The jurisdiction of the Fair Work Commission

This decision of the Fair Work Commission is a very fine summary of the jurisdictional issues in matters determined by the Commssion.

“Application under s 365 of the Act; jurisdictional objection not a trading corporation; jurisdictional objection upheld; application dismissed.

1 Issue and outcome

[1]

On 3 March 2026, Kellene Elder (the Applicant) lodged a general protections application against the Pilbara Community Legal Service Incorporated (the Respondent) and Joanna Collins under s 365 of the Fair Work Act 2009 (Cth) (the Act) alleging that on 11 February 2026, she was dismissed in contravention of the general protections provisions of the Act.

[2]

The Respondent raised a jurisdictional objection to the application on the basis that it was neither a constitutionally-covered entity nor a national system employer and therefore the Commission did not have jurisdiction to hear the application because Part 3-1 of the Act does not apply to the actions of the Respondent. The premise of its argument was essentially that it was not a trading corporation and therefore it was not a constitutionally-covered entity.

[3]

The matter proceeded to hearing on 13 May 2026. The matter concluded part-heard. The Applicant, during the hearing, sought the production of certain documents, which I refer to at a later point in this decision but, in short, were the service agreements between the Respondent and its contracting parties, and the variations, extensions and tender documents arising from the same. I considered that those documents were of apparent relevance to the issue to be determined. The documents were voluminous and required explanation and, as such, the matter was listed for a further day of hearing on 1 July 2026. The Respondent was extended the opportunity to provide a further witness statement, the subject matter of which was those 1145 pages which had been produced.

[4]

The above procedural aspects of this case warrant attention. After all, the Applicant simply seeks recourse for a dispute about her dismissal from the Respondent. And, as has been the case for many applicants before her, finds herself embroiled in a dispute over whether the tribunal to which she has made an application has jurisdiction to deal with her dispute. In many cases the answer is painlessly reached – it perhaps having been obvious. For organisations

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DECISION

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located in Western Australia that are predominantly ‘funded’ by State or Commonwealth departments, it would appear that arriving at an answer as to whether they were, at the relevant time a trading corporation, is not always a simple exercise for the parties. For an applicant who has been dismissed and their former employer, the expenditure of time and resources arguing over whether the former employer was a trading corporation would appear to sit at odds with a tribunal, such as the Commission, which is charged with performing its function in a manner that is quick, informal and avoids unnecessary technicalities. But the question before me is not a mere ‘unnecessary technicality’, it is accepted that the Commission must determine whether it has jurisdiction. However, for the parties, that probably does little to assuage any consternation they may hold about the time taken to arrive at an outcome on this one point and the expenditure of their resources to date.

[5]

Having considered the detailed materials of the parties, including their submissions and evidence, I have found that the Respondent is neither a national system employer nor a constitutionally-covered entity. It follows that the Applicant’s application under s 365 of the Act cannot continue. An Order1 dismissing the Applicant’s application issues separately to this decision. My detailed reasons follow.

2 The legislation

[6]

The general protections provisions of the Act are set out in Part 3-1. Division 2 of Part 3-1 (ss 337 – 339) sets 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’:

338 Action to which this Part applies

(1) This Part applies to the following action:

(a) action taken by a constitutionally-covered entity;

(b) action that affects, is capable of affecting or is taken with intent to affect the

activities, functions, relationships or business of a constitutionally-covered

entity;

intent to coerce, a constitutionally-covered entity:

(i) to take, or not take, particular action in relation to another person; or

(ii) to threaten to take, or not take, particular action in relation to another

person;

(d) action taken in a Territory or a Commonwealth place;

(e) action taken by:

(i) a trade and commerce employer; or

(ii) a Territory employer;

that affects, is capable of affecting or is taken with intent to affect an

employee of the employer;

(f) action taken by an employee of:

(i) a trade and commerce employer; or

(ii) a Territory employer;

that affects, is capable of affecting or is taken with intent to affect the

1 PR812797.

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employee’s employer

(2) Each of the following is a constitutionally-covered entity:

(a) a constitutional corporation;

(b) the Commonwealth;

(d) a body corporate incorporated in a Territory;

(e) an organisation.

(3) A trade and commerce employer is a national system employer within the meaning

of paragraph 14(d).

(4) A Territory employer is a national system employer within the meaning of paragraph

14(f)

339 Additional effect of this Part

In addition to the effect provided by section 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 one or more provisions of this Part were a

reference to a national system employer;

(b) a reference to an employee in one or more provisions of this Part were a

reference to a national system employee;

were a reference to an organisation, or another association of employees or

employers, a purpose of which is the protection and promotion of the interests

of national system employees or national system employers in matters

concerning employment;

(d) a reference to an officer of an industrial association in one or more provisions

of this Part were a reference to an officer of an organisation;

(e) a reference to a person, another person or a third person in one or more

provisions of this Part were a reference to a constitutionally-covered entity;

(f) a reference to a workplace law in one or more provisions of this Part were a

reference to a workplace law of the Commonwealth;

(g) a reference to a workplace instrument in one or more provisions of this Part

were a reference to a workplace instrument made under, or recognised by, a law

of the Commonwealth;

(h) a reference to an industrial body in one or more provisions of this Part were

a reference to an industrial body performing functions or exercising powers

under a law of the Commonwealth.

[7]

Section 14 of the Act defines ‘national system employer’. It states that a ‘national system employer’ is, amongst others, a constitutional corporation, so far as it employs, or usually employs, an individual. Subsection 14(2) specifically provides that a particular

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employer is not a national system employer if they meet the criteria set out in subsections (a), (b) and (c) of that section.

[8]

Section 12 of the Act defines a ‘constitutional corporation’ as a corporation to which section 51(xx) of the Constitution applies, which relevantly refers to a trading corporation formed within the limits of the Commonwealth.

3 Constitutional corporation – legal principles

[9]

Section 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]

The Western Australian Industrial Appeal Court in Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2)2 (‘ALS’) outlined the principles for assessing whether a party is a ‘trading corporation’. Before traversing those principles, the factual background to ALS warrants consideration due to the parallels that can be drawn to application before me.

[11]

Mr Lawrence, the respondent on appeal, had worked for the Aboriginal Legal Service of Western Australia.3 His employment had terminated and he alleged that the termination was harsh, oppressive and unfair, in breach of the State legislation.4 He therefore lodged a claim in the Western Australian Industrial Relations Commission (WAIRC).5 The appellant on appeal, that is, the organisation, contended that the WAIRC lacked jurisdiction to hear the claim because it was a constitutional corporation for the purposes of the Workplace Relations Act 1996 (Cth) on the basis it was a trading corporation for the purposes of s 51(xx) of the Constitution.6

[12]

Unsurprisingly the principal activity of the organisation was the provision of legal services to Aboriginal clients.7 It had provided those services for some 30 years and by 2006, its Annual Report detailed that it had 18 offices across Western Australia and its staff had provided legal assistance in over 27,000 matters.8 It employed around 30 lawyers and some 26 court officers, who were permitted under State legislation to represent clients in court.9 In addition to the provision of legal services in criminal law, family law, criminal injuries compensation, debts, motor vehicle accidents and fatal accident claims, it had been involved in law reform initiatives and had obtained funding to enable it to monitor the implementation of the recommendations made by the Royal Commission into Aboriginal Deaths in Custody.10 It

2 (2008) 37 WAR 450 (‘ALS’).

3 Ibid 453 [2].

4 Ibid.

5 Ibid.

6 Ibid.

7 Ibid 455 [20].

8 Ibid 455–6 [20].

9 Ibid 456 [20].

10 Ibid.

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was classed as a public benevolent institution and enjoyed tax concessions, whilst being endorsed as a deductible gift recipient.11

[13]

Whilst initially funded by grants provided through the Aboriginal and Torres Strait Islander Commission, in 2005, the Commonwealth Government changed its funding arrangements and decided that funding for legal services provided to Indigenous people throughout Australia was to be allocated under a competitive tender process.12 The Commonwealth put out such a request and the organisation responded which led to its entry into the contract with the Commonwealth.13 Almost all of the organisation’s funding came from the Commonwealth, with other sources, which were very limited, including the Western Australian State Government and those few clients who had the means to contribute to their legal costs.14

[14]

Regarding the organisation’s constitution, its objects were limited to providing direct relief to all ‘Aboriginals from poverty, suffering, destitution, misfortune, distress and helplessness caused directly or indirectly by their involvement with the laws of the Commonwealth…’.15 Its general powers were provided for the purpose of carrying out its objects, with one of them being to ‘enter into any arrangements with any Government… that may seem conducive to the [appellant’s] Objects’, and, insofar as its income and property were concerned, the organisation was to apply it solely and exclusively towards the promotion of its objects.16

[15]

At first instance, it was found that the request for tender was not put out in order to obtain bids based upon competitive prices, but, that the Department had set the amount of funding available over the term of the proposed contract.17 On appeal, Steytler P stated that there was no real contest between the parties concerning the fact that the purpose of the tender process was to ensure, as best that could be done, that there would be greater accountability and efficiency in expenditure of the legal aid funding provided by the Commonwealth.18

[16]

Regarding the organisation’s contract with the Commonwealth, the recitals to the contract were said to include that the Department ‘wishes to engage organisations to provide the Services with the aim of improving the access of indigenous Australians to high-quality and culturally appropriate legal aid services, so that they can fully exercise their legal rights as Australian citizens’.19 At paragraphs [26]–[38] of the judgment, Steytler P details the contractual obligations and those of the ‘Policy Directions’.20

11 Ibid 456 [21].

12 Ibid 456 [23].

13 Ibid.

14 Ibid.

15 Ibid 455 [17].

16 Ibid 455 [18]–[19]

17 Ibid 456 [24].

18 Ibid.

19 Ibid 456–7 [26]

20 Ibid 456–9 [26]–[38].

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[17]

Having referred to multiple decisions of the High Court and other courts, at paragraph [68] of the judgment, Steytler P detailed the ‘more relevant (for present purposes) principles that might be drawn’ from the cases he had traversed. Those oft cited principles are listed as follows:21

(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) 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) 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].

