Fair Work Act 2009

s.394 - Unfair dismissal

The Scout Association of Australia Queensland Branch

Applications for unfair dismissal - Jurisdictional objection - Whether Applicants were employees or volunteers - Parties did not intend to make an agreement that was legally binding and to carry legal consequences - Applicants not employees - Applications dismissed.

[1] On 20 June 2020, Mr Mark Pitt and Miss Sharon Campione (the Applicants) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against The Scout Association of Australia Queensland Branch (the Respondent/Association).

[2] As Mr Pitt's and Ms Campione's circumstances surrounding dismissal were identical, the matters will be considered together. It is relevant to note that Mr Pitt and Ms Campione are partners.

[3] In the initial Form F2, the Applicants submitted that their dismissal took effect on 31 May 2020. Due to the operation of s.40A of the Act, I am satisfied that both applications were lodged within time.

[4] In the Form F3 - Employer response to the unfair dismissal applications, the Respondent raised two objections on the basis that the Applicants were not dismissed and were not employees. The Respondent submitted that the Applicants were volunteer Campsite Caretakers of the Karingal Campsite (the Campsite), not employees, and therefore were not capable of being dismissed.

[5] The matter did not settle at conciliation and was allocated to me. I issued directions for the filing of material. Both the Applicants and the Respondent agreed for the jurisdictional matter to be determined on the papers. The Applicants and Respondent filed submissions that were to be relied upon in relation to the jurisdictional objections.

[6] On 1 May 2019, the Applicants made an application to become members of the Association and were appointed as campsite caretakers at the Karingal Campsite. Their responsibilities as outlined in the positions duty statement, included but were not limited to, greeting customers to the Campsite, registering customers, collecting customer fees, ensuring that there are clean facilities and ensuring that customers are aware of the Campsite rules and emergency proceedings. The Applicants submitted that, in total between them each week, they worked an average of 49 hours, but were required to remain on the campsite for significantly longer periods.

[7] On 13 January 2020, volunteer members consisting of two Deputy Chief Commissioners and the Chair of the Karingal Campsite management committee, met with the Applicants and discussed that the Applicants volunteer role would continue to 31 May 2020. The Respondent submitted that four days later, at a further meeting between the Applicants and a Deputy Chief Commissioner, it was agreed that the Applicants appointment as 'volunteer caretakers' of the Karingal Campsite would conclude on 31 May 2020. The Respondent submitted that at this meeting, the Applicants were informed that they were able to reapply for the role as expressions of interest were to be advertised for a period of 12 months during the Applicants remaining appointment.

[8] On 1 June 2020, the Applicants emailed the Chairman of the Karingal Campsite Management Committee and stated that the duty statement in which they were appointed, does not contain an end date. Further correspondence from the Applicants the following day proposed for them to continue as caretakers for 12 months.

[9] On 5 June 2020, the Chairman of the Karingal Management Committee, emailed the Applicants and requested for them to cease their volunteer caretaker duties immediately. On 8 June 2020, the Applicants replied that the Respondent's policy was to appoint caretakers for a year and if a new policy has since been introduced, it does not override their existing conditions. The Applicant's also stated that "we were appointed to the position of volunteer caretakers by a formal vote" and believed they can only be dismissed in the same manner.

[10] On 16 June 2020, the Applicants membership appointment was changed to reflect their removal from the campsite role.

[11] The Respondent gave evidence that it is an incorporated association whose primary purpose is to provide scouting to the youth of Queensland. The Respondent submitted that it employs staff to support its overall operation, including accounts staff and general office staff. The staff report to the General Manager and are engaged by employment contracts.

[12] The Respondent submitted it also operates with the support of volunteers, including volunteers that run and manage camp sites. The Respondent stated it does not employ staff to run camp sites; it is conducted solely by volunteers, such as the Applicants. All volunteers are under the control of the Chief Commissioner, who is also a volunteer, and all volunteers must be members of the Association.

[13] The Respondent submitted that the Commission does not have jurisdiction to deal with the termination of volunteer roles. The Respondent contended that a volunteer is someone who enters into any service of their own free will and who offers to perform a service or undertaking for no financial gain. The Respondents submitted that the Applicants were not paid wages or renumeration in relation to their volunteerism. It was contended that the fact of the Respondent having provided lodgings and reimbursement of expenses to the Applicants, does not take away from the character of their roles as being that of volunteers.

