DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Kim Cowie
(AB2016/394)

Application for an order to stop bullying – whether workplace conducted by a constitutionally covered business – incorporated sporting association – whether trading corporation – whether affiliation fees and other activities and income should be treated as trading activities – most activities not in the nature of trading services – whether other income producing activities trading in nature and significant – limited trading activities found – trading activities not significant and not sufficient to impact upon the characterisation of the association – not a trading corporation – not a constitutionally-covered workplace – whether alternative jurisdictional basis – referral of powers by Victoria – not relevant to anti-bullying jurisdiction – no jurisdiction to deal with application – application dismissed – s.789FD – Fair Work Act 2009.

1. The background to this matter

[1] Ms Kim Cowie has made an application under s.789FC of the Fair Work Act 2009 (FW Act) seeking a stop bullying order. Ms Cowie is a volunteer in her capacity as an umpire (Race Boat Official) with Rowing Victoria Inc. Rowing Victoria is an incorporated association established to be the peak body of rowing in Victoria.

[2] Ms Cowie has sought that orders be made in relation to the alleged conduct of both the Chairperson and Chief Executive Officer of Rowing Victoria. There are a number of grounds relied upon by Ms Cowie, however, many of these arise from how the officers handled a dispute involving herself and the coach of a team participating in a rowing regatta where Ms Cowie was officiating. That dispute, and some related matters, led to a “hearing” being conducted by a review Tribunal established under the rules governing rowing in Australia (the Rowing Tribunal).

[3] In response to the application, Rowing Victoria has raised issues concerning the Commission’s jurisdiction to deal with the application – given the nature of the association, in addition to its denial of the allegations. Constructively, all parties have at various times participated in comprehensive conciliation processes convened by the Commission on a without prejudice basis. At other times, the parties have sought, by agreement, that this application be held in abeyance pending developments associated with the Rowing Tribunal hearing and other internal complaint processes.

[4] This was appropriate given the focus of this application and the desire by all parties to facilitate Ms Cowie’s active return to a sport in which she has been a committed participant and volunteer official over many years.

[5] Ultimately, due in large measure to Ms Cowie’s concerns about the conduct and outcome of the Rowing Tribunal process, and the alleged conduct of Rowing Victoria and its officials in that particular context, this matter has not been resolved. Ms Cowie now seeks to press this application and it has become necessary to deal with the jurisdictional objection raised by Rowing Victoria.

[6] No party sought that a hearing be conducted in relation to the jurisdictional issue and I have dealt with that matter based upon the comprehensive sworn evidence and submissions filed by the parties.

2. The jurisdictional issue

[7] The anti-bullying provisions are contained in Part 6-4B of the FW Act. Section 789FC provides as follows:

“789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[8] The term “worker” is defined in s.789FC of the FW Act and this indicates that “worker” has the same meaning as in the Work Health and Safety Act 2011 (WHS Act), but does not include a member of the Defence Force. In general terms, the WHS Act states that a worker is a person who carries out work in any capacity for a person conducting a business or undertaking, including any of the following:

● an employee;
● a contractor or subcontractor;
● an employee of a contractor or subcontractor;
● an employee of a labour hire company who has been assigned to work in the person’s business or undertaking;
● an outworker;
● an apprentice or trainee;
● a student gaining work experience; or
● a volunteer—except a person volunteering with a wholly ‘volunteer association’ with no employees. 1

[9] There is no contest that Ms Cowie was a worker at the relevant times.

[10] Section 789FD of the FW Act defines bullying conduct as follows:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”

[11] Rowing Victoria contends that it is not a constitutionally-covered business within the meaning of the FW Act. It further contends that unless the “workplace” concerned is conducted by a constitutionally-covered business, there can be no basis for this application to be made.