[18]

In applying the abovementioned principles to the facts at hand, Steytler P set out that the organisation had been set up to perform what were best described as public welfare services.22 With its function to provide direct relief to Indigenous people acknowledged,

21 Ibid 469–70 [68].

22 Ibid 470 [70].

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Steytler P stated that it was for this purpose that the appellant was given power to provide legal assistance to indigenous persons and to receive and spend the grants from the Commonwealth.23 Steytler P expressed that the organisation existed for no other purpose and there was no suggestion that its activities had ever deviated from those necessary to achieve its primary purpose.24

[19]

Acknowledging that those factors, of themselves, were not determinative, Steytler P considered that other factors pointed against the organisation’s trading character.25 Those factors included that its constitution required all income and property be applied exclusively toward the promotion of its objects and that no members were to receive profit, bonus or dividend.26 There was no suggestion that the organisation profited from or sought to profit from its activities under the Commonwealth contract so as to fund any other activities that were permitted by its constitution.27 There was also no suggestion that it performed other activities of any significance, and the organisation was classed as a public benevolent institution and therefore attracted the relevant tax concessions.28 Further, its services were provided only to those it had been set up to help and it did not compete for those, or any other, clients.29

[20]

Steytler P formed the opinion that there was nothing in the funding arrangements that altered his view, noting that the tender was not one that was based on price, but that the whole process was designed to enhance efficiency in respect of services funded by government.30 Amongst other observations made, Steytler P observed that the majority of services were provided free of any charge (persons having established that they were unable to pay for their legal services), services were overseen and controlled by the government, and whilst fees were paid on invoice, this was merely an accounting device and fees were required to be provided in the ‘pre-ordained sums’, so long as the contracted services were provided.31

[21]

ALS has been cited with approval in subsequent appellate court decisions: Bankstown Handicapped Children’s Centre Association Inc v Hillman (‘Bankstown’)32 and United Firefighters’ Union of Australia v Country Fire Authority (‘UFU’),33 and by the Full Bench of the Commission in Thurling v Glossodia Community Information and Neighbourhood Centre Inc,34 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 (NSW) v Leeman (‘Leeman’).35

23 Ibid.

24 Ibid.

25 Ibid 470 [71].

26 Ibid.

27 Ibid.

28 Ibid.

29 Ibid.

30 Ibid 470 [72].

31 Ibid 470–71 [72].

32 (2010) 182 FCR 483, 509–10 [48] (‘Bankstown’).

33 (2015) 228 FCR 497, 513 [70] (‘UFU’).

34 [2019] FWCFB 3740, [24].

35 [2018] FWCFB 5772, [14]–[19] (‘Leeman’).

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[22]

In Leeman, the Full Bench took the opportunity to elucidate several of the propositions expounded by Steytler P.36 Starting with the first, second, and sixth propositions, the Full Bench relied upon an extract from the judgment of Murphy J in R v Federal Court of Australia; Ex parte WA National Football League (‘Adamson’)37 expressed in the following terms:

Even though trading is not the major part of its activities, the description, “trading corporation” does not mean a corporation which trades and does nothing else or in which trading is the dominant activity. A trading corporation may also be a sporting, religious, or governmental body. As long as the trading is not insubstantial, the fact that trading is incidental to other activities does not prevent it being a trading corporation. For example, a very large corporation may engage in trading which though incidental to its non-trading activities, and small in relation to those, is nevertheless substantial and perhaps exceeds or is of the same order in amount as the trading of a person who clearly is a trader. Such a corporation is a trading corporation and is subject of the legislative power in s. 51(xx).38

[23]

Having, in addition, referred to UFU for the purpose of considering the practical application of the principles espoused in Adamson,39 the Full Bench then considered the fifth proposition in ALS.40 In doing so, the Full Bench noted the reliance by Steytler P on the dissenting judgment of Barwick CJ in R v Trade Practices Commission; Ex parte St George County Council (‘St George County Council’)41 and Mason J in the Tasmanian Dam Case.42 In respect to St George County Council, Barwick CJ stated:

“Further, if the terms of an Act expressed in the language of the constitutional power properly construed embrace a government or local government instrumentality or agency, the connexion of the corporation with the government of a State will not of itself place the corporation outside the scope of the power or the statute: Victoria v. The Commonwealth [1971] HCA 16; (1971) 122 CLR 353…

. . .

The power quite obviously, in my opinion, is given to the Parliament to enable it by legislation to control amongst other things at least some of the activities of corporations which fall within its description. It seems to me that the activities of a corporation at the time a law of the Parliament is said to operate upon it will determine whether or not it satisfies the statutory and therefore the constitutional description. Thus, in my opinion, the identification of the corporation which falls within the statutory definition will be made principally upon a consideration of its current activities.

… As I have indicated, the purpose of the grant of legislative power includes the control of the corporate activities of the corporation: it is not so concerned with the motives which prompt those activities, nor the ultimate ends which those activities hope to achieve. If, upon that consideration, the corporation can fairly be described by reason of those activities, their extent and relative significance in the affairs of the corporation as a “trading corporation” it will, in my

36 Ibid.

37 (1979) 143 CLR 190.

38 Ibid 239 cited in Leeman (n 35) [14].

39 Leeman (n 35) [15].

40 Ibid [16]–[17].

41 (1974) 130 CLR 533, 541–3 (‘St George County Council’).

42 Commonwealth v Tasmania (1983) 158 CLR 1.

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opinion, be nothing to the point that it is also a government or State or municipal corporation. The effect of the trading activities of such a corporation upon and in the community will not be lessened or necessarily affected by the fact that it is a State or municipal instrumentality.

However, it was said that for a body such as the applicant to reticulate electricity bought by it in bulk is to perform a public service and not to trade. Of course, one of the justifications put forward for the entry of government into manufacture, trade or commerce is that the public will be better served by the government corporation than it would be by a non-government body seeking only profit or gain. But whatever the merit of such a claim, the fact that government, or a “government” corporation, conducts activities which are of their nature manufacturing, trading or commercial activities does not, in my opinion, alter the nature of those activities. This must particularly be so in relation to an Act made under a constitutional power which extends to enable the control of such activities conducted by government, or “government” corporations.43

[24]

Regarding the seventh proposition advanced by Steytler P, at paragraph [18], the Full Bench in Leeman remarked that it may have been more broadly expressed than is justified by the authorities. In this regard, reference was made to the joint judgment of Mason, Murphy and Deane JJ in State Superannuation Board v Trade Practices Commission44 (cited by Steytler P in support of the proposition):

“Murphy J. ((1979) 143 CLR, at p 239) said “As long as the trading is not insubstantial, the fact that trading is incidental to other activities does not prevent it being a trading corporation”. Indeed, it was essential to the majority’s approach and to its rejection of St. George that a corporation whose trading activities take place so that it may carry on its primary or dominant undertaking, e.g., as a sporting club, may nevertheless be a trading corporation. The point is that the corporation engages in trading activities and these activities do not cease to be trading activities because they are entered into in the course of, or for the purpose of, carrying on a primary or dominant undertaking not described by reference to trade. As the carrying on of that undertaking requires or involves engagement in trading activities, there is no difficulty in categorizing the corporation as a trading corporation when it engages in the activities.

Indeed, we would go on to say that there is nothing in Adamson which lends support for the view that the fact that a corporation carries on independent trading activities on a significant scale will not result in its being properly categorized as a trading corporation if other more extensive non-trading activities properly warrant its being also categorized as a corporation of some other type.

If there be any difference in the comments made by the majority in Adamson it is one of emphasis only. And it is important to note that they were all directed to the issue as it arose for decision, an issue relating to a sporting club and the league with which it was affiliated; they were not aimed at the corporation which has not begun, or has barely begun, to carry on business. It might well be necessary to look to the purpose for which such a corporation was formed in order to ascertain whether it is a corporation of the kind described.” (emphasis added)

[25]

As to the purpose of the formation of a corporation, the Full Bench observed that the Full Court of the Federal Court in UFU appeared to accept that the purpose for which a corporation is formed may be relevant to its characterisation, and the Full Bench therefore

43 St Geroge County Council (n 41) 541-3, cited in Leeman (n 35) [16].

44 (1982) 150 CLR 282, 304–05.

