DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Williams
v
Goldendays Pty Ltd & D Kolichev & L Kolichev T/A Stirling Aluminium and Glass
(U2015/3761)

Application for relief from unfair dismissal - not a National System Employer.

[1] Mr Benjamin Williams has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Williams was employed as an apprentice by Goldendays Pty Ltd & D Kolichev and L Kolichev T/A Stirling Glass and Aluminium (the Respondent).

[3] The Respondent has objected to the application claiming the Fair Work Commission (the Commission) does not have jurisdiction as it is not a national system employer for the purposes of the Fair Work Act 2009 (the Act). The Applicant says the Respondent is a trading corporation and hence the Commission has jurisdiction to deal with the matter.

[4] This decision deals with the jurisdictional question of whether the Respondent is a national system employer.

[5] Section 14 of the Act states that a national system employer is (amongst others) a constitutional corporation, in so far as it employs, or usually employs, an individual.

[6] The Respondent says that it is a partnership and the three partners in the partnership are:

• Goldendays Pty Ltd,



• Done Kolichev and



• Lila Kolichev.

[7] The trading name for the partnership is Stirling Glass & Aluminium. The partnership has an ABN.

[8] Goldendays Pty Ltd was, until December 2000, the trustee of the D&L Kolichev family trust. It was replaced as trustee at that time by Lila and Done Kolichev. Goldendays Pty Ltd has not been the trustee for the family trust for 15 years.

[9] The Respondent submits that Goldendays Pty Ltd:

• Does not have an ABN;



• Is not registered for GST;



• Does not have a bank account;



• Has not been involved in any form of trade;



• Has no income except that received as a partner pursuant to the partnership distribution arrangement.

[10] Stirling Glass & Aluminium is listed on the Applicant’s payslip as his employer and is named as the employer on his apprenticeship papers.

[11] The Applicant says that the Respondent is a proprietary limited company (despite being listed on the Australian Business Register as a family partnership) and has an ABN. He submits that a proprietary limited company is a constitutional corporation.

[12] The Applicant further submits that Goldendays Pty Ltd participates in trade by virtue of being part of the partnership which, as a whole, engages in trading activities. He submits that, even if it does not directly engage in any trading activities, being a partner in a partnership that does engage in trading activities has the same effect.

[13] The Applicant submits that Goldendays Pty Ltd is a trading corporation, it cannot be separated from the partnership and therefore the partnership is a national system employer.

Consideration

[14] A partnership between two or more persons is not, by definition, a corporation.

[15] In Pierina McInnes v North Perth Vet Centre 1 Gooley DP found that the employer was a national system employer as one of the partners was a trading corporation.

[16] The case before me is not materially different in that respect. If Goldendays Pty Ltd is a trading corporation then the Respondent is a national system employer.

[17] D Kolichev and L Kolichev is a partnership – it is not disputed that that part of the extended partnership is not a trading corporation. It is only if Goldendays Pty Ltd itself is a trading corporation that the partnership will take on that characteristic of a trading corporation and will therefore be a national system employer for the purpose of the Act. That is, it will only be if one of the constituent partners is a trading corporation that the partnership can be a national system employer.

[18] Goldendays Pty Ltd is a corporation. The question is whether it is a trading corporation. For Goldendays Pty Ltd to be a ‘trading corporation’ a substantial portion of its activities would have to be trading activities. Trading is generally accepted, in this context, to mean an activity that involves some notion of buying and selling something or some service.

[19] The Respondent has provided me with the tax returns for the 2012/13 and 2013/14 financial years for Goldendays Pty Ltd. These returns indicate that the only income of Goldendays Pty Ltd is that received from the partnership distribution. In all other respects there is nothing in the returns to indicate that Goldendays Pty Ltd is engaged in any buying or selling of goods or services or that it generates any revenue. In fact its tax returns indicate that it generates no revenue.

[20] On this basis I am satisfied that Goldendays Pty Ltd is not a trading corporation. Whilst the partnership structure is unusual, to say the least, my role is not to question if the partnership is of any value to the partners or the best partnership structure to have in place but rather to determine if it is a national system employer.

[21] Given my findings above I am satisfied that the employer is a partnership and is not a national system employer.

[22] The Commission therefore has no jurisdiction to deal with the application.

[23] The application is dismissed. An Order to this affect will be issued with this decision.

COMMISSIONER

Appearances:

S. Williams for the Applicant.

V. Dangubic of Frichot & Frichot Lawyers for the Respondent.

Hearing details:

2005.

Melbourne and Perth (video hearing):

June 12.

Final written submissions:

Respondent: 19 June 2015.

Applicant: 23 June 2015.

 1   [2015] FWC 2720.

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