[12] Ms Cowie contends that Rowing Victoria is a trading corporation due to the nature of its activities and is accordingly, a constitutionally-covered business. In the alternative, Ms Cowie contends that the Commission has the power to deal with this application as a result of Victoria’s referral of industrial matters to the Commonwealth and the national system nature of the FW Act.

3. The Evidence and submissions before the Commission

3.1 Rowing Victoria Inc.

[13] Rowing Victoria contends that the Commission does not have the jurisdiction to determine this matter as it:

“(a) does not engage in trading activities such as to render it a constitutional corporation as defined in s.51(xx) of the Constitution; and
(b) is not a constitutionally covered business for the purposes of s.789FD(3) in Part 6-4B of the FW Act.” 2

[14] In support of that position, Rowing Victoria submits that it is not a trading corporation because its revenue cannot be appropriately described as deriving from trading activities. In particular:

● The revenue total of $381,855 derived from “Regatta Income” and “Rowing Victoria managed events” is not commercial in character and therefore should not be considered income derived from trading activities. Alternatively, if the Commission is of the view that these do form trading activities, it contends that Rowing Victoria acts an intermediary that collects and holds the majority of its regatta income ($144,445) for the “convenience of its affiliates” and this should not be considered “substantial” as it is then passed onto the relevant affiliate and, in any event, Rowing Victoria could arrange for it to be paid directly to the affiliate;
● The revenue of $250,674 generated from “affiliation fees” enables Rowing Victoria to provide services to its members for their sole benefit rather than for it to generate a profit and therefore does not equate to an activity of a commercial nature and should not be classified as trading activities; and
● The same can also be said of the income it derives from government grants, dividends and interest from its investments, fundraising, sponsorship and team fees, fines and amounts payable by membership towards insurance premiums.

[15] Rowing Victoria contends that the only revenue that could be considered to be generated by trading activities is that received from the coaching courses it offers and by sales from its online shop. This revenue represents approximately 5% of Rowing Victoria’s total revenue, which it submits is “so insignificant as to be peripheral”, and the fact that it may have engaged in “some trading activity” does not automatically render it a trading corporation. Rowing Victoria further contends that from the beginning of the 2016/17 financial year, fees paid for the coaching courses will be paid directly to Rowing Australia.

[16] In terms of the approach to be adopted to this aspect, Rowing Victoria relies upon various authorities 3 to the effect that the extent of trading activities might be assessed either by reference to their substantial dollar value or to their relative value to the organisation. In that regard, it noted that in one case concerning sporting clubs, bar trading ranging between 19% and 63% of revenue did not lead the Federal Court to conclude that they were trading corporations.4

[17] Rowing Victoria also relies upon the fact that it is a not for profit association, is a sporting association exempt from paying income tax, and exists for the purposes of promoting, encouraging, managing and controlling the sport of rowing in Victoria.

[18] Rowing Victoria further contends that the referral of industrial matters by the State of Victoria is not relevant to the present matter.

[19] Rowing Victoria relies upon two affidavits of Mr Nick Gall, its Chief Executive Officer.

3.2 Ms Cowie

[20] Ms Cowie contends that:

● The concept of trading activities must be given its full context and be generously, rather than strictly, construed;
● The amount of activities conducted by Rowing Victoria that should be considered to be trading activities exceeds the level found by the courts in other matters to be sufficient to impact upon the characterisation of the relevant body;
● Many of the activities of Rowing Victoria are business activities carried on with a view to earning revenue and these are trading activities;
● It does not matter that the objects of the association are not directed to making a profit or that not all events and activities generate a profit or surplus; and
● Sporting bodies can be, and are, trading corporations.