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proceeded on the basis that Steytler P’s seventh proposition is to be applied in the way expressed.45

[26]

In UFU, the Full Court of the Federal Court upheld the primary judge’s finding that the Country Fire Authority (CFA) was a trading corporation, in circumstances where the CFA was a ‘volunteer and community-based fire and emergency services organisation’, that received about $12.93 million in revenue from trading activities, which amounted to 2.7% of its total revenue:

135 We do not accept that the primary judge applied the wrong test, as contended for by the CFA. An important question is whether the corporation’s trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation: see Adamson at 233 per Mason J. The same approach was taken in State Superannuation Board at 305 per Mason, Murphy and Deane JJ where their Honours referred to the nature and the extent or volume of a corporation’s activities needed to justify its description as a [trading] corporation. See also the Tasmanian Dam Case at 156 per Mason J; at 179 per Murphy J, at 240 per Brennan J and at 293 per Deane J.

136 Answering that question does not simply involve the application of a formula or equation nor the substitution of percentages or other measures of monetary value as between the activities found to be trading activities and the activities not so found. The purpose for which a corporation is formed is not the sole or principal criterion of its character as a trading corporation and the Court looks beyond the “predominant and characteristic activity of the corporation.” We refer again to the nature and the extent or volume of a corporation’s activities needed to justify its description as a trading corporation. The relationship between the activities relied upon and the overall activities of the corporation, and the extent of those activities in comparison with the extent of the corporation’s activities overall are relevant. In our opinion, this was the approach taken by the primary judge.

137 If a corporation, carrying on independent trading activities on a significant scale, is properly categorised as a trading corporation that will be so even if other more extensive non-trading activities properly warrant it being also categorised as a corporation of some other type: see State Superannuation Board at 304. In our view, this proposition answers in large part the submissions put as to the public purpose of the CFA. As we have said, the issue is one of characterisation and is a matter of fact and degree.46 (bold for emphasis)

[27]

In Bankstown, the Full Court of the Federal Court recognised trading activities with a commercial character, even where the purpose of the activities was the provision of public welfare services:

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

45 Leeman (n 35) [19], citing UFU (n 33) 525 [136].

46 UFU (n 33) 525 [135]–[137].

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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.47

4 Background

[28]

Applying the abovementioned principles requires consideration of the Respondent’s purpose and the nature and extent of the Respondent’s activities.

4.1 Status of the organisation

[29]

The Respondent is an incorporated association in Western Australia. Whilst, at the time of filing its materials, it had an application pending with the Australian Charities and Not-for-profits Commission (ACNC) to transition to a company limited by guarantee, at the time of the Applicant’s employment and dismissal, it was an incorporated association and was not a company limited by guarantee. It is a registered charity with the ACNC and is accredited as a Community Legal Centre.

4.2 Constitution

[30]

The constitution of the Respondent provides the following in respect of the Respondent’s purpose:

47 Bankstown (n 32) 511–12 [54]–[55].

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To provide accessible, equitable, responsibly and culturally appropriate advice, support and advocacy to people in need in regional Western Australia.

[31]

The ‘Objects of the Association’ set out how the purpose of the Respondent will be achieved. Clause 4 of the constitution reads:

The purpose of the Association shall be achieved by means including, but not limited to:

(a)

providing a financial counselling service and tenancy advocacy service that is free and accessible;

(b)

providing legal information, support and advocacy to target groups of people in need across regional Western Australia;

(c)

providing legal services to women who are unable to otherwise access them. Legal services include, but are not limited to, legal advice, legal information and free representation;

(d)

providing support, information and advocacy to women and children who experience family and domestic violence;

(e)

initiating and promoting research and evaluation of existing laws, policies and processes to work towards law reform and social change in areas relevant to people in need in regional Western Australia;

(f)

encouraging community participation from members of communities in regional Western Australia to participate in the work and management of the service;

(g)

developing clients’ skills, knowledge and confidence to effectively manage their financial and housing situation; and

(h)

ongoing delivery of services through securing of recurring funding and co-ordinated expansion in response to identified community and client trends and needs.

The property and income of the Association must be applied solely towards the promotion of the objects or purposes of the Association and no part of that property or income may be paid or otherwise distributed, directly or indirectly, to any member of the Association, except in good faith in the promotion of those objects or purposes.

[32]

Clause 6.1 of the constitution repeats the obligation set out in the final paragraph of clause 4:

[33]

The constitution reveals that the Respondent’s purpose sits squarely within the advancement of social or public welfare for people in regional Western Australia. It is apparent that its sole function is to the provide services listed in clause 4 (albeit those services are not limited) to ‘people in need’ in a regional area.

[34]

To be able to provide the services under clause 4, under the constitution, the Respondent is provided with certain powers. Clause 5 of the constitution sets out those powers as follows:

The powers conferred on the Association are the same as those conferred by section 14 of the Act, so that subject to the Act and any additions, exclusions or modifications inserted below,

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the Association may do all things necessary or convenient for carrying out its objects and purposes, and in particular, may:

Appoint, employ, remove or suspend such employees as may be necessary for the purposes of the Association;

Apply for and receive donations, grants, loans and/or other moneys from public and private sources;

Take and defend all legal proceedings by or on behalf of the Association;

Acquire, hold, deal with, and dispose of any real or personal property;

Open and operate bank accounts;

Invest its money:

as trust funds may be invested under the Trustees Act 1962 Part III; or

ii.

in any other manner authorised by the rules of the Association;

Borrow money upon such terms and conditions as the Association thinks fit;

Give such security for the discharge of liabilities incurred by the Association as the Association thinks fit;

Appoint agents to transact any business of the Association on its behalf; and

Enter into any other contract it considers necessary or desirable

4.3 Services

[35]

Turning to the services that are actually provided by the Respondent, Joanna Collins, the Chief Executive Officer of the Respondent (Collins), gave evidence that the Respondent’s core function is providing community legal services.48 It does, in addition, provide holistic community support services that often intersect with legal needs, including:

family and domestic violence (FDV) support;

financial counselling;

Redress Support Scheme support;

community migrant services support;

housing support; and

tenancy advice and education.49

48 Witness Statement of Joanna Collins dated 7 May 2026, [11] (Collins Statement); Digital Hearing Book, 11 (DHB).

49 Collins Statement (n 48) [12]; DHB (n 48) 45.

[2026] FWC 2918

[36]

Included in the evidence was the document titled ‘CLC Reporting 2025-26 Statement of Services – CLC – 2025-26 Application No. CLC-25-26000011 From Pilbara Community Legal Services’ (Statement of Services). The ‘Services’ referred to in that document that are provided by the Respondent are as follows:

Legal Assistance Services;

Domestic Violence Advocacy and Victim Support Services (DVAVSS);

Domestic Violence Outreach Initiative (including the Keeping Women Safe in their Homes program) and Domestic Violence Outreach Initiative (Flexible Support Package) (collectively ‘DVO Services’);

Financial Counselling Services;

Housing Support Worker Services (Housing Support Services);

Domestic Violence Support and Financial Counselling Service (DVSFC Program);

Family and Domestic Violence Primary Prevention Grants Program 2024/2026 (Love Shouldn’t Hurt);

Redress Support Services (Redress);

Road Safety Education Program;

Settlement Engagement and Transition Support Services (SETS);

Tenancy Advice and Education Services (TAES); and

Aboriginal Family Safety Services (Robe River).50

[37]

Collins provided detailed evidence regarding the funding of the Respondent. Collins stated that the vast majority of funding is government funding.51 Commonwealth legal assistance funding is provided under the National Access to Justice Partnership (NAJP) arrangements and administered in WA through the Department of Justice.52 Collins stated that the Respondent also receives various State government funding streams, including through FDV and housing/tenancy support programs.53 According to Collins, government funding is tied to program purposes and service delivery outcomes and is subject to reporting and acquittal cycles.54

[38]

As referred to at the beginning of these reasons, the Applicant sought the production of the contracts and tender documentation in respect of each of the ‘Services’ referred to in the Statement of Services. On 15 May 2026, I ordered the production of those documents. The

50 Second Witness Statement of Joanna Collins dated 28 May 2026, [1] (Second Collins Statement); Supplementary Digital Hearing Book, 32 (Supplementary Digital Hearing Book).

51 Collins Statement (n 48] [19]; DHB (n 48) 46.

52 Collins Statement (n 48) [20]; DHB (n 48) 46.

53 Collins Statement (n 48) [21]; DHB (n 48) 46.

54 Collins Statement (n 48) [22]; DHB (n 48) 46.

[2026] FWC 2918

Respondent filed a supplementary witness statement of Collins, who provided digestible detail regarding each of the Services, in respect to its funding source, service, eligibility, fees, process to obtain funding, amounts, surplus, performance, and reporting. Whilst I do not intend to repeat that evidence in full, a heavily summarised version follows.

