our opinion, a proper characterisation of the Association's activities to describe them as selling those services to the State and, correspondingly, the State purchasing them. Indeed that was the language used in the header agreement which governed the contractual arrangements between the Association and DOCS. The provision of a given service under the header agreement resulted in an invoice from the Association to DOCS which it then paid. The prices at which the services were provided were negotiated between the parties having regard to the price at which others provide similar services. The Association employed personnel and acquired rental property to equip it for the task of providing those services. At least in its then manifestation (entailing its size, activities, property and personnel), its continued existence depended on its success in placing itself in a position in which it would continue to be remunerated by continuing to provide those services.

55 All these matters appear to us to point to a relationship between the Association and DOCS as having been a commercial one involving trade in services. It is, of course, true that it is possible to characterise, as the Industrial Court did, the Association's activities as the provision of public welfare services. However the fact that the acquisition of these services by DOCS was for this purpose does not appear to us to detract from the essentially commercial nature of the relationship. It is properly so described. There may be many incorporated charitable bodies in Australia which are nevertheless trading corporations for the purposes of paragraph 51(xx) of the Constitution. As we have noted above, the terms of the header agreements were negotiated, as were the terms of the renewal header agreement. Ultimately by that process, further negotiation as to price was not then undertaken. Thereafter, DOCS did not have to use the services of the Association at all, and the Association for its part did not have to accept any offer or request by DOCS to provide such services. On the evidence, DOCS selected those entities which it wished to provide services, once the header agreements were negotiated, on the basis of the quality of the service to be provided, but the Association (or others) did not have to agree to provide them. It is distracting to note that the services which the Association and others contracted with DOCS to provide were in the "welfare sector" of the economy, to use an expression used by the Solicitor-General.'

[37] In terms of the assessment of trading activities as substantial and not merely peripheral, the approaches do vary to a degree.

[38] In Bankstown, the Full Court observed that 'there is no bright line that determines what proportion of trading activities is "substantial"'. In the more recent decision of the Federal Court in United Firefighters Union of Australia v Country Fire Authority, (UFU v CFA) the Full Court adopted the approach to the characterisation of trading activities as summarised in Lawrence and considered the revenue producing activities in order to assess the cumulative impact of those activities upon that assessment. In terms of the cumulative assessment, Murphy J at first instance in that matter observed:

'92 The term "substantial" is imprecise but it at least encompasses trading amounts that are "not so small as to be trivial": Quickenden at [51]. In that case the majority treated substantial and nontrivial as synonymous. In the present case the CFA contends that their trading activities are peripheral, insignificant or otherwise incidental. These terms are drawn from the various cases: see for "peripheral" Adamson at 208 per Barwick CJ; State Superannuation Board at 304 per Mason, Murphy and Deane JJ; for "incidental" Adamson at 234 per Mason J; for "significant" see Adamson at 233 per Mason J; E v Australian Red Cross Society and Ors [1991] FCA 20; (1991) 27 FCR 310 ("E v Red Cross") at 345 per Wilcox J; Quickenden at [47] per Black CJ and French J.

93 The ordinary meaning of these words is straightforward. The Shorter Oxford Dictionary defines them to include the following:

(a) "peripheral" means marginal, superficial, of minor importance, not essential or relevant to but subordinate to;

(b) "insignificant" means lacking significance, meaningless, devoid of weight or force, ineffective, ineffectual, of no importance, trivial, trifling, or contemptible; and

(c) "incidental" means occurring as something casual or of secondary importance; not directly relevant to; following up on as a subordinate circumstance."

[39] Having found that six of the County Fire Authority's (CFA's) non-fire fighting activities were trading activities, Murphy J found:

'96 The scope of these activities is broad. While they are secondary to the CFA's primary purpose I would not describe any of them as insignificant, incidental, trivial or unimportant. For example, the road accident rescue service is a specialised emergency service that the CFA has agreed to provide in country areas, which has required special training of CFA employees beyond the usual fire training, and which the CFA recognises as an important part of the range of services it provides. The CFA has no statutory obligation to provide this service and it does so at a cost to road users and the State through the Traffic Accident Commission. I would not describe the provision of this service as incidental to the CFA's activities nor as a fortuitous or casual occurrence of subordinate importance. Nor should its provision, viewed in the context of all of its services, be described as trifling, ineffective, superficial or marginal.