[21] In relation to the activities of Rowing Victoria, Ms Cowie contends that:

● Affiliation fees, regatta income, Rowing Victoria managed events, Government funding, income from shop sales, training and other services, interest and dividends should all be included as arising from trading activities;
● Affiliation fees received by Rowing Victoria are simple general revenue and are indistinguishable from other funds which are used to advance the objects of the organisation;
● Seat fees (paid to participate in a regatta) are set on a commercial basis and the full (gross) amount of money received, rather than the net amount after expenses or contributions remitted to others, should be included for present purposes;
● Rowing Victoria conducts regattas and establishes the annual program of regattas following the expressions of interest from affiliated clubs;
● Some regattas are conducted by Rowing Victoria at venues where admission fees (entry, program and/or parking) are charged;
● Events are run with the purpose of generating funds to further Rowing Victoria’s objects;
● Services are provided by Rowing Victoria and these are not provided gratuitously, rather fees are charged;
● Government funding should be classed as trading activities if it involves an obligation to provide public services; and
● Even if net amounts of income (after expenses) is considered, the amount of relevant trading activities is substantial and such that Rowing Victoria could not easily forgo this income.

[22] Ms Cowie further contends, in effect, that as a result of the referral of industrial matters by the State of Victoria, the broader definition of national system parties in s.14, as extended by ss.30C. 30D and 30E of the FW Act, applies to include all non-constitutionally-covered employers in that State.

[23] Ms Cowie also provided an affidavit going to her understanding of the operations and activities of Rowing Victoria. This evidence also included reference to Annual Reports and other publicly available information.

4. Does the Commission have the jurisdiction to deal with this application?

4.1 What is a constitutionally-covered business for present purposes?

[24] For reasons that will become clear, it is appropriate to initially deal with the contention as to whether Rowing Victoria is a constitutionally-covered business.

[25] The initial focus of the statutory definition of workplace bullying is the workplace where the applicant is at work when the alleged unreasonable conduct takes place. That is, the conduct must take place whilst the applicant worker is at work in a constitutionally-covered business. Section 789FD(3) of the FW Act requires the Commission to consider the nature, or in some cases – the location, of the legal person conducting the business or undertaking (PCBU).

[26] In this case, the workplace involves the activities of Rowing Victoria. There is no suggestion of any other (corporate) entity employing in, or more importantly conducting the “business” of, Rowing Victoria.

[27] The workplace in this matter is not located in a Territory⁵ and there is no suggestion that it is conducted by the Commonwealth or a Commonwealth authority. Assuming for present purposes that the workplace is a PCBU within the meaning of the WHS Act, in order to be a constitutionally-covered business and fall within the scope of s.789FD, it must be conducted by a constitutional corporation.

[28] The term “constitutional corporation” is defined in s.12 of the FW Act in the following terms:

“constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.”

[29] The Constitution, in effect, defines “constitutional corporations” as follows:

“Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.”⁶

[30] The suggestion is that Rowing Victoria is a trading corporation, and of the alternatives, this is the only potentially relevant concept. It is an association incorporated under the Associations Incorporation Reform Act 2012 (Vic) and accordingly has a corporate status.

[31] The approach of the Courts and Tribunals to the meaning of a trading corporation has been conveniently summarised by Steytler P in Aboriginal Legal Service (WA) Inc v Lawrence (No 2.)⁷ (Lawrence). Having reviewed the developments in the approach of the High Court to arrive at what might be described as the activities test, His Honour found as follows:

“68 The more relevant (for present purposes) principles that might be drawn from these and other cases are as follows:

(1) A corporation may be a trading corporation even though trading is not its predominant activity: Adamson (239); State Superannuation Board (303 - 304); Tasmanian Dam case (156, 240, 293); Quickenden [49] - [51], [101]; Hardeman [18].

(2) However, trading must be a substantial and not merely a peripheral activity: Adamson (208, 234, 239); State Superannuation Board (303 - 304); Hughes v Western Australian Cricket Association Inc [1986] FCA 357; (1986) 19 FCR 10, 20; Fencott (622); Tasmanian Dam case (156, 240, 293); Mid Density (584); Hardeman [22].

