Determination of a preliminary issue in a prosecution under s 32 of the Work Health and Safety Act 2012 (WHS Act) - The defendant is a member of a country football club (Club) who moved a gas powered deep-fryer at the Club's premises and allegedly failed to cap the gas hose assembly - There was an explosion some weeks later when the deep fryer was being used in its new location - The parties joined in asking for the determination of a preliminary issue of whether the Club, which the defendant was a member of, was a person conducting a business or undertaking within the meaning of the WHS Act - HELD: 1. The contract between the Club and its players and coaches is not a contract of employment and there was no written contract of employment between any person and the Club, so all the circumstances of the relationship can be weighed to decide whether the Club engaged any person under a contract of employment - 2. The key indicia show that the Club did not engage any person under a contract of employment - 3. Any contract, engagement or payment made by the Club during the 2022 football season ceased on 20 August 2022 and the incident the subject of the prosecution occurred in September 2022, and the playing and coaching contracts were expressed to come to an end at the end of the season so, if there was a contract of employment between the Club and its players or coaches, the contract had expired prior to the date on which the alleged offence occurred.

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165

Re McDonald [2016] FWC 300

Narich Pty Ltd v Commissioner of Pay‑roll Tax [1983] 2 NSWLR 597

Australian Mutual Provident Society v Chaplin (1978) UKPC 7; [1978] UKPC 7; (1978) 52 ALJR 407

ZG Operations Australia Pty Ltd & Anor v Jamsek [2022] HCA 2; (2022) 275 CLR 254

Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; (2020) 279 FCR 114

Attorney-General for NSW v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237

Amalgamated Society of Carpenters and Joiners v Haberfield Pty Ltd [1907] HCA 37; (1907) 5 CLR 33

Emmens v Elderton [1853] EngR 884; (1853) 13 CB 495

Andreevski v Western Institute Student Union Inc (1994) 58 IR 195

Vladicka v Board of School Trustees of Calgary School District No 19 (1974) 45 DLR (3d) 442

EFEX Group Pty Ltd v Bennett [2023] FCA 508

1. On 15 September 2022 the defendant, Quinn McKay, a gas fitter who holds a restricted gas fitting registration and a volunteer member of the Hammocks Watchman Eagles Football Club Inc. ("Club" or "HWEFC"), disconnected a deep-fryer to enable it to be moved. Mr Mackay was asked to disconnect the deep-fryer by another volunteer member of the Club.
2. The prosecution alleges that Mr Mackay failed to cap the gas hose assembly after disconnecting the deep-fryer. Eight weeks later, there was an explosion whilst the deep fryer was being used by people who had hired the Club premises for a social event. The prosecution alleges that the explosion was caused by the escape of gas from the deep-fryer's uncapped hose assembly. Mr Mackay is being prosecuted pursuant to s 32 of the Work Health and Safety Act 2012 (WHS Act) for a failure to comply with a health and safety duty under s 28 of the WHS Act.
3. The parties disagree about whether the Club is a "person conducting a business or undertaking" (PCBU) within the meaning of s 5 of the WHS Act. Under s 5(7), if the Club is a volunteer association, it is not a PCBU and is immune from prosecution under s 5(7) of the WHS Act. Section 5 provides:

5 - Meaning of person conducting a business or undertaking

(1) For the purposes of this Act, a person conducts a business or undertaking -

(a) whether the person conducts the business or undertaking alone or with others; and

(b) whether or not the business or undertaking is conducted for profit or gain.

(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5) An elected member of a local authority does not in that capacity conduct a business or undertaking.

(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8) In this section -

volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as -

(a) an employee; or

(b) a contractor or subcontractor; or

(c) an employee of a contractor or subcontractor; or

(d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or

(e) an outworker; or

(f) an apprentice or trainee; or

(g) a student gaining work experience; or

(h) a volunteer; or

(i) a person of a prescribed class.

1. The informant contends that the Club is not a volunteer association within the meaning of the WHS Act because it employs persons, and did employ persons on 15 September 2022. The informant points to contracts under which the coach of the A-grade team and some A-grade team players receive payment from the Club. The informant also maintains that the Club employs canteen managers who are paid to run the canteen on match days.
2. Given that the Club must be a PCBU for the prosecution to succeed, the parties jointly seek a preliminary ruling on that issue. A statement of Agreed Facts was admitted into evidence and the preliminary issue was argued on 25 June 2025.