[14] It was also submitted and that the Applicants were motivated by altruism, given the role description, and that based on the Applicants agreeing to the ideals of the Scout Movement, it motivated their decisions to join the Association and to carry out the volunteer roles. The Respondent contended this signified a moral obligation, as opposed to a legal obligation.

[15] The Respondent relied upon authorities in its submissions. The Respondent submitted that the current matter contains similarities to the matter in Teen Ranch Pty Ltd v Brown[1], where the Full Court held that there was no contract of employment between a volunteer worker engaged in work for a religious organisation. The Respondent submitted that it was found that the volunteer worked at the ranch as part of his Christian activities and the fact that he volunteered and received benefits in the form of lodgings, did not constitute a contract of employment. The Respondent submitted that this is similar to the matter at hand where the Applicants became members of the Respondent Association and agreed to its aims and objectives, including through being Campsite Caretakers.

[16] The Respondent also relied upon Thinh Nguyen & Thanh Le v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter_[2]_. The Respondent submitted that the factors that were determined by the Commission in that matter, which held that those Applicants were employees, did not apply to the role description of the volunteer campsite caretakers in this instance. It was submitted that the volunteer campsite caretaker role description was to perform caretaker duties between 4:00pm Sunday and 4:00pm Friday, or such other times as may be agreed between the parties with a total amount of hours to be agreed by the parties over a calendar monthly period. The Respondent gave evidence that the duty statement was never signed by either party.

[17] The Respondent also relied upon Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club_[3]_ where the Applicant was considered to not be an employee. The Respondent submitted that it was similar to the matter at hand as the Respondent was also a not-for-profit organisation and the Applicant was a member of the Respondent's organisation, that was paid $50 per week as a bingo caller. It was submitted that the $50 that was paid per week was a voluntary fee for services rendered, not a wage, and there was no employment contract. The Respondent relied upon the following passage:

"An agreement to do something is only regarded as a contract if the parties intended the agreement to be legally binding and carry legal consequences. That is, if something goes wrong, if one party failed to act in accordance with the agreement, the other party would be entitled to take legal action to seek performance. In employment situations where work is intended to be performed for payment, the necessary legal relations are generally present." [4]

[18] According to the Applicants, from the period of March 2019 to 31 May 2020, the Applicants were engaged by the Respondent as campsite caretakers of the Karingal Scout Campsite. The Applicants submitted that they entered into a legally binding contract with the Respondent "for an exchange of valuable benefit and have the relationship of employee and employer".

[19] The Applicants stated that in order to become caretakers of the Campsite, they were required to become members of the Association. It was submitted that the Respondent paid for these costs.

[20] The Applicants submitted that in exchange for their roles as caretakers on the Campsite, they were not required to pay site fees ($154 per week) or for electricity, gas and water. It was submitted that the Applicants would not have taken on the role of campsite caretakers if their living expenses were not paid by the Respondent.

[21] In a statement, Mr Pitt submitted that in addition to the list of duties that the Applicants received, the Applicants also completed additional work. Mr Pitt stated that he had been given the task of mapping out the campsites, as well as completing a chainsaw and tractor safety course, which was paid for by the Respondent.

[22] Mr Pitt submitted that the Applicants performed work that was originally handled by the Scouts Head officer, including taking bookings and organising the banking and supply orders. Mr Pitt stated that the Applicants were also required to monitor fire warnings and explain the emergency fire exit plan to all campers.

[23] Mr Pitt submitted that there were discussions between the Applicants and Mr Verner regarding the additional duties the Applicants were performing. According to Mr Pitt, Mr Verner said he would speak to the Scouts Head office concerning the Applicants potentially being paid for the work that they completed. Mr Pitt stated that around this time, the groundsman had resigned, and Mr Pitt expressed his interest to Mr Verner in taking over the role of groundsman. Mr Pitt submitted that he was already performing the groundsman duties while the groundsman was not on site. This included changing gas bottles, fixing the power and hot water issues, fixing blocked toilets and the removal of fallen trees. According to Mr Pitt, the Scouts' head office did not agree for him to become the groundskeeper as he was currently carrying out the role of caretaker.

[24] In Ms Campione's statement, it was submitted that she also performed additional duties when the need arose. Ms Campione submitted that when she first started the role as caretaker, every morning she would record invoices on a spreadsheet for Scouts Headquarters. Ms Campione submitted that after the new computerised booking system was introduced, she would use it to create a breakdown of the cash and EFTPOS to send to Scouts Headquarters daily. According to Ms Campione, she developed a guide and trained the weekend wardens how to use this system. Ms Campione submitted that she also became responsible for banking the takings and balancing the petty cash. It was submitted that the Respondent had full oversight over the work the Applicants performed.