97 For essentially the same reasons the provision of fire equipment maintenance services, consultancy on matters related to fire safety, the provision of advice related to the storage of dangerous goods and the sale of goods related to fire safety should not be seen as insignificant, incidental, trivial or unimportant activities considered against the range of services the CFA provides. I infer from the evidence that these activities are seen as important by the CFA, although they are not its central or predominant focus.

98 Nor do I consider that the revenue from these trading activities is incidental in the sense of arising fortuitously or as a result of some other activity. The income is earned deliberately by the CFA from these six specific sources and on the basis that the CFA have special expertise or products of value which they provide in exchange. Taken together the income from these activities is substantial.

99 While the quantum of income from the CFA's trading activities relative to its non trading activities is small, I am disinclined to treat almost $13 million of revenue as minimal, trivial or insignificant. It should be seen for what it is, a significant volume of trading revenue albeit dwarfed by the money received from non-trading sources. The CFA put on no cogent evidence that $12.93 million was insignificant to its operations, and no evidence was given that it could be easily foregone by the organisation. Put another way, it is likely that the CFA would be impaired in its capacity to provide services in road accident rescue, fire equipment maintenance, fire safety consultancy or sale of fire safety related goods, which it regards as important in the range of services offered, if it was not able to charge fees for doing so.

100 Although the $12.93 million of trading income is plainly a substantial amount in absolute terms, it is only a small percentage relative to the CFA's total income. Even so, I do not consider it is trivial or minimal in relative terms.

101 In E v Red Cross the Australian Red Cross Society was one of the respondents. Wilcox J held that its supply of blood and blood products was the gratuitous provision of a public welfare service, substantially at government expense, and was not a trading activity. The Red Cross received a total of $44.9 million from the government in respect of its non-trading blood supply services, and about $2 million from trading activities. Another respondent, a major hospital, made approximately $18 million from trading activities and, in the words of Wilcox J, that sum was dwarfed by a State government subsidy of $112 million. His Honour concluded that the disparity between the money earned through trading and the money received by way of government subsidy was unimportant explaining at 345:

Trading activities yielding some $18 million per year can only be described as substantial. It seems to me that the scale of the hospital's trading activities in 1984-1985 was such that it should be regarded as then being a trading corporation.

See also United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [1998] FCA 551; (1998) 83 FCR 346 ("UFU v MFB") at 354 to 356 per Marshall J.

102 The CFA contends that both E v Red Cross and UFU v MFB were wrongly decided in that they incorrectly applied an absolute test. While I consider that the CFA's trading revenue is plainly significant if considered in absolute terms, I do not approach the issue that way. Considering its trading revenue relative to its non-trading activities, the question is not without difficulty and is one of fact and degree. In my opinion the CFA undertakes sufficient trading for it to be seen as "not insubstantial", not trivial, insignificant, marginal, minor or incidental, and I find that it is a trading corporation."

[40] By contrast, in the earlier approach adopted in Hughes, Toohey J observed that "A trading activity may represent a significant part of a club's income but be relatively insignificant in an overall consideration of the club's activities".

[41] Further, the provision of services, largely or wholly, free of charge, and whether they are provided for altruistic purposes not shared by commercial enterprises, are also relevant, but not determinative, considerations. Sporting bodies may be trading corporations, depending upon their activities and circumstances." [my emphasis, citations omitted]

• [10] As outlined above, whether an entity is a trading corporation is a question of characterisation by reference to the significance of the spread relatively amongst the different activities.

• [11] A financial corporation is essentially one that borrows or lends or otherwise deals in finance. Similarly, whether an entity is a financial corporation involves a consideration of the extent to which its financial activities are sufficient to warrant it being characterised as a financial corporation. This question ultimately requires a determination as to whether the financial activities constitute commercial dealings in finance.