[39]

Legal Assistance Services are funded by the Commonwealth Government and the funding is administered in Western Australia by the Government of Western Australia through the Department of Justice (DoJ) and the Office of the Director General.55 The funding is used to provide legal advice to the community with community legal education with no fee chargeable to recipients and law and legal reform activities.56 To obtain funding, the Respondent entered into a service agreement with Legal Aid WA on 29 July 2015 and thereafter entered into a new service agreement with the State of Western Australia in May 2021.57 Collins was unable to speak to whether the original funding was obtained through a tender process or other means.58 However, having reviewed the records of the Respondent, Collins expressed that she understood that the DoJ had continued funding by varying the terms of the original service agreement and since 2023, the Respondent had not applied for funding.59 Whilst Collins said that she did not know how the funding amount was determined by the DoJ, she noted that the funding was received in two instalments that were paid on approval of the Statement of Services.60 The Respondent was set to receive $906,173 for the 2026/2027 financial year and had received $442,255 on 31 July 2025 and $442,255 on 31 January 2026.61

[40]

Collins noted that the restated service agreement dated February 2025 prohibits the Respondent from using any of the funding for any other purpose than the ‘Approved Purpose’, being the services listed by the Respondent in the annual Statement of Services.62 If the Respondent retains a surplus of up to 15% of the funding, it is able to carry over that amount without seeking approval.63 The amount carried over can only be used for the delivery of the Legal Assistance Services in the next financial year.64 If the amount of surplus exceeds 15%, the Respondent must seek approval to carry over the amount.65 The DoJ can require the Respondent to repay the amount or deduct it from any scheduled payments.66

[41]

Under the Legal Assistance Services agreement, the Respondent is required to submit to the DOJ a projected budget, periodic financial reviews during the year and periodic services reviews during the year.67

55 Second Collins Statement (n 50) [3]–[4]; Supplementary DHB (n 50) 33.

56 Second Collins Statement (n 50) [5]; Supplementary DHB (n 50) 33.

57 Second Collins Statement (n 50) [8]; Supplementary DHB (n 50) 33.

58 Second Collins Statement (n 50) [9]; Supplementary DHB (n 50) 33.

59 Second Collins Statement (n 50) [10]; Supplementary DHB (n 50) 33.

60 Second Collins Statement (n 50) [12]–[13]; Supplementary DHB (n 50) 33.

61 Second Collins Statement (n 50) [13]; Supplementary DHB (n 50) 33–4.

62 Second Collins Statement (n 50) [16], [JC-A]; Supplementary DHB (n 50) 34, 143.

63 Second Collins Statement (n 50) [17]; Supplementary DHB (n 50) 34.

64 Second Collins Statement (n 50) [17]; Supplementary DHB (n 50) 34.

65 Second Collins Statement (n 50) [17]; Supplementary DHB (n 50) 34.

66 Second Collins Statement (n 50) [17]; Supplementary DHB (n 50) 34.

67 Second Collins Statement (n 50) [19], [JC-A]; Supplementary DHB (n 50) 149.

[2026] FWC 2918

[42]

The DVAVSS program is funded by the Government of Western Australia Department of Communities (DoC).68 Funding was garnered through an application process. The service is provided in Karratha and Roebourne and includes supporting women in court, providing information and advice about available options and pathway, assisting clients to help purchase essential items, assisting with relocation support and conducting check-ins.69 Recipients of the service are not charged fees.70 Whilst Collins noted that she did not know how the DoC determined the amount of funding provided to the Respondent, the amount received for the 2025/2026 financial year was $187,134 for services provided in Karratha and $165,500 as additional payment for services provided in Roebourne.71 The DoC has extended funding in Karratha until 30 June 2027 and in Roebourne, the DoC has committed funding for 2026.72 For the 2026/2027 financial year, the Respondent is set to receive $179,902 for services provided within Karratha (subject to indexation) and $176,000 for services provided within Roebourne.73

[43]

Collins said that the Respondent has not returned a surplus from DVASS whilst she has held the role of CEO.74 However, if a surplus was returned the Respondent would inform the contract manager, explain the reason for the surplus, propose a plan for use of the surplus and seek approval to roll over the funds.75 As to reporting, the Respondent is required to provide six monthly reports and service reviews to the DoC, to measure funding by reference to performance.76

[44]

DVO services are similarly aligned to the services provided under the DVAVSS but are provided in Port Hedland and Newman.77 They are funded by the DoC and recipients of the service are not charged a fee.78 As with the other services, Collins was unaware how the funding amount was determined.79 Collins said that she had reviewed the Respondent’s records and identified that it entered into a service agreement with the Community Development Ministerial Body on 9 September 2010 to provide the DVO.80 Collins said that she did not know whether the original funding was obtained through a tender process or by some other means.81 However, on 2 May 2022, the DoC offered the Respondent a one-off payment for the provisions of a ‘Flexible Support Package’ and the DoC had continued to fund by varying the terms of the original service agreement.82 Collins said that since she became CEO, the Respondent had not applied for funding for DVO services.83

68 Second Collins Statement (n 50) [21]; Supplementary DHB (n 50) 34.

69 Second Collins Statement (n 50) [22]; Supplementary DHB (n 50) 35.

70 Second Collins Statement (n 50) [24]; Supplementary DHB (n 50) 35.

71 Second Collins Statement (n 50) [25]. [31]; Supplementary DHB (n 50) 35.

72 Second Collins Statement (n 50) [33]; Supplementary DHB (n 50) 36.

73 Second Collins Statement (n 50) [34]; Supplementary DHB (n 50) 36.

74 Second Collins Statement (n 50) [36]; Supplementary DHB (n 50) 36.

75 Second Collins Statement (n 50) [37]; Supplementary DHB (n 50) 36.

76 Second Collins Statement (n 50) [39]–[40]; Supplementary DHB (n 50) 36.

77 Second Collins Statement (n 50) [42]; Supplementary DHB (n 50) 36.

78 Second Collins Statement (n 50) [41], [44]; Supplementary DHB (n 50) 36, 37.

79 Second Collins Statement (n 50) [45]; Supplementary DHB (n 50) 37.

80 Second Collins Statement (n 50) [46], [JC-C]; Supplementary DHB (n 50) 37, 410–476.

81 Second Collins Statement (n 50) [47]; Supplementary DHB (n 50) 37.

82 Second Collins Statement (n 50) [48]-[49]; Supplementary DHB (n 50) 37.

83 Second Collins Statement (n 50) [49]; Supplementary DHB (n 50) 37.

[2026] FWC 2918

[45]

For the 2025/26 financial year the Respondent has received $333,676 for the DVO services and from 1 July 2024 to 30 June 2026, the Respondent will receive a one-off payment of $60,000 as a ‘Flexible Support Package’.84 Such funding was extended to 30 June 2027.85 The use of funds is limited to the provision of the DVO service and, according to Collins, the Respondent had not achieved a surplus regarding funding (usually the DVO services had been provided in deficit).86 If, however, there was a surplus, Collins said the same process applied as for the DVAVSS services.87 As to reporting, the Respondent reports on a six-monthly basis in relation to funding, the amounts provided and the clients that were assisted.88

[46]

Financial Counselling Services were operated by the Respondent in Karratha, Roebourne, Port Hedland and Newman; the service funded is by the DoC (in 2012 the party was the Department of Child Protection – see below).89 Services provided included assistance with budgeting, reviewing bills, negotiating with creditors on behalf of clients and delivering community education, workshops and training sessions.90 Recipients of the services were not charged fees and, like the other services referred to, there was no eligibility criteria to access the service.91

[47]

Collins said the Respondent entered into a service agreement with the Department of Child Protection on or around 15 March 2012, which had been subsequently varied and extended.92 Collins was unaware of whether original funding had been obtained through a tender process or by some other means.93 However, the DoC had continued funding by varying the terms of the original funding agreement.94 For the 2025/2026 financial year, the Respondent had received $252,864 for each location where services were provided.95 In May 2024, the DoC notified the Respondent that their services agreements would be extended until 30 June 2027, and in December 2025, the Respondent was notified it would receive one-off cost of living uplift payments of $35,133 across 2025-2026 and $36,313 for 2026-2027.96

[48]

Housing Support Worker Services is a program that is funded by the Commonwealth but the funding is administered by the DoC.97 The funding provides support to individuals in relation to housing matters – for example, assistance to apply for or be placed on waitlists for social housing, or to request transfers within social housing.98 Recipients do not have to meet

84 Second Collins Statement (n 50) [50]–[51]; Supplementary DHB (n 50) 37.

85 Second Collins Statement (n 50) [51]; Supplementary DHB (n 50) 37.

86 Second Collins Statement (n 50) [54]; Supplementary DHB (n 50) 37.

87 Second Collins Statement (n 50) [55]; Supplementary DHB (n 50) 37.

88 Second Collins Statement (n 50) [58]–[59]; Supplementary DHB (n 50) 38.

89 Second Collins Statement (n 50) [60]; Supplementary DHB (n 50) 38.

90 Second Collins Statement (n 50) [61]; Supplementary DHB (n 50) 38.

91 Second Collins Statement (n 50) [62]–[63]; Supplementary DHB (n 50) 38.

92 Second Collins Statement (n 50) [65], [JC-E]; Supplementary DHB (n 50) 38, 552–627.

93 Second Collins Statement (n 50) [66]; Supplementary DHB (n 50) 38.

94 Second Collins Statement (n 50) [67]; Supplementary DHB (n 50) 38.

95 Second Collins Statement (n 50) [68]; Supplementary DHB (n 50) 38–9.

96 Second Collins Statement (n 50) [70]-[71]; Supplementary DHB (n 50) 39.

97 Second Collins Statement (n 50) [78]; Supplementary DHB (n 50) 39.

98 Second Collins Statement (n 50) [79]; Supplementary DHB (n 50) 40.

[2026] FWC 2918

eligibility requirements or pay a fee for the service.99 Collins said that the Respondent entered into a service agreement with the Community Development Ministerial Body on 7 May 2010 and since that time the agreement had been varied and extended.100 Collins was unaware whether the original funding had been secured through a tender process.101 However, the DoC had continued funding by varying the terms of the original service agreement.102 For the 2025-2026 period the Respondent had received $845,642 to provide Housing Support Services.103 As was the case for other services, the Respondent was prohibited from using the funding for any other purpose than to provide Housing Support Services.104 Again, the same process for managing surplus (see paragraph [43] of this Decision) applied to Housing Support Services.105 Reporting was provided to the DoC on a six monthly basis and included, demographic information, case studies, and information regarding outcomes.106 Included in the reporting was an annual funding compliance report which formed part of the DoC broader reporting requirements.107

