Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council [2008] FCA 1268

FEDERAL COURT OF AUSTRALIA

Australian Workers' Union of Employees, Queensland v Etheridge Shire Council [2008] FCA 1268

WORKPLACE RELATIONS – workplace agreement purported to be lodged by the Etheridge Shire Council under the Workplace Relations Act 1996 – whether the Etheridge Shire Council is an "employer" pursuant to section 6 of the Workplace Relations Act – answering that question dependant upon whether the Council is a corporation to which section 51(xx) of the Constitution applies – Council held not to be such a corporation – Council therefore held not to be an "employer" – Council therefore held ineligible to lodge the relevant workplace agreement.

CONSTITUTIONAL LAW – Corporations Power – "trading or financial corporations" – whether the Etheridge Shire Council is a "trading corporation" or a "financial corporation" within section 51(xx) of the Constitution – held that the test for characterising the nature of a corporation in the context of s 51(xx) is a consideration of the predominant or characteristic activity of the body, the extent of that activity and the relative significance of that activity in the affairs of the corporation – where the activities of the Council were not limited to trading – where the predominant and characteristic activity of the Council was that of a local government – Council held not to be a "trading corporation" or a "financial corporation"

Constitution s 51(xx) Federal Court of Australia Act 1976 (Cth) s 21 Local Government Act 1993 (Qld) ss 2, 24, 25, 26, 32, 33, 35, 36, 164, 229, 481, 525, 526, 531, 545, 896, 901, 1071A, Sch 2 Workplace Relations Act 1996 (Cth) ss 5, 6, 151, 327 Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth) Item 33, Pt 3, Sch 2

Aboriginal Legal Service of Western Australia Inc v Lawrence [2007] WAIRC 435 cited Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 160 discussed Bank of New South Wales v Commonwealth (1948) 76 CLR 1 followed Commonwealth v State of Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 cited E v Australian Red Cross Society (1991) 27 FCR 310 cited Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436 cited Fencott v Muller (1983) 152 CLR 570 cited Forbes & Anor v Australian Yachting Federation Inc (1996) 131 FLR 241 cited Huddart Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330 cited Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 considered Ku-ring-gai Co-operative Building Society (No. 12) Ltd (1978) 36 FLR 134 cited Meriwether v Garrett 102 US, 472 cited Mid Density Development v Rockdale Municipal Council (1992) 39 FCR 579 considered Mid Density Developments v Rockdale Municipal Council (1993) 44 FCR 290 cited New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 followed Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (2002) 120 FCR 191 cited Quickenden v O'Connor (2001) 109 FCR 243 cited R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533 discussed R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 applied Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 discussed Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 discussed State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 cited United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 cited Widgee Shire Council v Bonney (1907) 4 CLR 977 considered Wingadee Shire Council v Willis (1910) 11 CLR 123 considered