1. The background that follows is taken from Mr Mackay's written outline of submissions. Apart from the first part of para. 19, and one word in para. 15, which have both been removed, the descriptions are not in dispute:

8. HWEFC is a country Australian Rules Football club which competes in and is affiliated with the Adelaide Plains Football League. The Adelaide Plains Football League is an affiliated football league of the South Australian Community Football League.

9. HWEFC fields two senior men's sides (an A Grade and a B Grade) and junior football sides.

10. HWEFC is administered by a committee elected by way of Annual General Meeting. The elected committee includes a President, a senior and junior Vice-President, a Secretary and a Treasurer.

11. In order to participate and compete in the Adelaide Plains Football League the Club elects, at its Annual General Meeting, an A Grade Coach. The Club also appoints coaches for the other teams which compete in the Adelaide Plains Football League.

12. The coaches are paid various amounts by the HWEFC in acknowledgement of the time taken in which to Coach the Club.

13. Players register to play with the Club by their own volition. Some players enter into documents described as "playing contracts" whereby they are paid an amount of money for each A Grade game they play. There is no corresponding obligation for any player to make themselves available for selection or for the Club to select players with a contract in the A Grade when available.

14. Payment is effected by players being paid immediately following any match in which they are selected and played.

15. The... majority of football players at the Club do not have a playing contract.

16. The playing contracts are necessary for the Club to comply with the South Australian National Football League Community Football Rules & Regulations (SACFL Rules & Regulations) which require affiliated leagues (such as the Adelaide Plains Football League) to comply with a "Salary Cap" as set out in the SACFL Rules & Regulations.

17. The SACFL Rules & Regulations dated December 2021 describe the purpose of the Salary Cap as being:

To encourage clubs to develop and retain local players, to minimise player movement and reduce player payments, whilst maintaining a healthy community football club. Any recruiting required should be conducted in accordance with and within the spirit and intent of these regulations and the best interests of Australian Football.[1]

18. Each contract is expressed to conclude at the conclusion of the relevant football season.

19. ... Junior boundary umpires receive a pie and a soft drink in acknowledgement of their time commitment.

1. The Hummocks Watchman Eagles Football Club Inc (HWEFC) is an affiliated club of the Adelaide Plains Football League (APFL). 2. The APFL is an affiliated league of the South Australian Community Football League which is in turn administered by the South Australian National Football League (SANFL). 3. The HWEFC is an incorporated association pursuant to the Associations Incorporation Act 1985 (SA) (ABN records attached at 1). 4. A copy of the HWEFC Constitution and Rules is attached at 2. 5. HWEFC is funded primarily through sponsorship, bar and canteen sales, entrance (gate) fees and fundraising initiatives. 6. The SANFL Community Football League publishes, from time to time, Rules and Regulations (see attached at 3). The Rules and Regulations permit but do not oblige Affiliated Clubs of Affiliated Leagues players and coaches to be provided with Remuneration, as defined in the Rules and Regulations, subject to maximum limits which are considered "Football Payments". 7. A "Football Payment" is the value of all or any part of any Remuneration paid or provided to a Player in a Financial Year under any contract, agreement, arrangement or understanding between an Affiliated Club or any person or entity directly or indirectly associated with an Affiliated Club (including without limitation any sponsor, supporter or supporter group of that Affiliated Club) and a Player which relates to or is in consideration for the playing of football or for the provision of support services by the Player to the Club. 8. Pursuant to Regulation 31:

1. The senior coach shall not receive more than $20,000 of Remuneration for coaching services of the Senior team. 2. Any Senior Coach that receives payment for coaching services must enter into a Contract with the Affiliated League Club 3. Maximum Remuneration to be paid to players per match according to below schedule:

2016 financial year

"Total Player Payment"

$4,000 per match (max limit for all paid players)

2017 financial year onwards

"Total Player Payment"

$3,500 per match (max limit for all paid players)