• [12] WIRES made the following submissions as to its operations:

"• The income and property of WIRES must be applied solely towards the promotion of the Object. Similarly, any allocation of funds must be used in pursuance of the objects of WIRES.

• WIRES is endorsed by the Australian Taxation Office as a deductible gift recipient and has a public gift fund, titled the 'NSW Wildlife Information and Rescue Service Public Gift Fund' for the purposes of receiving tax deductible contributions of money or property (WPGF). The WPGF is unrelated to the performance of any services for the Government; it is simply used for tax-deductible purposes.

• WIRES is divided into 29 Member branches across New South Wales. As at 19 June 2025, WIRES has a total of 4,649 volunteers. It also employs approximately 94 employees across New South Wales, Tasmania and Queensland. The majority of those employees perform administrative tasks to support WIRES' overall animal rescue and protection initiatives.

• WIRES' comprehensive income for the period 1 July 2023 to 30 June 2024 comprised:

1. total gross income of $13,641,685.00;
2. expenses totalling $18,014,945.00; and
3. total comprehensive net income of -$4,373,260.00.

• The total revenue received by WIRES in the Financial Year 2024 was $22,041,599.00, which is comprised of the following types of income:

• The 'other income' referred to in the table above can be further broken down as follows:

Sales of branch stock such as rescue baskets to members to assist them in their volunteer roles and duties

Sales of stock, training manuals and branded merchandise to raise public awareness about WIRES

Fees accumulated from providing essential training courses to Members so that they can perform their volunteer duties

Non-tax-deductible contributions received from fundraising activities

Other sales from items sold at branch educational and fundraising events such as barbequed goods and cupcakes

Other income including funds received from National Parks for animal protection initiatives

• WIRES' expenses for FY24 totalled $17,806,285.00. which can be broken down as follows:

Accountability and administration (e.g. operating activities, audit fees, rent)

Emergency operations (e.g. operating equipment, technology, software)

Training and volunteer coordination (e.g. animal food, trainers, veterinary expenses)

• WIRES has a share portfolio that is managed by its broker, Shaw and Partners Financial Services. In FY24, WIRES received $197,886 in shares by way of bequest. It is a passive holding in that WIRES does not seek any advice in respect of these shares.

• The WPGF also has its own investment portfolio. Shares and other investments held by the WPGF are managed by WIRES' investment fund manager, Ethinvest. In FY24, the WPGF accumulated:

1. $2,001,645.00 in interest on the funds held in the WPGF; and

1. $873,703 in other income comprised of $267,945 for net unrealised gain on investments and $605,758 for dividend income.

• This portfolio was designed in accordance with WIRES' core values as outlined in its Investment Policy, being Conservation and Animal Welfare. WIRES outsources and defers all management of the Portfolio to Ethinvest; it is entirely guided and dependent on Ethinvest to manage the Portfolio. The Investment Committee liaise with Ethinvest who provide updates regarding the performance of the portfolio. Discussions regarding these matters at the WPGF Committee Meetings often take around 10 minutes or less." (references omitted)

• [13] WIRES submitted that this financial information shows that over 92% of its income in the 2024 financial year was derived from donations via its public gift fund and bequests, and that the overwhelming reliance on public donations and bequests is indicative of its operations not being one of trade. In terms of the grant income, WIRES submitted that none of the grants generate income. Rather, they subsidise its services. Nor are they the product of competitive tendering or purchasing processes. In relation to the 'other income', WIRES submitted that that was not crucial to carry out its objectives and is derived from peripheral activities that do not form a substantial part of its operations. Accordingly, it submitted it is not a trading corporation.

• [14] In relation to whether WIRES is a financial corporation, it submitted that the nature of its shares and investments show that WIRES is "consciously passive in respect of these activities, has limited deliberation or interaction related to its investments, and is entirely guided and dependent on external financial advisors, Ethinvest and Shaw and Partners Financial Services, to manage and advise in respect of its share and investment portfolios".

