Each of the following is a constitutionally-covered entity:
The Fair Work Act defines constitutional corporations as ‘a corporation to which paragraph 51(xx) of the Constitution applies’.
The Australian Constitution defines constitutional corporations as ‘Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.
This definition has two limbs that are ‘comprehensive alternatives’. This means that constitutional corporations are either ‘foreign corporations’ or ‘trading or financial corporations formed within the limits of the Commonwealth’. Therefore, a foreign corporation does not need to be formed within the limits of the Commonwealth or be a trading or financial corporation to be classified as a constitutional corporation.
Many incorporated employers in the private sector who sell goods or provide services for a fee will easily satisfy the criteria of a trading or financial corporation.
The issue of whether an employer is a constitutional corporation usually arises where the employer is a not-for-profit organisation in industries such as health, education, local government and community services.
A foreign corporation is a corporation that has been formed outside of Australia.
A corporation which is formed outside of Australia, which employs an employee to work in its business in Australia, is likely to be a constitutional corporation and therefore fall within the jurisdiction of the Fair Work Commission.
Trading denotes the activity of providing goods or services for reward (such as payment).
The Commission will consider the nature of a corporation with reference to its activities, rather than the purpose for which it was formed.
A corporation will be a trading corporation if the trading engaged in is ‘a sufficiently significant proportion of its overall activities’.
It does not matter if trading activities are a corporation’s ‘dominant’ activity or whether they are merely an ‘incidental’ activity, or entered into in the course of pursuing other activities.
A corporation can be a trading corporation even if it was not originally formed to trade.
One factor that may be considered is the commercial nature of the activity. When considering the commercial nature of a corporation’s activity, the Commission will look at a number of factors, including:
A financial corporation is one ‘which borrows and lends or otherwise deals in finance as its principal or characteristic activity...’
The approach taken in deciding whether the activities of a corporation are such that the corporation should be considered to be a financial corporation is the same as the approach taken in deciding whether a corporation is a trading corporation.
The Commonwealth of Australia – the official title of the Australian nation, established when the six states representing the 6 British colonies joined together at Federation in 1901.
A Commonwealth employee is a person who holds an office or appointment in the Australian Public Service, or holds an administrative office, or is employed by a public authority of the Commonwealth.
A Commonwealth authority is a statutory authority, created by legislation, that is a separate legal entity from the Commonwealth and which has the power to hold money on its own account.
There are approximately 150 Commonwealth statutory authorities.
Examples of Commonwealth statutory authorities include:
There is a Register of Australian Government Organisations on the Department of Finance's website.
The term body corporate covers any artificial legal entity having a separate legal personality. These entities have perpetual succession; they also have the power to act, hold property, enter into legal contracts and sue and be sued in their own name.
Perpetual succession is the characteristic of a company which makes it a continuing entity in law with its own identity regardless of changes in its membership.
The types of entities falling into these categories are broad, and include:
Included in the definition of body corporate are entities created by:
If an entity is not established under an Act of Parliament, or under a statutory procedure of registration, such as the Corporations Law or an Incorporation Act, it is generally not a body corporate.
Each state and territory has legislation that allows various kinds of non-profit bodies to become bodies corporate. Bodies incorporated under these Acts are normally community, cultural, educational or charitable organisations. Bodies of this nature that are incorporated in the Northern Territory or the Australian Capital Territory are included in the general protections provisions even if they are not a trading corporation or a financial corporation.
An organisation is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth).
Registered organisations include unions and employer organisations.
 Fair Work Act s.338(2).
 Fair Work Act s.12.
 Australian Constitution s.51(xx).
 A Stewart, Stewart’s Guide to Employment Law (4th ed, 2013) 36.
 ibid., 34.
 Gardner v Milka-Ware International Ltd  FWA 1589 (unreported, Gooley C, 25 February 2010) .
 ibid., 233.
 ibid., 239.
 University of Western Australia v National Tertiary Education Industry Union (unreported, AIRC, O’Connor C, 20 June 1997) Print P1962 3; citing R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (1979) 143 CLR 190, 209.
 University of Western Australia v National Tertiary Education Industry Union (unreported, AIRC, O’Connor C, 20 June 1997) Print P1962 3; citing The Australian Beauty Trades Suppliers Ltd (1991) 29 FCR 68, 72.
 Butterworths Australian Legal Dictionary, 1997, 224.
 Butterworths Australian Legal Dictionary, 1997, 870.
 Fair Work Act s.12.