[25] Ms Campione submitted that in June 2019, Mr Verner spoke to her about the additional work she was completing. According to Ms Campione, Mr Verner suggested that as she was handling a lot of the booking and financial tasks, that she could be paid a small wage. Ms Campione stated that Mr Verner later informed her that Scout's Head Office had advised that the Applicants were not to be paid for the work performed on the campsite.

[26] According to the Applicants, after complaints that were made by the Applicants and after the Respondent raised concerns regarding the hours the Applicants were working, the Applicants were dismissed from their role as caretakers. The Applicants submitted they were not notified prior to dismissal and were not given an opportunity to respond.

[27] The Applicants submitted that Teen Ranch Pty Ltd v Brown[5] is to be distinguished as in that matter the Applicant had no intention in his mind to enter into legal obligations. Whereas in the current matter, the Applicant submitted that there is a clear positive indication that legal relations were contemplated between the Respondent and the Applicants. The Applicant contends that provision of free lodging, electricity, gas and water were consideration for which the Applicants agreed to perform the work of caretakers.

[28] The Applicants also relied upon Morris v Anglican Community Services[6] where the Applicants acted as caretakers of a church camp site in exchange for accommodation, electricity, council rates, waters rates and the use of the telephone. It was held that the Applicants were entitled to unpaid wages. The Applicants contend that in the present case, the Applicants also provided work for benefit of a considerable value.

[29] It was submitted that the nature of the work as set out in the duties statement was reflective of the parties entering into an employment agreement with clear and certain terms, with the Respondent having control over the Applicants performance of such terms, indicating that it is work to be taken on by an employee. Additionally, it was submitted that as a condition of becoming the campsite caretakers, the Applicants were required to complete Child Safety and Work Health and Safety training, as well as obtain a Blue Card. It is submitted this is not consistent with a volunteer relationship.

[30] The Applicants submitted that the duties statement also demonstrates that the Respondent exercised a high level of control in how the Applicants work as caretakers was to be carried out. The Applicants submitted that in Thinh Nguyen & Thanh Le v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter it was held that those Applicants were employees who worked on a regular basis that performed their duties in line with the school's expectations.

[31] The Applicant submitted that the factors the Commission found in finding that they were employees, could be applied in the present matter, being:

"a. There was a requirement for the Applicants to provide caretaker duties daily, each week, on an ongoing basis. The Applicants were expected to be on site for significant periods of time to attend to customer service, first aid, and emergency procedures.

b. Caretaking duties were required in accordance with the duties statement and expectations of the Applicants were clearly understood.

c. It was predetermined that the Applicants would receive free lodging and other living expenses in return for their work as caretakers.

d. There was a mutual expectation of ongoing work. The Respondents organised a shipping container for the Applicants so they could store their belongings and reside on site on a more permanent basis.

e. The Applicants were required to advise the Branch campsite contact number and a public notice board if they were going to be absent.

f. The Applicants were unable to allocate their work to other people without the express approval of the Respondent. As was the process for the Applicants, a prospective caretaker would need to become a member and complete the required onboarding training and blue card application.

g. On their own accord the Applicants recorded timesheets for the hours of work they performed.

h. The Respondent retained the capacity to exercise control over their functions, for example and as noted above, Ms Campione performed additional office duties and Mr Pitt performed additional groundskeeping working, which is conducted by paid employees."

[32] The Applicants submitted that as in Nguyen, the mere fact that the Respondents referred to the Applicants role as a volunteer role, does not change the fundamental nature of the relationship.

[33] The Applicants submitted that Cudgegong Soaring Pty Ltd v Harris_[7]_ is highly analogous to the present matter as in in Cudgegong it was held that the provision of free accommodation to the live-in caretaker was found to be valuable consideration despite the fact the club did not pay him wages. The Applicants cited Judge Nielson in Cudgegong "I would not categorise his offering his services to obtain a basic human necessity as being a social arrangement". The Applicants submitted that the Karingal Campsite had become the home of the Applicants, which is disguisable from Teen Ranch where recreational accommodation was received on weekends and holidays.

[34] One of the factors to take into account to determine if an employment relationship existed between the Applicant and the Respondent, is whether a contract of employment existed. A person cannot be considered an employee without a contract of employment.

[35] The decision of Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club[8] provides succinct statements of relevant legal principles:

"Is there an identified contract of employment?