(3) In this context, 'trading' is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services: Ku-ring-gai (139, 159 - 160); Adamson (235); Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169, 184 - 185, 203; Bevanere Pty Ltd v Lubidineuse [1985] FCA 134; (1985) 7 FCR 325, 330; Quickenden [101].

(4) The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant: St George County Council (539, 563, 569); Ku-ring-gai (140, 167); Adamson (219); E (343, 345); Pellow [28].

(5) The ends which a corporation seeks to serve by trading are irrelevant to its description: St George County Council (543, 569); Ku-ring-gai (160); State Superannuation Board (304 - 306); E (343). Consequently, the fact that the trading activities are conducted is 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], [101]; 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].” (footnotes and full references omitted)

[32] This summary was adopted by the Full Court of the Federal Court in Bankstown Handicapped Children’s Centre v Hillman 8 (Bankstown).

[33] In an earlier case of E v Australian Red Cross Society⁹, Wilcox J considered whether the Australian Red Cross Society and the Royal Prince Alfred Hospital were trading corporations. The Society supplied blood and blood products, generally free of charge to the community, but received substantial government funding. The Court, in considering the more than $44m received in respect of its blood transfusion services, said:

“These were, of course, substantial sums. They were earned only because the respondents are prepared to carry on blood transfusion services at a scale, in terms of labour and resources, greater than that of many organisations which are undoubtedly 'trading corporations'. But I do not think that it is appropriate to describe the gratuitous provision of a public welfare service, substantially at government expense, as the conduct of a 'trade'. It is pertinent to recall the words of Stephen J in St George County Council: 'It is the acts of buying and selling that are at the very heart of trade', and also to remember the distinction he made in respect of the distribution of electricity free of charge. In relation to the supply of blood, it seems to me that the first and second respondents do not engage in trading activities. They engage in a major public welfare activity pursuant to agreements with the Commonwealth and the various State governments under which they will be reimbursed most of their costs.”¹⁰

[34] I note that when considering the position of the Royal Prince Alfred Hospital, Wilcox J found that the scale of the hospital's trading activities were “substantial enough” to require that the hospital should be regarded as a trading corporation.¹¹ The details of this aspect are explained in more detail in a decision outlined below.

[35] In Bankstown, the Full Court was dealing with an incorporated association that received most of its funding from government. The Court posed the question in the following manner:

“51 Many activities and services which have historically been provided mainly or exclusively by government are now carried on by companies which undertake those activities or provide those services with the objective of making a profit. Examples are legion and included prison services, electricity generation and distribution, potable water collection or production and distribution and the construction and maintenance of roadways. There can be little doubt that, at least in the ordinary course, companies which undertake those activities or provide those services can be characterised as trading corporations. Does the fact that a corporation likewise provides such services but on effectively a cost recovery basis only, render it inappropriate to characterise that corporation as a trading corporation?”

[36] The Full Court focused in particular on the funding and services provided in relation to the ‘Out-of-Home Care’ (OOHC) programs under which the Centre was paid for services provided to the relevant government agency (DOCS) on a fee for service basis. It concluded:

“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 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.”

[37] In terms of the assessment of trading activities as substantial and not merely peripheral, the approaches do vary to a degree.

[38] In Bankstown, the Full Court observed that “there is no bright line that determines what proportion of trading activities is “substantial””.¹² In the more recent decision of the Federal Court in United Firefighters Union of Australia v Country Fire Authority,¹³ (UFU v CFA) the Full Court adopted the approach to the characterisation of trading activities as summarised in Lawrence and considered the revenue producing activities in order to assess the cumulative impact of those activities upon that assessment. In terms of the cumulative assessment, Murphy J at first instance in that matter 14 observed:

“[92] The term “substantial” is imprecise but it at least encompasses trading amounts that are “not so small as to be trivial”: Quickenden at [51]. In that case the majority treated substantial and nontrivial as synonymous. In the present case the CFA contends that their trading activities are peripheral, insignificant or otherwise incidental. These terms are drawn from the various cases: see for “peripheral” Adamson at 208 per Barwick CJ; State Superannuation Board at 304 per Mason, Murphy and Deane JJ; for “incidental” Adamson at 234 per Mason J; for “significant” see Adamson at 233 per Mason J; E v Australian Red Cross Society and Ors [1991] FCA 20; (1991) 27 FCR 310 (“E v Red Cross”) at 345 per Wilcox J; Quickenden at [47] per Black CJ and French J.