2021 financial year onwards

"Total Player Payment"

$2,500 per match (max limit for all paid players)

1. HWEFC coach
   1. A standard coaching contract used by the HWEFC (blank) including terms and conditions, is attached at 4.
   2. HWEFC makes payments to its coaches for the A Grade, B Grade, Senior Colts and Junior Colts teams.
   3. The amount to be paid to each coach is determined at the Annual General Meeting. For the 2021, 2022, 2023 and 2024 seasons, coaching payments were as follows:

As negotiated each year (see agreed facts below at 9.e - 9i

1. The appointment of coaches is governed by clause 22 of the HWEFC Constitution (attached at 2).
2. For the seasons 2021 - 2023, Jared Wilson was the coach of the A Grade team.
3. The standard coaching contract (completed) for HWEFC coach Jared Wilson for the 2023 season is attached at 5; 2022 season is attached at 6 and for the 2021 season attached at 7.
4. In 2021, Jared Wilson received $12,000 for the season, receiving "1/2 yearly and at end season".
5. In 2022, Jared Wilson received $12,000 for the season, receiving $6,000 at the end of June and a further $6,000 at the end of the season.
6. In 2023, Jared Wilson received $15,000 for the season, receiving "1/2 half way" and "1/2 End Season".
7. A statement of supplier was not submitted by the HWEFC to the Australian Taxation Office (ATO) in relation to the payments made to Mr Wilson.
8. Superannuation is not paid to the coaches receiving the payments.

1. Some HWEFC players are paid a match fee. 2. Generally speaking, less than half of the senior players of the A Grade team receive player payments for matches. 3. Players are selected to play in the A Grade Team based on their ability and form. 4. Players are only paid a match fee where they are selected to play in the A Grade Team. In the event that a player is selected in the B Grade Team they are not paid a match fee. 5. The amount paid to each player varies, according to the player. Which players are paid and the rate of pay per match is determined by the Football Manager for HWEFC. 6. The player receives the payment in cash, following each game played. 7. There are no milestone payments, after match rewards or end of season rewards paid to any of the players. 8. Superannuation is not paid to any of the players receiving the payments. 9. The players that receive match payments sign/play under a playing contract. Those that do not receive match payments do not sign/play under a playing contract. 10. A copy of a SANFL Community Football Standard playing contract including terms and conditions (blank) is attached at 8. 11. The following spreadsheet attached at 9 indicates player match payments for the years 2021 - 2024.

2021 season

1. In the 2021 season, 11 players received match payments ranging from $69 to $324 per match, not including travel expenses which are paid separately according to distance travelled per match (memorandum of payments attached at 10).

2. An example of a "standard playing contract" for the 2021 season of a player contracted to HWEFC is attached at 11, including terms and conditions and statutory declaration of player.

3. All 2021 contracts between the HWEFC and players were valid until the end of the HWEFC season.

4. The club statement of football payments for the 2021 year is attached at 12.

5. According to the Profit and Loss statement for the October 2020 - September 2021 period, $35,750.00 was paid in "player payment and incentives"

6. The 2021 HWEFC season commenced on 17 April 2021.

7. The 2021 HWEFC season concluded on 14 August 2021.

8. In the 2021 HWEFC season HWEFC played eight (8) home games.

2022 season

1. In the 2022 season, 13 players received match payments ranging from $12 to $380 per match, not including travel expenses which are paid separately according to distance travelled per match (memorandum of payments attached at 13)

2. An example of a "standard playing contract" for the 2022 season of a player contracted to HWEFC is attached at 14, including terms and conditions and statutory declaration of player.

3. All 2022 contracts between the HWEFC and players were valid until the end of the HWEFC season.

4. The club statement of football payments for the 2022 year is attached at 15.

5. According to the Profit and Loss statement for the October 2021 - September 2022 period, $54,700 was paid in "player payments and incentives".

6. The 2022 HWEFC season commenced on 23 April 2022.

7. The 2022 HWEFC season concluded on 20 August 2022.

8. In the 2022 HWEFC Season HWEFC played eight (8) home games.

2023 season

1. In the 2023 season, 20 players received match payments ranging from $6 to $382 per match, not including travel expenses which are paid separately according to distance travelled per match (memorandum of payments attached at 16)

2. An example of a "standard playing contract" for the 2023 season of a player contracted to HWEFC is attached at 17, including terms and conditions and statutory declaration of player.

3. All 2023 contracts between the HWEFC and players were valid until the end of the HWEFC season

4. The club statement of football payments for the 2023 year is attached at 18.

5. According to the Profit and Loss statement for the October 2022 - September 2023 period: $69,120 was paid in "player payment and incentives".

2024 season

1. In the 2024 season, 16 players received match payments ranging from $21 to $300 per match, not including travel expenses which are calculated separately according to distance travelled per match (memorandum of payments attached at 19).

2. According to the Profit and Loss statement for the October 2023 - September 2024 period, $64,210.00 was paid in "player payment and incentives".

3. Contracts and Player Payments may be audited by the SANFL to monitor compliance with the Rules and Regulations

4. As voted in the yearly Annual General Meeting (AGM) held on 31 October each year, some other roles within the HWEFC receive payment for their role in the club (see for example the 2021 AGM Minutes of Meeting attached at 20). The below table sets out the payments agreed upon for the following season:

2021 AGM (relevant to 2022 season), 2022 AGM (relevant to 2023 season, 2023 AGM (relevant to

2021 AGM (relevant to 2022 season), 2022 AGM (relevant to 2023 season, 2023 AGM (relevant to

2021 AGM (relevant to 2022 season), 2022 AGM (relevant to 2023 season, 2023 AGM (relevant to 2024 year)

1. HWEFC does not withhold any income tax in respect of any person or otherwise account to the Australian Taxation Office.

1. The informant referred to the amounts paid by the Club to its A Grade coach, trainer, some A Grade players and two canteen managers and submitted the payments had the character of payments made to employees. In relation to statutory declarations in which coaches and players state that their involvement with the club is a hobby or pastime and they do not rely on any payments made by the Club as personal income, the informant said the statements do not determine the true nature of the relationship.
2. The informant relied upon on the existence of written contracts with specified payment amounts which are only paid if players play. It was observed that based on a 20 week season, the $12,000 paid to the A Grade team coach equated to a payment of $600 per week. In addition to the payments, the informant submitted that the element of control was present. Players are not allowed to play or train elsewhere. There are conditions about attendance at training and games and behaviour during social events.
3. The informant submitted that its approach is supported by the High Court decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting).[2]
4. The informant maintained that the payment of $200 per match made to canteen workers goes beyond the ambit of an honorarium. It was submitted that if a match day involved 6 hours of work, the rate being paid was $33 per hour, which was said to be equivalent to a casual hourly rate for weekend work. It was submitted that the Fair Work Commission decision in Re McDonald,[3] supported the prosecution's position.
5. In dealing with the defendant's argument that the alleged offence occurred outside of the football season and outside of the period in which payments were made to players, coaches and canteen workers, the informant submitted that the Club operates on an ongoing basis. The annual general meeting at which many payments made by the club were fixed occurred in October, after the alleged offending had occurred.
6. The informant accepted that for the prosecution to succeed, it must prove that the Club has engaged a person or persons under a contract of service.

1. The defendant proceeded on the basis that it is not disputed that the Club is managed and operated by a group of volunteers working together and is conducted for a 'community purpose'. The defendant understood the issue to be whether it "employs any person to carry out work", and more particularly, whether it does so under a contract of service. It follows that the Club may engage independent contractors to perform work for the Club or otherwise remunerate people if there is no relationship of employment.
2. The defendant submitted that the concept of what is a PCBU is amorphous and can be difficult to pinpoint. Emphasis was placed on the expression "carry out work", most relevantly in s 5(8) of the WHS Act, but elsewhere in the WHS Act also.
3. The defendant relied on Personnel Contracting. He said that in the absence of an assertion that the playing and coaching contracts are a sham, their terms should be applied and a finding made they are not employment contracts. To the extent that the contracts impose terms and conditions on players, such as accepting the direction of coaches and not engaging in dangerous activities, those were said to be, at best, a neutral factor.
4. The defendant submitted the Court would err if it found an employment relationship where none was intended.

1. On the day of the alleged offence, Mr Mackay was, as a volunteer, mowing the grass on Port Wakefield Oval on a ride on lawnmower. He was a longstanding Club member, had served on the Club's management committee and had played and performed voluntary work for the club many times. Another volunteer was having trouble moving the deep fryer and sought the assistance of Mr Mackay to do so. It is not necessary to add any further detail to the agreed facts.
2. In Personnel Contracting, the High Court held that the terms of the contract between parties, rather than how the working relationship operated in practice, determined the rights and liabilities of each party. The Court referred to some earlier decisions to that effect.[4] The Court held that the "multifactorial test", which some cases found had displaced reliance on the terms of a written contract, could not be used when the terms of the relationship are comprehensively contained within a written contract.[5]
3. In ZG Operations Australia Pty Ltd & Anor v Jamsek,[6] the respondents initially worked as truck drivers under a contract of service, but were told by the corporate predecessor of the appellant that their services would only continue to be used if they purchased their trucks and entered into delivery service agreements. The appellant terminated those agreements with the respondents and their partnerships some 30 years later. The High Court found that the respondents were not employees of the appellant but were members of partnerships whose businesses delivered services to the appellant. The court rejected the approach of the appellate court below which had held that the "substance and reality" of the relationship was determinative of the outcome and the respondents were employees.[7]
4. The terminology used to describe contracts of employment, and their scope, was touched on by Gageler and Gleeson JJ in Personnel Contracting:[8]

Typically, although not universally,[9] the relationship of employment is established and maintained under a contract between the employer and the employee. Throughout the nineteenth century, a contract under which a relationship of master and servant was established was routinely referred to as a contract of service. Moving into the twentieth century, a contract under which a relationship of employer and employee was established and maintained came more commonly to be referred to as a contract of employment.[10]

The terminology remains apt so long as two things are recognised. One is that a contract under which a relationship of employment is established and maintained need not be a contract that deals solely with the subject-matter of employment: a relationship of employment can be established and maintained under a contract that has contractual purposes broader than, and contractual consequences additional to, simply establishing a relationship within which an individual performs work of the requisite genus for another person. The other is that it is the character of the relationship that is established and maintained under a contract that gives character to the contract. Expressed using other prepositional terms, a contract "of" employment is a contract "for" a relationship of employment.[11] The employment relationship is established and maintained "within" the contractual relationship, the employment relationship does not subsist simply "in" the contractual relationship.

1. The "SANFL Community Football - Standard Coaching Contract" (coaching contract) requires coaches to tick a box to acknowledge that:[12]
   • they volunteer in the football and other club activities as a hobby or pastime;
   • any services they provide to the Club are provided as a hobby or pastime; and
   • they do not rely on any payments described in the contract for their regular personal income.
2. There is also a fourth box that can be ticked if the coach has "(if applicable) submitted a 'statement by a supplier' to the Club" for tax purposes. None of the completed coaching or playing contracts in the Book of Documents have this box ticked while the first three boxes in them are all ticked.
3. The second page of the coaching contract contains the terms and conditions that apply to community football coaches. The third and final page of the coaching contract is a statutory declaration made under the Oaths Act 1936 in which the coach must depose that the terms and conditions of the coaching contract are a true and accurate record of the agreement between the club and the coach.[13] The declaration has been made in all of the completed contracts in the Book of Documents.
4. The "SANFL Community Football - Standard Playing Contract" (playing contract) is very similar in form to the coaching contract. The first page contains the same acknowledgements found in the coaching contract as set out in the three dot points above as well as the optional statement by a supplier box.[14] The second page is headed "Terms & Conditions of SANFL Community Football - Standard Playing Contract" which has some requirements. For example, players are required to attend all training sessions and team meetings and to obey all reasonable directions of the Senior Coach, President and Secretary of the Club. There are terms that players will maintain fitness for football, not engage in dangerous activities and behave appropriately at Club functions.
5. As with the coaching contract, the playing contract requires players who receive match payments to complete a statutory declaration that states that the contents of their playing contract is a true and accurate record of the agreement between them and the Club. Mr Mackay was not paid to play football for the Club so he did not have to complete, and did not complete, a playing contract.
6. The acknowledgements in the playing and coaching contracts disavow any employment relationship. If an A Grade player who is entitled to receive a match payment under his playing contract is dropped to the B Grade team, he is not entitled to any match payment. It is contrary to a contract of employment to require an employee to perform their normal work but not pay them.
7. The informant observed that the coach of the A Grade team received $12,000 in the 2022 season, an amount that is significantly more than the amount paid to any player or officer of the club. The observation is correct, but it is not appropriate to construe the relationship between the Club and the coach by reference to the quantum of the payment. The terms of the contract clearly state that the parties did not intend to create an employment relationship. Even if the nature of the relationship is looked at, it does not appear to be one of employment. The Club has little if any control over how the coach trains and coaches the team. It is common for a coach to have a high degree of autonomy over how a sporting team plays and trains. The terms and conditions of the coaching contract provide that the coach will comply "with all reasonable requirements of the Club relating to preparation for matches, attendance at social functions, behaviour and dress".[15] I do not take the term to refer to or impinge upon the autonomy of the coach in relation to how the team plays and trains.
8. The SANFL regulations that apply to the Club prescribe maximum amounts that can be paid to coaches and players. It is unusual for a third party to be able to dictate how much an employer can pay an employee.
9. A spreadsheet of player payments for the 2021 to 2024 seasons shows that the highest amount received by any player in any of those seasons is $6,080. The next highest amount is $5,730 made to the same player in a different season. The third highest amount is $4,000 made to a different player. Most of the amounts paid to players are under $2,000 a season. The maximum amount of player payments in any of the seasons described in the Statement of Agreed Facts was $69,120.
10. The "Club Statement of Football Payments" which must be completed by an officer of the Club refers to reg. 31 of the League Regulations, which is referred to in agreed fact 8 set out above.
11. The contracts and declarations completed by coaches and those players who receive match payments are designed to ensure that the rules, regulations and payment limits prescribed by the SANFL are adhered to by affiliated associations and clubs. That view is reinforced by the SANFL not requiring players who do not receive match payments to complete a written contract.
12. To the extent that the informant relied on the terms and conditions of the playing and coaching contracts to support the existence of a contract of employment between players and the Club, the terms and conditions only apply to players who receive match payments. Most players who play for the Club are not subject to the terms and conditions. Further, the SANFL required the completion of contracts and drafted the terms and conditions, not the Club. In any case, the terms are consistent with a normal player and coach relationship whereby team members are required to adhere to the directions and instructions of the coach.

Payments made to persons other than players and coaches

1. The minutes of the Club's annual general meeting on 18 October 2021 provide some detail for the amounts to be paid in the 2022 season.[16] Payments to office holders are described as honorariums, the largest being $3,500 to the Club trainer. The Club president, secretary, game day recorder and community engagement officer each received $1,000 for the 2022 season. Two treasurers received $500 each. The B Grade team coach received $2,000. Payment to the A Grade team coach was deferred. Subsequently an amount of $12,000 was agreed and paid to the A Grade coach in 2022.
2. In Andreevski v Western Institute Student Union Inc,[17] the applicant was a student at the Victoria University of Technology who commenced proceedings under the Industrial Relations Act 1988 (Cth) seeking a remedy for the termination of his alleged employment as the editor of the respondent's magazine, 'Genesis'. The respondent maintained that no employment relationship existed between the parties. The respondent was comprised of an elected Executive with a number of office bearers, such as the President and Secretary, each of whom were paid honorariums, as well as a number of other paid staff. The annual budget showed that the salaries of these paid staff members were treated differently to the honorariums paid to the Executive. The applicant, who was to be paid a sum of $1,000 in instalments based on the number of issues produced, gave evidence that this sum had been variously described to him as an "honorarium, an annuity and as a payment", but never as a salary.[18]
3. Identifying the character of the sum paid to the applicant was central to determining whether a contract existed between the parties, Registrar Murphy stated the following:[19]

The Macquarie Dictionary defines an "honorarium" as an "honorary reward, as in recognition of professional services on which no price may be set". The respondent in this matter referred me to a Canadian case where it was stated (Re Vladicka and Board of School Trustees of Calgary School District No 19 (1974) 45 DLR (3d) 442 at 449, Alta SC, per McDonald J):

"A common thread running through (the dictionary) definitions (of honorarium) is the notion that while the money paid as an 'honorarium' is a compensation for services rendered, it is nevertheless not a payment for which the recipient, if not paid, could sue in a court of law. It is thus in the nature of an ex gratia or gratuitous payment, unlike a salary or wage or other contract remuneration. Certainly 'honoraria' paid to English barristers or to Fellows of the Royal College of Surgeons in England may be very substantial in amount. There is nothing in the use of the word in relation to those professions in England denoting a mere 'token' amount."

1. The amounts the Club pays to its officers, which all seem to be committee members, are honoraria in my view. The positions are voluntary and have been created for the advancement of the Club and its objectives.
2. I have considered Re McDonald. The applicant worked as a volunteer at an art gallery and was charged a reduced rate of commission by the gallery for any art work made by her that the gallery sold. It was held that the applicant was not a worker in the relevant sense and the gallery was not a PCBU. The comments Commissioner Hampton made about the characteristics of a volunteer do not conflict with the present facts:[20]

As outlined earlier, s.4 of the WHS Act defines a "volunteer" as meaning a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses). This is broadly consistent with the approach that has been taken by the Courts and Tribunals on this issue and is a common understanding of the concept. Namely, in general terms, a volunteer is someone who enters into any service of their own free will, or who offers to perform a service or undertaking for no financial gain. The commitments shared between the parties are usually considered moral in nature, rather than legal. Payments or benefits unrelated to hours of work or the actual performance of work will not normally by themselves imply that a person is an employee. In these circumstances, any payment or benefit can more aptly be described as an 'honorarium' or gift. For example, a worker may receive board and lodgings or reimbursements for expenses and still be considered a volunteer provided that this was the fundamental nature of the relationship. In other situations, a worker who performs work for non-monetary benefits, such as rent free accommodation, can be considered to be an employee rather than a volunteer if the underlying relationship is objectively intended to be a legal contract of that nature. I will shortly return to the implications of the statutory definition of a volunteer. (Footnotes omitted)

1. The informant submitted that the $200 paid per match day to canteen managers is not an honorarium and is roughly equivalent to the hourly amount payable for such a role under the relevant industrial instrument.
2. The agreed facts do not detail what the role of canteen manager entails. It is not clear whether canteen managers are responsible for setting up the canteen on home match days, ordering food and other materials, cleaning up after closing and rostering others to work in the canteen. If the role includes those things, the assumption that role only involves a 6 hour attendance on home match days may not be correct. The honorarium may be paid on a per match basis because only one of the two canteen managers works in the canteen on a home match day. That is a supposition, but it may explain why the canteen honorarium is paid on a different basis to the other honoraria. Even if a canteen manager worked in the canteen on every match during the 2022 season, the maximum amount paid would be $1,600, which is consistent with the honoraria paid to the Club officers.
3. I am satisfied that the payment made to the canteen managers is an honorarium. There is no written contract for the role. There is no assertion of any control over the canteen managers. While an amount is paid per home match day, it is not paid by reference to the number of hours the canteen managers perform work for. Neither the Club nor the canteen managers are responsible for declaring or deducting taxation.
4. In EFEX Group Pty Ltd v Bennett,[21] Besanko J had to determine the nature of the relationship between the parties where there was no written contract governing the arrangement. His Honour observed that it was held in Personnel Contracting that the label parties attribute to their relationship is not determinative of the relationship and rarely assists in characterising the relationship by reference to contractual rights and obligations as required by law.[22]
5. I am satisfied that the amount paid to the trainer is an honorarium. The role presumably involves attending games and training sessions.
6. Besanko J observed that the facts of EFEX Group were "at the other end of the spectrum from a case where the terms of the parties' relationship are comprehensively committed to a written contract".[23] Besanko J also observed that the multifactorial approach "remains a useful approach"[24] in some cases, especially when there is no written contract of employment. That observation has application to the Club officers, canteen managers and trainer. If the observation also applies to the contracts between the Club and its players and coaches, given they are not contracts of employment, then the following indicia show there was no contract of employment between the Club and any person it made a payment to:
   • The evidence does not establish that the Club or any person it made a payment to wished to enter into a contract of employment;
   • The coaching and playing contracts provide that the involvement of coaches and players with the Club was in the nature of a hobby or pastime which expressly contradicts the existence of an employment relationship;
   • No person that the Club made a payment to in the 2022 season was held out by the Club to be an employee of the Club;
   • The right of control exercised by the Club over coaches, players, trainer, officials and canteen managers was limited;
   • Neither the Club nor any person to whom it made a payment was responsible for deducting or declaring any taxable income;
   • The Club did not limit in any way the ability of any person that it made a payment to, to undertake any form of employment.

1. The agreed facts record that the playing and coaching contracts were valid to the end of the 2022 football season. The alleged offending took place on 15 September 2022. The 2022 season commenced for the Club on 23 April 2022 and concluded on 20 August 2022. The agreed facts and the Book of Documents reveal that all payments made by the Club to coaches, players, club officials, canteen workers and the trainer in 2022 were made prior to 15 September 2022.
2. The evidence does not establish that the roles of the officers of the Club who received an honorarium were completed by 15 September 2022. The Club's annual general meeting appears to take place in October each year.
3. If the Club had been engaged in a contract of employment with a player, coach, trainer or canteen manager in 2022, the contract was for a fixed duration which ended on 20 August 2022. For that reason, the secondary submission is accepted in relation to those roles, but not in relation to the officers of the Club who received an honorarium for their service to the Club.

1. The informant has failed to establish beyond reasonable doubt that the Club was a PCBU as at 15 September 2022. For that reason, the prosecution must be dismissed.
2. I will hear from the parties before making orders. An agreed form of orders reflecting the outcome is to be filed by 17 December 2025, failing which each party is to submit its own form of draft orders by 19 December 2025.

[1] SANFL Community Football Rules and Regulations December 2021, Appendix 4, paragraph 1.

[2] [2022] HCA 1; (2022) 275 CLR 165.

[3] [2016] FWC 300.

[4] Narich Pty Ltd v Commissioner of Pay‑roll Tax [1983] 2 NSWLR 597, 600-601; approving Australian Mutual Provident Society v Chaplin (1978) UKPC 7; (1978) 52 ALJR 407, 409-410.

[5] [2022] HCA 1 [47] per Kiefel CJ, Keane and Edelman JJ and [172]-[173] per Gordon J, Steward J agreeing as to the test to apply, but not the outcome at [203].

[6] [2022] HCA 2; (2022) 275 CLR 254.

[7] Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; (2020) 279 FCR 114, 165 [242].

[8] [2022] HCA 1; (2022) 275 CLR 165 [105]-[106].

[9] Attorney-General for NSW v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 at 250.

[10] Amalgamated Society of Carpenters and Joiners v Haberfield Pty Ltd [1907] HCA 37; (1907) 5 CLR 33 at 39.

[11] cf Gardner, "The Contractualisation of Labour Law", in Collins, Lester and Mantouvalou (eds), Philosophical Foundations of Labour Law (2018) 33 at 42, referring to Emmens v Elderton [1853] EngR 884; (1853) 13 CB 495 at 506.

[12] Exhibit T1, Book of Documents, 127.

[16] Ibid 150-158; the minutes incorrectly describe the date as 84th October 2021.

[17] (1994) 58 IR 195.

[20] Re McDonald [2016] FWC 300 [32].

[21] [2023] FCA 508.

[22] Ibid [89]; Personnel Contracting [2022] HCA 1 [63]-[66] Per Kiefel CJ, Keane and Edelman JJ; [127] per Gageler and Gleeson JJ; [184] per Gordon J.

[23] EFEX Group Pty Ltd v Bennett [2023] FCA 508 [91].

[24] Ibid [94]; Personnel Contracting at [61] per Kiefel CJ, Keane and Edelman JJ; at [120]-[121] per Gageler and Gleeson JJ.