• [15] As a result, it submitted, its financial activities are not a sufficiently significant proportion of its overall activities to be a financial corporation, in circumstances where its core focus is on protecting wildlife and it outsources these financial matters to subject matter experts.

• [16] WIRES' submissions were drawn from the evidence given by Ms Leanne Taylor, its CEO, and by Mr Matthew Hicks, a financial advisor from Ethinvest. I accept their evidence as to the nature of WIRES' operations and activities.

• [17] The Applicant provided detailed and well researched submissions focussed on demonstrating that WIRES was a constitutional corporation due to its significant trading activities.

• [18] She highlighted the 'windfall' WIRES received as part of the 2020 Bushfire Appeal by reference to data found on the Australian Charities and Not for Profit Commission (ACNC) website, which showed its gross income that year was over $100 million, by comparison to around $10 million (on average) for the 2022 to 2024 financial years.

• [19] The Applicant traversed the various ways people could give to WIRES which includes purchasing gift cards, workplace giving, leaving a gift via a will, corporate sponsorships, donations of goods such as carriers for animal care, and fundraising.

• [20] She also highlighted that the RSPCA had been found to be a trading corporation because it earned substantial income from trading activities. These activities included the "commercial exploitation of intellectual property, including the promotion of the marketability of the name and logo. They were, by their very nature, trading or commercial activities". To this end, the Applicant submitted that WIRES was a trading entity because of the sale of its logo via the 'partnerships' program to enhance the sale of products.

• [21] The training courses run by WIRES, submitted the Applicant, was in direct competition with other wildlife organisations that use training funds to support their operations, and these commercial practices had contributed substantial income of around $198,000 for training fees.

• [22] Having given careful consideration of the evidence and the submissions filed, I am not satisfied that WIRES is a trading or financial corporation.

• [23] First, the purpose or objects of the organisation, set out in paragraph 2 above, can be summarised as providing care and support for injured wildlife. It is required by its Constitution to apply its income solely towards promoting its objects.

• [24] The financial data referenced by the Applicant shows that WIRES has incurred net losses in the vicinity of around $7 million per annum since 2021.

• [25] Over 92% of WIRES' revenue sources are donations or bequests.

• [26] I am satisfied that the remaining revenue sources are either not commercial in character or are peripheral activities that do not form a substantial part of WIRES' operations for the reasons submitted by the Respondent.

• [27] The outcome in the RSPCA case can be distinguished given the trading activities there were over half the RSPCA's annual revenue, which is clearly not the case here.

• [28] The sale of merchandise and corporate sponsorships is similarly not a substantial part of WIRES' operations, having generated around $200,000 out of an overall revenue of approximately $22 million in the 2024 financial year.

• [29] In terms of training, I am satisfied that WIRES does not make a profit on training activities and in fact runs at a loss. Further, it has obligations under mandatory codes of practice to train volunteers who care for injured wildlife.

• [30] I am not satisfied that any trading activities undertaken by WIRES are substantial and accordingly I am not satisfied that is a trading corporation.

• [31] I am also satisfied that WIRES is not a financial corporation. It is "consciously passive" in respect of its shares and investment portfolio, which is managed by an external company and is dependent on its financial advisers to manage its share and investment portfolio. Its financial activities do not constitute commercial dealings in finance, and I accept the evidence of the Respondent in this regard.

• [32] As a result, I am satisfied that the workplace is not conducted by a constitutional corporation, or any other form of constitutionally-covered business.

• [33] Given the coverage of the anti-bullying provisions of the Act and the nature of the organisation, this application falls outside the jurisdiction of the Commission. As a result, this application must be dismissed and I so order.

• [34] It is certainly an unfortunate outcome for the Applicant, because I would likely have found that she had been the subject of bullying. One would hope that WIRES will reconsider its position in relation to the Applicant and implement the recommendations made by the Commission during conciliation.

J Martin of Counsel for Wildlife Information Rescue and Education Service Ltd.

[1] Section 52(xx) of the Australian Constitution.

[2] [2016] FWC 7886.

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