[49]

Collins gave evidence that the DVSFC Program operated by the Respondent was funded by the Karlka Nyiyaparli Aboriginal Corporation.108 Through the funding, the Respondent provided services to Nyiyaparli Traditional Owners that included meet and greet days, wills workshops, financial counselling and domestic violence support.109 The Respondent also made office space available for use in connection with the delivery of these services. Recipients of the services were not charged fees.110 The Respondent had entered into a service agreement with Karlka on 5 March 2025 and expired in June 2026.111 The agreement arose following discussions between the parties.112 By 30 June 2025, the Respondent had received $80,000 of funding from Karlka.113 Collins said that Karlka would expect to be informed, in general terms, as to how the funding was expended but that in respect of surplus, Karlka did not require the Respondent to provide formal information regarding any surplus or deficit associated with the funding.114 The Respondent retained discretion in relation to any surplus albeit, Collins did not know whether the Respondent would record a surplus or deficit in the current financial year because the Respondent had not yet undertaken a financial review in relation to DVSFC.115

99 Second Collins Statement (n 50) [80]–[81]; Supplementary DHB (n 50) 40.

100 Second Collins Statement (n 50) [83]; Supplementary DHB (n 50) 40.

101 Second Collins Statement (n 50) [84]; Supplementary DHB (n 50) 40.

102 Second Collins Statement (n 50) [85]; Supplementary DHB (n 50) 40.

103 Second Collins Statement (n 50) [86], [JC-F]; Supplementary DHB (n 50) 40, 738.

104 Second Collins Statement (n 50) [89]; Supplementary DHB (n 50) 40.

105 Second Collins Statement (n 50) [90]; Supplementary DHB (n 50) 40.

106 Second Collins Statement (n 50) [92]–[93]; Supplementary DHB (n 50) 41.

107 Second Collins Statement (n 50) [94]; Supplementary DHB (n 50) 41.

108 Second Collins Statement (n 50) [95]; Supplementary DHB (n 50) 41.

109 Second Collins Statement (n 50) [96]; Supplementary DHB (n 50) 41.

110 Second Collins Statement (n 50) [97]; Supplementary DHB (n 50) 41.

111 Second Collins Statement (n 50) [100]–[102], [JC-D]; Supplementary DHB (n 50) 41, 477–551.

112 Second Collins Statement (n 50) [101]; Supplementary DHB (n 50) 41.

113 Second Collins Statement (n 50) [103]; Supplementary DHB (n 50) 41.

114 Second Collins Statement (n 50) [106]; Supplementary DHB (n 50) 42.

115 Second Collins Statement (n 50) [108]–[110]; Supplementary DHB (n 50) 42.

[2026] FWC 2918

Collins noted that there were no formal reporting requirements or performance benchmarking under the agreement.116

[50]

The Family and Domestic Violence Primary Prevention service provided for the delivery of a primary prevention education for domestic violence to High School students and was funded by the DoC.117 There were no eligibility criteria for the service and recipients were not charged for the service.118 The Respondent had entered into a grant agreement with the Children and Community Services Ministerial Body through the DoC on 30 August 2024.119 The Respondent had applied for the funding through an open tender process (the tender having been publicly advertised) and to the best of Collins’ understanding, other organisations were able to submit a tender.120 As part of the Respondent’s application, Collins said the Respondent had indicated that it was applying for Tier 2 funding being an amount of $150,000 to $200,000, albeit annexure JC-H to Collins Second Witness indicated the funding range was 150,000 to $250,000 with the Respondent applying for $210,242.60.121 Collins said that she believed the funding was also awarded to different organisations across WA for a two-year period.122

[51]

For the 2025/2026 financial year, the Respondent received $105,121.30 in funding.123 Collins said that the grant prohibited the Respondent using any funding for any other purpose than the ‘Approved Purpose’ and the funding had been paid in a single lump sum.124 In respect of surplus, whilst, under the services agreement, the Respondent was able to carry over any funding not used within any financial year during the term of the agreement, it was required to repay any funds not used in accordance with the agreement unless otherwise agreed in writing.125 Under the service agreement, the Respondent is required to report on a six-monthly basis and provide a statement of income and expenditure certified by its Chair, CEO or equivalent in accordance with the agreed budget by October 2026.126

[52]

Funded by the Commonwealth Department of Social Services (DSS), the Redress Support Scheme allows the Respondent to employ staff to assist people to claim under the Scheme.127 That assistance takes the form of supporting people by listening to their accounts, preparing written applications on their behalf and submitting the applications to the Scheme for assessment.128 No fee is charged to Scheme applicants.129 Funding amounts are allocated by the DSS to the Respondent, and on 9 May 2022, the Respondent entered into a grant agreement

116 Second Collins Statement (n 50) [112]; Supplementary DHB (n 50) 42.

117 Second Collins Statement (n 50) [114]-[115]; Supplementary DHB (n 50) 42.

118 Second Collins Statement (n 50) [116]; Supplementary DHB (n 50) 42.

119 Second Collins Statement (n 50) [118], [JC-H]; Supplementary DHB (n 50) 42, 805–842.

120 Second Collins Statement (n 50) [119]; Supplementary DHB (n 50) 42.

121 Second Collins Statement (n 50) [120]; [JC-H] Supplementary DHB (n 50) 42, 840.

122 Second Collins Statement (n 50) [121]; Supplementary DHB (n 50) 43.

123 Second Collins Statement (n 50) [122], [JC-H]; Supplementary DHB (n 50) 43, 821.

124 Second Collins Statement (n 50) [123], [JC-H]; Supplementary DHB (n 50) 43, 809, 821.

125 Second Collins Statement (n 50) [125]–[126], [JC-H]; Supplementary DHB (n 50) 43, 811.

126 Second Collins Statement (n 50) [128], [JC-H]; Supplementary DHB (n 50) 43, 822.

127 Second Collins Statement (n 50) [129]–[130]; Supplementary DHB (n 50) 43.

128 Second Collins Statement (n 50) [130]; Supplementary DHB (n 50) 43.

129 Second Collins Statement (n 50) [132]; Supplementary DHB (n 50) 44.

[2026] FWC 2918

with the DSS.130 Collins stated that based on her review of the Respondent’s record, it appears that funding was obtained through a tender process conducted by the DSS and that the DSS had continued to fund the Scheme by varying the terms of the original agreement.131 Collins further stated that since being in the role of CEO, the Respondent had not applied for funding.132

[53]

For the 2025/2026 financial year, the Respondent received $963,939.83 in funding and for the 2026/2027 financial year, the Respondent anticipated receiving an increase in the amount of funding.133 The service agreement requires the Respondent to use the funding to deliver the activities in accordance with the agreement.134 As to surplus, Collins noted the same process detailed at paragraph [43] of this decision.135 The services agreement sets out performance indicators which the Respondent’s delivery of the Scheme is measured against, and the Respondent is required to prepare and maintain an Activity Work Plan which is negotiated with the DSS.136 That plan sets out deliverables, timeframes, and measures achievement.137 In addition, the Respondent is required under the agreement, to submit financial acquittal reports and an Annual Statement of Compliance reports.138

[54]

The Road Safety Commission funded the Respondent’s provision of a Road Safety Education Program to the community.139 The program is delivered through community education sessions and related engagement activities.140 Recipients of the service are not charged a fee and there is no eligibility requirement to access the service.141 Collins said that the Respondent was invited by the Road Safety Commission to participate in the program and was subsequently awarded funding.142 It entered into a grant with the Road Safety Commission on 11 June 2025.143 There was no tender process involved.144 Under the terms of the agreement, the Respondent received $82,881.95 for 2025/26 and $73,448.63 for 2026/2027.145 The funding expires on 29 June 2027.146 The Respondent is prohibited from using the funds for any other purpose than the ‘Approved Purpose’ and, as the current funding agreement is ongoing, the Respondent has not yet reached the end of the funding period for the purposes of a final acquittal.147 However, any funds not used in accordance with agreement, unless

