Do Nonprofit Organisations “Trade‿ Under The New Work Choices Legislation?

Abstract

The new Workplace Relations Amendment (Work Choices) Act 2005 (Cth) is having a significant impact on all employers and employees, but its applicability to nonprofit corporations is unclear. The amended Workplace Relations Act 1996 as a consequence now applies to a “constitutional corporation‿ which is in turn defined as a “foreign corporation, or a trading or financial corporation formed within Australia‿ as per paragraph 51(xx) of the Australian Constitution. The crux of the issue is which nonprofit organisations, if any, are “trading‿ corporations? The key dividing line for business organisations is whether they are “corporations‿ (rather than partnerships or trusts). Clearly, the vast majority of business organisations trade. For nonprofit organisations the dividing line will be both whether they are a “corporation‿ and whether they “trade‿.