[19] If there is no contract of employment identified between the parties, the applicant cannot be an employee. If there is a contract of employment and the person performs work as an employee, the employer must conform with the following:

• Any relevant award or applicable enterprise agreement that covers the work performed.

• Any industrial legislation, such as the Fair Work Act 2009 its predecessors, or New South Wales state industrial legislation including Workers Compensation legislation.

[20] An employee within various limits may pursue a remedy for unfair dismissal such as this application. Generally a non-employee, a volunteer or contractor cannot pursue such a remedy.

[21] The law requires that there are certain basic essential requirements or elements for an agreement to be legally enforceable as a contract. These are described in Professor Andrew Stewart's book, Stewart's Guide to Employment Law[9] and in various other forms in texts such as Macken, McCarry & Sappideen's The Law of Employment[10] as being the following essential elements:

• The parties must have reached agreement as to the terms of the contract.

• The agreement must involve the provision of "consideration" by each party.

• The agreement must be intended by the parties to be legally enforceable.

• The terms of the agreement must be certain and complete and there must be no element of illegality or any other vitiating factor that would deprive the agreement of legal effect."

The parties must have reached agreement as to the terms of the contract.

[36] Where a contract is not evidenced in writing, the court must infer from the parties whether they have reached an agreement.[11]

[37] The Applicants submitted that the previous caretakers approached the Applicants and offered the role of caretaker in exchange for a waiver of site fees and utilities. The Applicants have also relied upon the duties statement as to form part of the contract.

[38] It is clear that the campsite caretaker duty statement outlines the responsibilities of the Applicants.

The agreement must involve the provision of a 'consideration' by each party.

[39] The Applicants were not required to pay site fees ($154 per week) and their electricity, gas and water was paid for, as well as membership to the Association.

The agreement must be intended by the parties to be legally enforceable

[40] _Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club[12]_provides the following:

"[40] An agreement to do something is only regarded as a contract if the parties intended the agreement to be legally binding and carry legal consequences. That is, if something goes wrong, if one party failed to act in accordance with the agreement, the other party would be entitled to take legal action to seek performance. In employment situations where work is intended to be performed for payment, the necessary legal relations are generally present.

[41] There are exceptions such as Teen Ranch Pty Ltd v Brown and Redeemer Baptist School v Glossop & Ors[13] and counter-exceptions of Ermogenous v Greek Orthodox Community of SA Inc.[14]

[42] Volunteer work by its definition does not, in general, involve this element as the usual motivation for the arrangement is altruism rather than private gain or material advantage. That is, the commitments between parties in such arrangements are moral rather than a legal and formal one. In this matter the applicant provided work in a capacity which is argued to be employment and have a contract of employment. The respondent asserts that she was a volunteer or other than an employee. In determining further whether a contract existed the question must be asked, can it reasonably be inferred that the parties intended to create legal relations?"

[41] This is where the Applicants cases must fail. Whatever the Applicants may have thought, there was not a meeting of the minds between the parties concerning an intention for there to be an agreement between them that was legally binding and that carried legal consequences. The Respondent had a clear and consistent approach to circumstances where it intended to offer employment, and a different, and also clear and consistent approach to circumstances where it intended for functions to be performed on a volunteer basis. The approach the Respondent took to making the arrangements it did with the Applicants was consistent with the later, not the former. In those circumstances I cannot be satisfied that the parties intended to enter a contract that was legally enforceable.

[42] On the basis of my conclusion that the parties had not intended to make an agreement that was legally binding and to carry legal consequences, I am satisfied that the Applicants were volunteers, not employees of the Respondent. Therefore, the Applicants were not persons protected from unfair dismissal and accordingly the Commission does not have jurisdiction to consider the Applicants' unfair dismissal applications.

[43] The applications are dismissed.

[1] Teen Ranch v Brown (1995) 11 NSWCCR 197.

[2] Thinh Nguyen & Thanh Le v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter [2014] FWC 3574.

[3] Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143.

[5] Teen Ranch v Brown (1995) 11 NSWCCR 197.

[6] Morris v Anglican Community Services [2000] SAIRC 6.

[7] Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92.

[8] Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143.

[9] Stewart, A Stewart's Guide to Employment Law, The Federation Press, Sydney 2008

[10] Macken, JJ, O'Grady, P, Sappideen, C The Law of Employment, Fourth Edition, LBC Information Services, Sydney 1997.

[11] Walker v Salomon Smith Barney Securities Pty Ltd & Anor [2003] FCA 1099.

[12] Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143, [40].

[14] (2002) 209 CLR 95.

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