130 Second Collins Statement (n 50) [133]–[134], [JC-I]; Supplementary DHB (n 50) 44, 890–923.

131 Second Collins Statement (n 50) [135]–[136]; Supplementary DHB (n 50) 44.

132 Second Collins Statement (n 50) [136]; Supplementary DHB (n 50) 44.

133 Second Collins Statement (n 50) [137]–[138], [JC-I]; Supplementary DHB (n 50) 44, 918.

134 Second Collins Statement (n 50) [139], [JC-I]; Supplementary DHB (n 50) 44, 893-5.

135 Second Collins Statement (n 50) [141]; Supplementary DHB (n 50) 44.

136 Second Collins Statement (n 50) [142], [JC-I]; Supplementary DHB (n 50) 44, 896–9.

137 Second Collins Statement (n 50) [143], [JC-I]; Supplementary DHB (n 50) 44.

138 Second Collins Statement (n 50) [143], [JC-I]; Supplementary DHB (n 50) 44, 899.

139 Second Collins Statement (n 50) [145]; Supplementary DHB (n 50) 45.

140 Second Collins Statement (n 50) [147]; Supplementary DHB (n 50) 45.

141 Second Collins Statement (n 50) [148]–[149]; Supplementary DHB (n 50) 45.

142 Second Collins Statement (n 50) [150]; Supplementary DHB (n 50) 45.

143 Second Collins Statement (n 50) [151], [JC-J]; Supplementary DHB (n 50) 45, 924–39.

144 Second Collins Statement (n 50) [152]; Supplementary DHB (n 50) 45.

145 Second Collins Statement (n 50) [153], [JC-J]; Supplementary DHB (n 50) 45, 952.

146 Second Collins Statement (n 50) [154]; Supplementary DHB (n 50) 45.

147 Second Collins Statement (n 50) [155], [157], [JC-J]; Supplementary DHB (n 50) 45–6, 942.

[2026] FWC 2918

otherwise agreed in writing, must be repaid.148 The Respondent is required to provide regular reports to the Road Safety Commission in addition to an annual report.149 Reporting includes outcome measures such as the number of participants attending each session, the number of towns and locations in which workshops are delivered, including mining camps, and so on.150

[55]

SETS is funded by the Commonwealth Department of Home Affairs (DHA).151 The Respondent uses this funding to provide settlement and transition services to migrants within the community.152 Whilst the Respondent holds the primary grant agreement with DHA, it subcontracts aspects of the service delivery to the Goldfields Community Legal Centre which delivers the service in the Goldfields region of Western Australia.153

[56]

Eligibility for SETS is determined by criteria established by the DHA.154 Recipients of the service are not charged a fee.155 The Respondent obtained funding through a competitive grant application process conducted by the DHA.156 The process was undertaken through the Commonwealth grants platform and was open to eligible not-for-profit organisations.157 In 2023, the Respondent participated in that process by submitting an application addressing the relevant criteria.158 The Respondent entered into a grant agreement with the DHA in 2024.159 DHA has continued funding for SETS by varying the terms of the original agreement.160

[57]

For the 2025/2026 financial year, the Respondent received $549,554.98 in funding from the DHA and for the 2026/2027 financial year, the Respondent anticipates receiving $524,110.64.161 The service agreement requires the Respondent to use the funding to deliver activities in accordance with the agreement.162 As to surplus, Collins again reiterated that the Respondent would undertake a process as detailed at paragraph [43] of these reasons for decision.163 The agreement between the Respondent and the DHA sets out performance indicators which the Respondent’s delivery of SETS is measured against.164 The Respondent is obliged under the agreement to prepare and maintain an Activity Work Plan, which is negotiated by the DHA and sets out deliverables, timeframes, and measures of achievement.165

148 Second Collins Statement (n 50) [158], [JC-J]; Supplementary DHB (n 50) 46, 943.

149 Second Collins Statement (n 50) [160]; Supplementary DHB (n 50) 46.

150 Second Collins Statement (n 50) [162]; Supplementary DHB (n 50) 46.

151 Second Collins Statement (n 50) [165]; Supplementary DHB (n 50) 46.

152 Second Collins Statement (n 50) [166]; Supplementary DHB (n 50) 46.

153 Second Collins Statement (n 50) [168]; Supplementary DHB (n 50) 46–7.

154 Second Collins Statement (n 50) [169]; Supplementary DHB (n 50) 47.

155 Second Collins Statement (n 50) [170]; Supplementary DHB (n 50) 47.

156 Second Collins Statement (n 50) [171]; Supplementary DHB (n 50) 47.

157 Second Collins Statement (n 50) [172]; Supplementary DHB (n 50) 47.

158 Second Collins Statement (n 50) [173]; Supplementary DHB (n 50) 47.

159 Second Collins Statement (n 50) [174], [JC-K]; Supplementary DHB (n 50) 47.

160 Second Collins Statement (n 50) [175]; Supplementary DHB (n 50) 47.

161 Second Collins Statement (n 50) [176]–[177], [JC-K]; Supplementary DHB (n 50) 47, 1021.

162 Second Collins Statement (n 50) [178], [JC-K]; Supplementary DHB (n 50) 47, 973–80.

163 Second Collins Statement (n 50) [180]; Supplementary DHB (n 50) 47.

164 Second Collins Statement (n 50) [181], [JC-K]; Supplementary DHB (n 50) 47, 980.

165 Second Collins Statement (n 50) [182], [JC-K]; Supplementary DHB (n 50) 47–8, 982–3.

[2026] FWC 2918

Financial acquittal reports are required to be submitted to the DHA in addition to an Annual Statement of Compliance reports.166

[58]

The Department of Mines, Industry Regulation and Safety (now called the Department of Local Government, Industry Regulation and Safety) (Department) provides funding to the Respondent for TAES.167 Under this funding, the Respondent provides tenancy advice, education, and support to members of the community.168 Recipients of the service are not charged a fee and that service does not otherwise have any eligibility criteria.169 Collins stated that in 2016, the Department invited the Respondent, and other organisations, to submit an application for funding for the provision of tenancy advice and education services.170 The Respondent submitted an application in response and was subsequently awarded funding.171 Collins noted that after contacting the Department, she received confirmation that there was no formal service agreement for the arrangement between the Department and the Respondent.172 For the 2025/2026 and 2026/2027 financial years, the Respondent will receive $605,542.02 in funding.173 Collins further noted that the Respondent had not, to date, been required to engage in detailed discussions with the Department about the treatment of surplus but, generally, funding had been fully acquitted each year.174 Were there to be a surplus, Collins was of the view that the Respondent would undertake the process detailed at paragraph [43] of these reasons for decision.175 As to the measurement of performance, the original response document provided by the Department to the Respondent included a number of performance indicators and the Respondent was required to report on the same every six months.176

[59]

Robe River Kuruma Aboriginal Corporation (RRKAC) funds the Aboriginal Family Safety Services.177 The Respondent does not directly deliver front-line services to clients under this arrangement but employs a Domestic Violence Coordinator who in turn provides supervision, advice, support and training to RRKAC’s Aboriginal Family Safety Officer.178 The Respondent does not charge fees for the services provided by the Domestic Violence Coordinator.179 RRKAC obtained a funding grant independently from the Respondent but had approached the Respondent to provide support in relation to the delivery of the services.180 Between 7 February 2025 and 19 February 2027, the Respondent will receive a total amount of $250,000 from RRKAC – an amount that reflects the wages and associated on-costs of the

166 Second Collins Statement (n 50) [182], [JC-K]; Supplementary DHB (n 50) 48, 983–4.

167 Second Collins Statement (n 50) [184]; Supplementary DHB (n 50) 48.

168 Second Collins Statement (n 50) [185]; Supplementary DHB (n 50) 48.

169 Second Collins Statement (n 50) [186]–[187]; Supplementary DHB (n 50) 48.

170 Second Collins Statement (n 50) [188]; Supplementary DHB (n 50) 48.

171 Second Collins Statement (n 50) [190]; Supplementary DHB (n 50) 48.

172 Second Collins Statement (n 50) [192], [JC-O]; Supplementary DHB (n 50) 48, 1197.

173 Second Collins Statement (n 50) [193], [JC-L]; Supplementary DHB (n 50) 49, 1080.

174 Second Collins Statement (n 50) [196]; Supplementary DHB (n 50) 49.

175 Second Collins Statement (n 50) [197]; Supplementary DHB (n 50) 49.

176 Second Collins Statement (n 50) [198]–[200], [JC-L]; Supplementary DHB (n 50) 49, 1045.

177 Second Collins Statement (n 50) [204]; Supplementary DHB (n 50) 50.

178 Second Collins Statement (n 50) [205]; Supplementary DHB (n 50) 50.

179 Second Collins Statement (n 50) [206]; Supplementary DHB (n 50) 50.

180 Second Collins Statement (n 50) [207]–[209]; Supplementary DHB (n 50) 50.

[2026] FWC 2918

Domestic Violence Coordinator.181 Collins stated that surplus funds did not arise under the agreement and there were no specified performance benchmarks, service level targets or formal reporting obligations.182

[60]

Collins gave evidence that the Respondent is projected to receive approximately $5.7 million in State and Commonwealth funding for FY2025/2026. Broken down, revenue sources were as follows:183

FY 2024

Grants and donations

$4,012,381

Other income

Prior period refunds ($4,574) reimbursements and subsidies ($9,532), traineeship support ($1,275), rental income 22,631.

