s 773 - Termination of employment

Applications to deal with contraventions involving dismissal - jurisdictional objection - whether the Respondent is a national system employer - whether the Respondent is a constitutionally-covered entity - jurisdictional objection sustained - application dismissed.

• [1] Mr Jacobus Van Aswegen was employed by Marra Worra Worra Aboriginal Corporation on or around Tuesday 1 April 2025 as a Management Accountant. On Thursday 24 April 2025, he was dismissed due to unsatisfactory performance during his probationary period. Mr Van Aswegen subsequently applied to the Fair Work Commission under s 773 of the Fair Work Act 2009 (Cth) alleging unlawful termination.

• [2] MWWAC objects to Mr Van Aswegen's application on two grounds:

• Firstly, as Mr Van Aswegen was a national system employee, he was entitled to lodge a general protections dismissal application under s 365 of the Act.

• Secondly, Mr Van Aswegen has not alleged any contravention of s 772(1).

• [3] The parties were given the opportunity to file written submissions and materials dealing with the two objections. The parties subsequently advised the Commission that they were content to have the matter dealt with on the papers and I agree it is appropriate to do so.

• [4] Having considered the material from both parties, I find Mr Van Aswegen's application is outside the jurisdiction of s 773 and must be dismissed.

• [5] My detailed reasons for my decision follow.

2. Issue one: was Mr Van Aswegen entitled to lodge a general protections court application?

• [6] Section 723 of the Act provides that a person must not make an unlawful termination application if the person is entitled to make a general protections court application in relation to the conduct.

• [7] The general protections provisions of the Act are set out in Part 2-1. Division 2 of Part 3-1 (ss 337 - 339) set out the circumstances where Part 3-1 applies. In summary, s 338 of the Act provides that Part 3-1 applies to action taken by a 'constitutionally covered entity' and s 339 of the Act extends the operation of Part 3-1 to 'national system employers'.

• [8] The definition of a 'national system employer' can be found in s 14 of the Act. Relevantly for this matter, s 14(1)(a) provides that a constitutional corporation is a national system employer. 'Constitutional corporation' is defined in s 12 of the Act to mean a corporation to which paragraph 51(xx) of the Constitution applies.

• [9] 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.

• [10] MWWAC contends that it is a trading corporation. The Western Australian Industrial Appeal Court outlined the principles for assessing whether a party is a 'trading corporation' in Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2][1] at [68] 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) 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 [in] 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], [l01]; 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].

• [11] ALS has been cited with approval in subsequent appellate court decisions: Bankstown Handicapped Children's Centre Association Inc v Hillman[2] and United Firefighters' Union of Australia v Country Fire Authority.[3]

• [12] ALS has also been affirmed by the Full Bench of the Commission in Thurling v Glossodia Community Information and Neighbourhood Centre Inc,[4] which provided a comprehensive overview of the law on whether a corporation is a 'trading corporation', starting with the summary provided by Steytler P in ALS and thereafter citing the Full Bench decision in Roads and Maritime Services v Leeman.[5]

• [13] Mr Van Aswegen did not make any substantive submissions on whether MWWAC is a trading corporation.

• [14] MWWAC filed a statement[6] from its Chief Operating Officer, Mr Andrew Webster, which explained that MWWAC is incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and is registered with the Australian Charities and Not-for-profits Commission and operates as a large-scale Indigenous corporation.

• [15] Mr Webster's statement also outlines MWWAC's trading activity as follows:

(a) Fitzroy Workers' Camp: MWWAC owns and operates a commercial accommodation business called Fitzroy Workers' Camp.

(b) Fitzroy Hardware Store, Jalangurru Mayi Café and Mechanical Workshop: MWWAC operates these three businesses, which generate revenue through retail, hospitality and mechanical services.

(c) Government and Non-Government Contracting: MWWAC holds multiple service delivery contracts for:

• Employment programs, including Community Development Program (CDP) and youth engagement services;
• Housing tenancy and maintenance services under contract with the WA Department of Communities;
• NDIS and Home and Community Care;
• Financial Counselling; and
• Training and transport programs.

• [16] MWWAC submitted its 2024 Financial Report, which shows that 34% of its revenue came from grants, with the remainder coming from operating income, rent income, sale of assets, programs and investments. This is also supported by MWWAC's 2024 General Report to the Office of the Registrar of Indigenous Corporations.

• [17] The 2024 Financial Report also provides that MWWAC's primary aim is, 'to provide support services to existing and emerging groups in the Fitzroy Valley and to assist them to develop strong and sustainable communities and organisations'. Further, that MWWAC's principal activities consisted of housing, employment, training, health and other community services.

• [18] Based on MWWAC's uncontested evidence, I am satisfied that it engages in trading activities. MWWAC operates commercial accommodation and businesses such as the hardware store, café and workshop. Further, based on the 2024 Financial Report and General Report, the majority of MWWAC's revenue is from non-grant sources such as operating and rent income. As such, I am satisfied that MWWAC's trading activities are substantial or significant and that MWWAC is a trading corporation for the purpose of s 51(xx) of the Constitution.

• [19] As MWWAC is a trading corporation, they are also a national system employer per s 14 of the Act. This means that Mr Van Aswegen was entitled to bring a general protections court application in respect of his dismissal. Further, it means that Mr Van Aswegen cannot make an application under s 723 of the Act.

3. Issue two: whether Mr Van Aswegen has alleged a contravention of s 772(1) of the Act

• [20] Given my findings above, it is unnecessary for me to make a finding on whether Mr Van Aswegen has alleged a contravention of s 772(1) as required by s 773(b). However, I do note that Mr Van Aswegen's application did not nominate any of the grounds in s 772(1) that an employee must not be terminated on.

• [21] Mr Van Aswegen appeared to submit that as he had filed an internal complaint with his manager, he had been terminated in breach of s 772(e). Mr Van Aswegen has misunderstood s 772(e) - it provides that an employee must not be terminated for, 'the filing of a complaint or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities' (emphasis added). To the extent that it is required, I observe that the filing of a complaint under s 772(e) is directed to the making of a complaint to an outside authority; it is not sufficient if the complaint is only made to the employer.[7]

• [22] The majority of Mr Van Aswegen's submissions dealt with his issues with his dismissal. Mr Van Aswegen submitted that I should exercise my 'discretion' in this matter and that his case should not be delayed by technicalities or procedures. The Commission does not have the discretion Mr Van Aswegen alludes to; an application under s 723 is either validly made, or it is not.

• [23] In this case, as MWWAC is a trading corporation and therefore a national system employer, Mr Van Aswegen cannot make an unlawful termination application. His application is dismissed.

[1] [2008] WASCA 254.

[2] [2010] FCAFC 11; (2010) 182 FCR 483 [48].

[3] [2015] FCAFC 1; (2015) 228 FCR 497 [70].

[4] [2019] FWCFB 3740 [24].

[5] [2018] FWCFB 5772 [13]-[19].

[6] Letter dated 18 June 2025, 'Matter C2025/3704 - Jacobus Van Aswegen v Marra Worra Worra Aboriginal Corporation'.

[7] Reeve v Ramsay Health Care Australia Pty Ltd [2012] FWA 3141; Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347; 57 AILR 100-377; [2005] FCAFC 99.

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