[93] The ordinary meaning of these words is straightforward. The Shorter Oxford Dictionary defines them to include the following:

(a) “peripheral” means marginal, superficial, of minor importance, not essential or relevant to but subordinate to;

(b) “insignificant” means lacking significance, meaningless, devoid of weight or force, ineffective, ineffectual, of no importance, trivial, trifling, or contemptible; and

(c) “incidental” means occurring as something casual or of secondary importance; not directly relevant to; following up on as a subordinate circumstance.”

[39] Having found that six of the County Fire Authority’s (CFA’s) non-fire fighting activities were trading activities, Murphy J found:

“96 The scope of these activities is broad. While they are secondary to the CFA’s primary purpose I would not describe any of them as insignificant, incidental, trivial or unimportant. For example, the road accident rescue service is a specialised emergency service that the CFA has agreed to provide in country areas, which has required special training of CFA employees beyond the usual fire training, and which the CFA recognises as an important part of the range of services it provides. The CFA has no statutory obligation to provide this service and it does so at a cost to road users and the State through the Traffic Accident Commission. I would not describe the provision of this service as incidental to the CFA’s activities nor as a fortuitous or casual occurrence of subordinate importance. Nor should its provision, viewed in the context of all of its services, be described as trifling, ineffective, superficial or marginal.

97 For essentially the same reasons the provision of fire equipment maintenance services, consultancy on matters related to fire safety, the provision of advice related to the storage of dangerous goods and the sale of goods related to fire safety should not be seen as insignificant, incidental, trivial or unimportant activities considered against the range of services the CFA provides. I infer from the evidence that these activities are seen as important by the CFA, although they are not its central or predominant focus.

98 Nor do I consider that the revenue from these trading activities is incidental in the sense of arising fortuitously or as a result of some other activity. The income is earned deliberately by the CFA from these six specific sources and on the basis that the CFA have special expertise or products of value which they provide in exchange. Taken together the income from these activities is substantial.

99 While the quantum of income from the CFA’s trading activities relative to its non trading activities is small, I am disinclined to treat almost $13 million of revenue as minimal, trivial or insignificant. It should be seen for what it is, a significant volume of trading revenue albeit dwarfed by the money received from non-trading sources. The CFA put on no cogent evidence that $12.93 million was insignificant to its operations, and no evidence was given that it could be easily foregone by the organisation. Put another way, it is likely that the CFA would be impaired in its capacity to provide services in road accident rescue, fire equipment maintenance, fire safety consultancy or sale of fire safety related goods, which it regards as important in the range of services offered, if it was not able to charge fees for doing so.

100 Although the $12.93 million of trading income is plainly a substantial amount in absolute terms, it is only a small percentage relative to the CFA’s total income. Even so, I do not consider it is trivial or minimal in relative terms.

101 In E v Red Cross the Australian Red Cross Society was one of the respondents. Wilcox J held that its supply of blood and blood products was the gratuitous provision of a public welfare service, substantially at government expense, and was not a trading activity. The Red Cross received a total of $44.9 million from the government in respect of its non-trading blood supply services, and about $2 million from trading activities. Another respondent, a major hospital, made approximately $18 million from trading activities and, in the words of Wilcox J, that sum was dwarfed by a State government subsidy of $112 million. His Honour concluded that the disparity between the money earned through trading and the money received by way of government subsidy was unimportant explaining at 345:

Trading activities yielding some $18 million per year can only be described as substantial. It seems to me that the scale of the hospital’s trading activities in 1984-1985 was such that it should be regarded as then being a trading corporation.