$38,012

Interest

$13,661

Total

$4,064,054

FY 2025

Grants and donations

($5,204 donations)

$4,542,584

Other income

Prior period refunds ($4,574) reimbursements and subsidies ($9,532) and traineeship support ($1,275) and rental ($21,118)

$72,175

Interest

$17,755

Other gains

Disposal/sale of property, plant and equipment (one-off gain)

$104,357

Total

$4,736,871

[61]

Collins said that the Respondent recorded an account surplus of $100,883 in FY2025 but in FY2024 had recorded an accounting deficit of $87,390.184

181 Second Collins Statement (n 50) [211]–[213]; Supplementary DHB (n 50) 50.

182 Second Collins Statement (n 50) [214]–[216]; Supplementary DHB (n 50) 50.

183 Collins Statement (n 48) [29]–[33]; DHB (n 48) 47.

184 Collins Statement (n 48) [34]; DHB (n 48) 47.

[2026] FWC 2918

[62]

During the hearing, Collins was asked in cross examination about the Respondent’s approach to surplus funds.185 Collins reiterated what she had stated in her witness statement (detailed at paragraph [43] of these reasons for decision) and was consistent with her answers. When asked about a funding shortfall of about $171,000 and that the Respondent’s Board had approved the use of previous years’ service funds to fund the shortfall, Collins responded that the proposition was ‘not correct’.186 When questioned, Collins clarified that accounting surpluses had funded the shortfall but that all program funding needed to be used in the delivery of the purpose for which the program was intended.187

[63]

When again asked whether the Respondent had discretion as to how funds were used, Collins responded that it was only in respect of administration components.188 Collins explained that the Respondent had to demonstrate how it was going to use funds for service delivery, insurances, and those sorts of overheads that go along with providing the service.189 Collins acknowledged there was discretion in that respect, but that the Respondent still needed to be able to deliver services to be able to ensure the Respondent had the appropriate supports around those individuals who delivered the services.190

[64]

Again, Collins was asked whether surplus funds (from one funding arrangement) could be used to fund other activities of the Respondent, to which Collins responded in the negative. In cross examination, Collins was taken to page 304 of the Supplementary Digital Hearing Book to a passage in the document titled ‘Application to Provide Domestic Violence Advocacy and Victim Support to 30 September 2026’ that read ‘[t]he management of the budget to meet the required outcomes will be at the discretion of the successful Respondent’. Collins was then asked whether she agreed that there was a discretion. Collins responded that there was some discretion on how outcomes were delivered but that the funds still had to be used for the purpose of delivering on outcomes.191

[65]

Again, it was proposed to Collins that the Respondent had discretion that extended to a discretion to deliver the surplus in a cost-effective way and generate surplus funds and Collins was asked whether the Respondent had discretion to generate surplus funds, Collins responded:

Surplus for the intended use of delivering the services. So if the cost effective way, for example, means that we could employ two people as opposed to one person to do it within the moneys that they’ve given us that’s a discretion that we have to be cost effective. We cannot create a surplus and use this money to fund an entirely different program all together.192

[66]

Collins was taken to page 355 of the Supplementary Digital Hearing Book and it was observed that in response to a question regarding risk that may impact on service delivery and how those risks might be managed, the Respondent had answered by looking ‘at contingencies

185 Transcript of Proceedings, Elder v Pilbara Community Legal Service Incorporated and Collins (Fair Work Commission, C2026/2882, Beaumont DP, 13 May 2026, 1 July 2026), [PN456]–[PN532] (Transcript).

186 Ibid [PN463].

187 Ibid [PN470].

188 Ibid.

189 Ibid.

190 Ibid [PN472].

191 Ibid [PN496].

192 Ibid [PN510].

[2026] FWC 2918

across the organisation for other contract that may have ongoing funding’. The document in question was in respect of an expression of interest for domestic violence advocacy and victim support services variation in the Roebourne funding.193 The following dialogue ensued:

And I’m putting to you – I’m saying to you that that answer indicates that PCLS would use funds from other programs to fund a shortfall with respect to the domestic violence advocacy and victim support services for Roebourne. That’s what that answer indicates, isn’t it?—Yes. So as it’s written that is correct. However, that is an extension of the DVAS Karratha, and so it’s in reference to the DVAS Karratha funding.

What is in reference to DVAS Karratha?—The risk. So looking at funding across the organisation is specifically related to if there was any additional funding in the DVAS Karratha which could supplement the DVAS Roebourne, because it’s the same program. This is just an extension of the DVAS program funding we have for Karratha.

So you’re saying that the answer you gave in that expression of interest document was incomplete; is that your evidence?—No. No, what I’ve written is in correct, but it’s in relation to DVAS Karratha specifically, because this is an expression of interest for a variation to the original DVAS contract we have, which is Karratha based.

It doesn’t say anything about Karratha. You agree with that, don’t you?—Yeah, I agree with that. I agree, but it is specifically related to a variation to the DVAS contract we have for Karratha.

Could you look at the next risk in that table?—Yep.

The risk is identified as indexation award increase exceeds the funding envelope?—M’mm.

And your answer to that risk was, ‘Look at discretionary funding that the organisation has to support any shortfall as a result of award indexation increases applied over the two year period.’ You would agree that that answer indicates that PCLS through its activities generates funds that are discretionary and can be applied to the delivery of services for domestic violence advocacy victim support in Roebourne?—As I’m reading that I can understand why you would make that assumption, but for us it would be around good financial management and ensuring that if we create income through interest we would then be able to cover the costs of employing people, or potentially look at if we were employing new people which level will we recruit them to so we can cover any increases in costs of salaries over time. So that’s just good management.

This risk doesn’t say anything about recruiting people to lower levels. It talks about identifying discretionary funding that the organisation has to support a shortfall?—Yep.

And you agree with me that that indicates that PCLS has sources of discretionary funds?—As I said that’s your interpretation of how I’ve written that. That’s not how we would do it. The implication in that risk is that PCLS has sound financial management and we would ensure that we can manage these risks and plan for these risks accordingly.

That’s not the answer at all, is it? That’s not the answer you gave. You didn’t tell the Department that you have sound financial management, high risk mitigation strategy. You said you would look to other sources of funds, didn’t you? That was your answer?—Yes, that’s correct.

193 Ibid [PN519].

[2026] FWC 2918

You would agree with me that PCLS has discretionary sources of funds?—No, I don’t agree with that statement.194

4.4 Property arrangements

[67]

The Respondent has offices in four locations to accommodate arrangements necessary to support operations and staffing in remote and regional locations.195 Collins stated that the only regular revenue-generating activity was minor rental income relating to some staff accommodation arrangements.196 That income was applied to cover costs such as property management, repairs and maintenance.197 Detail regarding residential property owned by the Respondent and the remaining leased properties was provided at paragraph 42 of Collins’ first witness statement.

4.5 Karratha Legal Alliance (KLA)

[68]

In her witness statement, the Applicant gave evidence that Collins had informed her that the Respondent desired to achieve financial sustainability by doing paid work and not being reliant solely on government funding.198 The Applicant said that lawyers of the Respondent had either begun doing paid legal work or were about to do paid legal work.199

[69]

Collins gave evidence that KLA had been registered in April 2026 but had not commenced trading.200 A principal solicitor had been engaged on contract to establish activities required to set up KLA.201 The Respondent anticipated that KLA may launch around the end of May 2026.202 Collins stated that any future intention that KLA may generate net proceeds to support the Respondent’s free service delivery was down the track and that KLA had not commenced trading.203

5 Consideration

[70]

Starting with the latter point first, to the extent that the submission is made that the establishment of KLA under the auspices of the Respondent, leads to, or in part to, the conclusion that the Respondent is a trading corporation, the contention cannot succeed. Of course, a company can be characterised as a trading corporation prior to the commencement of trading. In Fencott v Muller, it was said that where a corporation has not begun, or has barely begun, to carry on business, its constitution, including its objects, assumes particular

194 Ibid [PN522]–[PN532].

195 Collins Statement (n 48) [39]–[40]; DHB (n 48) 48.

196 Collins Statement (n 48) [41]; DHB (n 48) 48.

197 Collins Statement (n 48) [41]; DHB (n 48) 48.

198 Witness Statement of Kellene Elder dated 30 April 2026, [13(a)] (Elder Statement); DHB (n 48) 21.

199 Elder Statement (n 198) [13(d)]; DHB (n 48) 21.

200 Collins Statement (n 48) [47]; DHB (n 48) 48.

201 Collins Statement (n 48) [48]; DHB (n 48) 48.

202 Collins Statement (n 48) [49]; DHB (n 48) 48.

203 Collins Statement (n 48) [50]; DHB (n 48) 49.

[2026] FWC 2918

significance as a guide.204 Therefore, a corporation may bear the character of a trading corporation before the commencement of trading, based on the purposes for which it was formed and its powers.

[71]

Whilst the constitution of the Respondent was furnished, it does not assist the Applicant in these circumstances. The constitution of the Respondent indicates a purpose other than that focused or premised upon trade. In accordance with its constitution, the Respondent is to provide accessible, equitable, responsibly and culturally appropriate advice, support and advocacy to people in need in regional Western Australia. The ‘Objects of the Association’, which set out how the Respondent will achieve its purpose, are similarly aligned. Services are provided to recipients of the services free of charge with no focus on profit making. There is no competition to attain recipients. The Respondent’s predominant purpose is altruistic and as such its constitution emphasises that property and income must be applied solely towards the promotion of the objects or purposes of the Association and no part of that property or income may be paid or otherwise distributed, directly or indirectly, to any member of the Association, except in good faith in the promotion of those objects or purposes. No constitution or other document of similar nature was provided in respect of KLA, and whilst Collins spoke of future ‘intent’, such evidence was speculative and insufficient to premise cogent findings. It follows that weight, as is appropriate, has been given to the direct evidence before me in the form of the Respondent’s constitution.

[72]

The approach adopted by the Federal Court in Bankstown was that the time to evaluate whether a corporation is a constitutional (trading) corporation is when the application is made.205 At the relevant time, the Respondent’s constitution required all income and property be applied exclusively toward the promotion of its objects. Whilst the Applicant was very much focused on asking questions about the Respondent’s ability to generate surplus funds and to retain discretion to apply those funds, I am not persuaded that the accrual of accounting surplus whether through an inadvertent resignation of an employee or otherwise through managerial efficiencies and the use of that surplus for the purpose of providing the services as referred to in this decision (pursuant to each service agreement) points to factors indicative of trading. There was no suggestion that the Respondent profited from or sought to profit from its activities under the service agreements so as to fund any other activities that were permitted by its constitution.

[73]

In the decision of this Commission in Pasalskyj,206 the Commissioner, as he was then, considered how government funding and related activities had been treated by Courts and Tribunals in terms of the characterisation of those activities for discerning whether they were trading. The Commissioner referred to the judgment in ALS, the decision of the Australian Industrial Relations Commission in Fowler v Syd West Personnel Ltd,207 where it was found that a corporation established to create and operate a long-term employment program for people with intellectual disabilities, funded by government grants, was not a trading corporation, and

204 (1983) 152 CLR 570, 602, citing State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282, 304–5.

205 (n 32) 509 [47].

206 [2015] FWC 7309.

207 [1998] AIRC 904.

[2026] FWC 2918

the judgments of Bankstown and E v Australian Red Cross Society208 and UFU. At paragraph [58] of Pasalskyj, the Commissioner stated:

Alternatively, there are activities that are undertaken by organisations similar to Outcare that are the subject of government payments whereby governments subsidise the services provided by the organisation. Typically, these involve the provision of bulk grants that might be linked to performance requirements and benchmarks, but do not involve fee for service in the conventional sense. These services lack the character of buying and selling between the organisation and the funding agency, and are often provided gratuitously to the public and are considered to be an end in themselves. That is, the purpose of the service is not to generate income but rather, to provide the service itself. The provision of blood products by the Red Cross in E v Red Cross is an example of this form of non-trading activity. Activities of this nature are not considered to be trading activities for present purposes.

[74]

Collins presented as a forthright witness who endeavoured, as best as she could, to provide an accurate account of the content of service agreements and related documentation -some of which was historical (and most of which was accessible for examination in the documents produced). Collins gave evidence that she was unable to locate information as to whether the funding for Legal Assistances Services, DVO services, Financial Counselling Services, and Housing Support Worker Services was obtained through a tender process. Regarding the Road Safety Education Program, the Respondent was invited by the Road Safety Commission to participate in the program and was subsequently awarded funding. RRKAC had approached the Respondent to provide support in relation to the delivery of the Aboriginal Family Safety Services, and in respect to TAES, the Department invited the Respondent, and other organisations, to submit an application for funding for the provision of tenancy advice and education services. Funding for SETS had been through a competitive grant scheme and for the Redress Support Scheme, had been through competitive tender as was the Family and Domestic Violence Primary Prevention service.

[75]

Turning to the Redress Support Scheme and the Financial Counselling Services, the Applicant submitted that these services which had been purchased from the Respondent, were activities that were properly characterised as trading. The services were provided under agreements that, said the Applicant, indicated the Respondent was providing agency services for each contracting government party. The two services combined accounted for more than 25% of the Respondent’s grant revenue.

[76]

The Applicant pointed to the services agreement between the Respondent and the Commonwealth Department of Social Services, requiring the Respondent to work in partnership with the government party in respect of the Redress Scheme. This partnering agreement was said to include measures by the government party to control what is said and communicated about the Redress Scheme, training of the Respondent’s staff by the government, promoting the Redress Scheme through the Respondent’s stakeholder networks and creating a dedicated Respondent Redress Scheme webpage.

[77]

That the Redress Scheme is funded through the provision of a grant or grants, that the eligible grant activities are stipulated as is the eligible expenditure, and that the grant opportunity is required to be applied for through an online platform and is a ‘competitive’ and

208 (1991) 27 FCR 310.

[2026] FWC 2918

open process, are not indicia of an agency arrangement or of activities indicative of trade. As to what the Redress Scheme addresses, well, it is essentially a public welfare service at government expense. The Respondent is awarded a grant to provide that service. This in my view does not constitute trade.

[78]

The Financial Counselling Services agreement between the Respondent and the Department of Child Protection and thereafter the DoC, provided an annual contract price referred to as a ‘Service Payment’ provided on a quarterly basis. The payments were subject to the provision of reports and were to be in accordance with ‘Service Agreement Management Requirements’. The ‘Service Agreement Details’ provided that the Department of Child Protection would issue to the Respondent a ‘Recipient Created Tax Invoice’ in respect of the GST payable on the supply of the service. Similarly, in ALS, the Aboriginal Legal Service was required to submit invoices to the Commonwealth.209 As was the case in ALS, there is nothing in the funding arrangement in respect of the Financial Counselling Services agreement that alters the fact that the Respondent provides the financial counselling services to those it has been set up to help and that it is not competing for the recipients of those services.210 Services under the contract are overseen, and controlled, by the relevant government department. Although fees are paid on invoice, as in ALS, I consider that this is suggestive of merely an accounting device and the fees must be provided in the pre-ordained sums, so long as the contracted services are provided.211

[79]

Having considered the constitution of the Respondent, the services it provides and the manner in which they are provided, the process to obtain funding for each of the services the Respondent provides, the funding awarded and by whom it is awarded, and the manner in which it was provided to the Respondent, the reporting requirements under the service agreements, and the performance requisites the Respondent is required to meet in respect of each service, I am of the view that the activities of the Respondent are not those of trade.

[80]

The funding arrangements involve the provision of bulk grants (at times paid quarterly or the like) or, as is the case for the Financial Counselling Services a funding amount, that might be linked to performance requirements and benchmarks, but do not involve fee for service in the conventional sense. As was observed in ALS, I am of the view that any performance benchmarking or reporting was designed as an accountability mechanism to enhance efficiency in respect of services funded by the State or Federal government.212 As it is, only two funding arrangements were secured through a competitive tender and one through a competitive grant scheme. Nevertheless, funding appeared to take the form of moderately sizable pre-ordained sums (whether provided in instalments or as a whole) and Collins readily admitted she was unaware how the amounts were pre-determined. That the Respondent had discretion as to who the services might be provided and to staffing and the like, does not distract from a finding that the Respondent was not engaged in trading.

[81]

The Applicant submitted that the Respondent provides a broad range of services, complex programs across multiple sites in the Pilbara, for which it seems to be continuing to

209 (n 2) 457 [31]; 470–1 [72].

210 Ibid 470 [71].

211 Ibid 471 [72].

212 Ibid 456 [24].

[2026] FWC 2918

expand those services both in terms of locations and numbers of people it provides services to, but also the breadth of the services that it provides. The Applicant referred to Collins giving evidence about the need for a commercial and business-like approach to managing that expansion. That the Respondent adopted a commercial and business-like approach, does not in turn indicate that the Respondent was trading. It does, however, indicate that the Respondent assumed accountability as a charitable organisation for efficiently managing the funding granted to it for the provision of services pursuant to 12 agreements. The number of services provided by the Respondent to the non-fee paying recipients and the broad range of those services, again is not indicative that the Respondent was necessarily trading.

[82]

Turning away from provision of the services, the Respondent generated rental income and interest. Whilst I accept that rental income may constitute trading activity, in the case of the Respondent I find it to be merely a peripheral matter. Ms Collins gave evidence in her first witness statement that in financial year 2024, the Respondent generated $22,631 in rental income and similarly, in financial year 2025, the Respondent generated $21,118 in rental income. As percentage proportions of the total revenue for those respective years, those figures are negligible. The rental income it receives is passive and, as an incidental return on the property it holds, not a commercial operation carried on with a view to earning revenue.

[83]

In financial year 2025, PCLS disposed of property, plant and equipment in the sum of $104,000. Collins gave evidence that this was a one-off capital transaction. It does not strike me that the Respondent is in the business of acquiring and disposing of assets for reward. The realisation of capital assets on a single occasion is not a business activity carried on with a view to earning revenue.

[84]

The Respondent provides its services only to those it had been set up to help and it did not compete for those, or any other, recipients, as noted. Whilst it generated revenue through some property and the sale of an asset, these activities were of no significance when State and Federal funding is considered. The Respondent’s constitution required all income and property be applied exclusively toward the promotion of its objects and that no members were to receive profit, bonus or dividend. There was no suggestion that the organisation profited from or sought to profit from its activities under the Commonwealth or State contracts so as to fund any other activities that were permitted by its constitution. There was also no suggestion that it performed other activities of any significance, and the organisation was classified as a registered charity with the ACNC and accredited as a Community Legal Centre.

6 Conclusion

[85]

For the reasons given, I find that the Respondent is not a trading corporation. As a consequence, the Respondent is neither a constitutionally covered entity nor a national system employer. In these circumstances, the Commission does not have jurisdiction to deal with the Applicant’s application under s 365 of the Act, and therefore the application is dismissed.”

Elder v Pilbara Community Legal Service Incorporated, Joanna Collins [2026] FWC 2918 delivered 3 August 2026 per Beaumont DP