See also United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 (“UFU v MFB”) at 354 to 356 per Marshall J.

102 The CFA contends that both E v Red Cross and UFU v MFB were wrongly decided in that they incorrectly applied an absolute test. While I consider that the CFA’s trading revenue is plainly significant if considered in absolute terms, I do not approach the issue that way. Considering its trading revenue relative to its non-trading activities, the question is not without difficulty and is one of fact and degree. In my opinion the CFA undertakes sufficient trading for it to be seen as “not insubstantial”, not trivial, insignificant, marginal, minor or incidental, and I find that it is a trading corporation.”

[40] By contrast, in the earlier approach adopted in Hughes, Toohey J observed that “A trading activity may represent a significant part of a club’s income but be relatively insignificant in an overall consideration of the club’s activities”. 15

[41] Further, the provision of services, largely or wholly, free of charge, and whether they are provided for altruistic purposes not shared by commercial enterprises, are also relevant, but not determinative, considerations.¹⁶ Sporting bodies may be trading corporations, depending upon their activities and circumstances. 17

4.2 The general nature and activities of Rowing Victoria Inc.

[42] It is appropriate to set the context for the determination of this issue. I will deal with the detail and characterisation of the various activities in due course. Based upon the evidence before the Commission, I find that the general nature of Rowing Victoria and its activities are as follows:

● Rowing Victoria is the peak body for the management of the sport of rowing in Victoria. Its present activities remain consistent with its stated objects; namely:

“4. Objects
The objects of RV are to promote, encourage, manage and control the sport of rowing in Victoria, and without limiting the generality of the foregoing:

(a) Encourage participation in rowing at all levels;

(b) Promote the interests of member clubs and schools;

(c) Encourage and promote high standards of rowing;

(d) Establish rules for the conduct of rowing within Victoria;

(d) Arrange and promote Victorian, interstate, national and international rowing regattas;

(e) Manage selection of crews to represent Victoria in interstate and national regattas;

(f) Assist in settling disputes between or among members, between members and RV and between registered members in so far as they utilise the RV member protection policy contained in the rules;

(g) Impose penalties for any infringement of provisions of this constitution or of policies or procedures determined by RV for the conduct of rowing.” 18

● Rowing Victoria became an incorporated entity in 1987. It is a membership association and its affairs are managed by a Board comprising six Directors who must be a registered member of a club or school which is a member of Rowing Victoria. 19 The Board has the power20 to appoint a CEO and other members of staff, and it has done so.

●In the 2015/16 financial year, Rowing Victoria generated a total of $900,813 in revenue from its operating activities. Having regard to its Statement of Profit and Loss, Rowing Victoria recorded a loss of $31,374 last financial year.

●Rowing Victoria has approximately 92 affiliated clubs, schools and associations and 7,000 members across junior, school, senior, masters and recreational rowers.

●Two of the primary functions of Rowing Victoria are the organisation and management of regattas, which are generally hosted by its affiliates, and the staging of its own managed competitions. For these events, Rowing Victoria's responsibilities include preparing a regatta or competition program, organising lane draws, formulating a schedule for progression into the finals, promoting the relevant event on its website and arranging the necessary authorisation with regulatory bodies such as Parks Victoria and/or Maritime Victoria, which are responsible for approving river or lake closures.

●Although it is a peak body for rowing, affiliated clubs are able to, and do, organise rowing regattas without Rowing Victoria’s involvement or consent.

●Rowing Victoria's other functions include club development and education and it routinely provides advice and other forms of non-financial assistance to affiliate clubs regarding their administrative structure and engagement of volunteers.

●Rowing Victoria also offers a range of services to clubs and individual members associated with the sport of rowing, as a benefit of affiliation or membership and is provided at no additional cost. These services include: