Fair Work Act 2009

s.604 - Appeal of decision

The Scout Association of Australia Queensland Branch

Appeal against decision [2021] FWC 63 of Commissioner Simpson at Brisbane on 6 January 2021 in matter numbers U2020/8606 and U2020/8607 - permission to appeal refused.

[1] Mr Mark Pitt and Ms Sharon Campione (Appellants) have lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (FW Act), for which permission to appeal is required, against a Decision[1] of Commissioner Simpson issued on 6 January 2021. The Decision dealt with applications by each of the Appellants for an unfair dismissal remedy pursuant to s.394 of the FW Act (Applications).

[2] Mr Pitt and Ms Campione are partners, and as the factual matrix of their Applications were similar, the Applications were heard simultaneously and dealt with together in the Decision.

[3] The Appellants alleged that they were unfairly dismissed from employment with the Scout Association of Australia Queensland Branch (Respondent). The Respondent opposed the Applications on the grounds, inter alia, that the Appellants were not employees and therefore ineligible to seek a remedy for unfair dismissal.

[4] The Commissioner determined that there was not a meeting of the minds of the parties to create an employment relationship between the parties. The Commission ordered that the Applications be dismissed on the grounds that the Appellants were volunteers, rather than employees, and therefore ineligible to seek a remedy for unfair dismissal

[5] The Full Bench has heard the parties on permission to appeal and the substantive appeal. For the reasons that follow, permission to appeal is refused.

[6] The factual matrix of the Decision under appeal, in broad summary, is as follows:

1. The Respondent is an incorporated association whose primary purpose is to provide scouting to the youth of Queensland.

2. The Respondent employs staff who report to the General Manager of the Respondent and are engaged pursuant to contracts of employment. The Respondent also operates with the assistance of individuals it describes as volunteers. These individuals report to the Chief Commissioner, who is also described as a volunteer.

3. Individuals described as volunteers are required to become members of the Respondent. Employees are not. Membership requires acceptance of, and a commitment to, certain values which the Respondent ascribes to.

4. The Respondent operates a number of campsites, all of which are run by individuals it describes as volunteers. The 'volunteer wing' of the Respondent has developed a variety of duty statements for the roles performed by the individuals it describes as volunteers, including one for the caretakers at its Karingal Campsite.

5. On or before 1 May 2019, the previous caretaker of the Karingal Campsite invited the Appellants to take on the role of joint carektakers of the Karingal Campsite.

6. A condition of taking up the role was that the Appellants became members of the Respondent. The Appellants made an application to become members of the Respondent and were appointed as campsite caretakers at the Karingal Campsite effective 1 May 2019.

7. In exchange for their roles as caretakers the Appellants were excused from paying site fees of $154 per week and from the costs associated with their consumption of electricity, gas and water. The Respondent also organised a shipping container for the Appellants to store their belongings so they could reside on site on a more permanent basis.

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

9. The Appellants' responsibilities, as outlined in the duty statement for the position of camp caretaker, included but were not limited to, greeting customers to the Campsite, registering customers, collecting customer fees, ensuring that there were clean facilities and ensuring that customers were aware of the Campsite rules and emergency proceedings.

10. The Appellants submitted that between them they worked a total average of 49 hours per week, but were required to remain on the campsite for significantly longer periods.

11. Both Appellants variously approached the Respondent seeking payment for additional duties which they performed but the Respondent declined to make any such payments.

12. According to the Appellants, after they raised complaints and after the Respondent raised concerns regarding the hours the Appellants were working, the Appellants were dismissed from their role as caretakers.

[7] At first instance the Respondent submitted that the Appellants were motivated by altruism to perform the tasks they performed rather than a legal obligation to do so. The Respondent further submitted that, notwithstanding that the Appellants were provided with free rent and utilities, they were volunteers rather than employees and therefore not eligible to seek a remedy for unfair dismissal.

[8] The Appellants submitted that they had entered into a legally binding contact with the Respondent for the exchange of valuable benefits and that a relationship of employee and employer was created between the Appellants and the Respondent.

[9] In determining whether an employment relationship existed between the Appellants and the Respondent, the Commissioner considered whether a contract of employment existed. The Commissioner considered whether the agreement between the parties contained the basic essential requirements or elements for an agreement to be legally enforceable as a contract.[2]

[10] The Commissioner concluded, inter alia, that 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 to carry legal consequences.[3] Therefore, he was satisfied that the Appellants were volunteers, not employees of the Respondent. Accordingly, the Commissioner found that the Applicants were not persons protected from unfair dismissal and ordered that the Applications be dismissed.[4]

[11] In the Decision under appeal, the Commissioner was required, given the jurisdictional objection at first instance, to determine whether the Appellants were employees for the purposes of their applications. As such, the question before the Commissioner was one of jurisdictional fact. Accordingly, we must determine whether the Commissioner reached the right conclusion as to whether the Appellants were employees or volunteer,[5] not simply whether the Commissioner's ultimate finding was reasonably open to him.

[12] In Sammartino v Commissioner Foggo[6], the Full Court of the Federal Court noted the approach to be taken by a Full Bench of the former Australian Industrial Relations Commission in an appeal from a decision concerning whether a worker was an employee at law:

"[9] On an appeal from such a decision, if leave to appeal is given, the Commission is plainly not confined, in its consideration of the case, by principles that are found in cases such as House v The King (supra). In dealing with the appeal, the Commission is under a duty to consider all of the proven facts and those facts that have been admitted, and any inferences to be drawn from those facts, to arrive at its decision. It is also under a duty to determine the content of any point of law upon which its decision might depend. If, in undertaking any of these tasks, it finds that the Commissioner has made an error of law or an error of fact, it can exercise its powers under s 45(7).

[10] It will find an error of law or an error of fact if the Commission reaches a different conclusion on the facts or on the law than that arrived at by the primary decision-maker. Further, what must be shown in order to succeed on an appeal will plainly have a bearing on whether leave should be granted."

[13] Full Benches of this Commission have accordingly proceeded in appeals of this type on the basis that it is necessary to determine whether the primary decision-maker's conclusion concerning the existence or otherwise of an employment relationship was correct.[7]

[14] The Appellants' first ground of appeal contended that the Commissioner erred in law because he did not take an objective approach to determining whether there was an intention to create legal relations. According to the Appellants the Commissioner should have found that the duty statement along with the provision of a free site, access to utilities and a storage container objectively evidenced a binding agreement in the minds of the parties to create an employment relationship.

[15] The Commissioner turned his mind to these arrangements by implication between [18] and [33] of the Decision (where he summarised the Appellants arguments) and directly at [36] to [39] in his reasoning for his decision. The Commissioner concluded that notwithstanding these arrangements, he was not satisfied that both the Appellants and the Respondent intended to create an employment relationship. To the contrary, the Commissioner found that the evidence revealed that the Respondent consciously intended not to create an employment relationship. In our view, this finding and the resulting conclusion that the Appellants were not employees of the Respondent was the correct conclusion.

[16] We are not persuaded that the matters raised by the Appellant under this ground of appeal establish appealable error. Accordingly, the first ground of appeal is dismissed.

[17] The Appellants' second ground of appeal contended that the Commissioner erred in fact when he determined that there was no intention by the parties to make an agreement that was legally binding. In support of this appeal ground the Appellants refer to:

1. Negotiations between the parties for a new duty statement to work only hours equivalent to the compensation they received;

2. The provision of a storage unit; and

3. A request that the Appellants sign a lease agreement for their accommodation.

[18] The Appellants do not identify any factual error on the Commissioner's part in relation to any of these events. The Commissioner does not determine in his decision that any of these events did not occur as a matter of fact. Rather, it is the Commissioner's decision as to the legal effect of these events with which the Appellants actually take umbrage.

[19] On our view, rather than giving weight to the Appellants' argument that the parties intended to create legal relations, the fact that neither the revised duty statement nor the request to sign a lease are signed, is in fact consistent with the Commissioner's conclusion that the parties had not reached a meeting of minds. Furthermore, that the value of the duties performed did not equate to the consideration received is consistent with an honorarium which might be paid to a volunteer rather than a wage paid to an employee.

[20] The Appellants also refer to what they describe as "FWC guidelines" as to whether an employment or volunteer relationship exists as evidence that the Commissioner erred in fact. The materials on which they rely are in fact produced by the Fair Work Ombudsman.[8]

[21] The guidelines or factors which they rely on and their submissions in relation to each of these is as follows:

1. What is the nature and purpose of the arrangement?

Was it to provide a learning experience or was it to get the person to do work to assist the ordinary operations of the business or organization? Where the arrangement involves productive work rather than meaningful learning, training and skill development, it is likely to be an employment relationship.

Appellants submission: We managed the clients of park, banked funds, cleaned toilets etc this should all be deemed as productive work no learning was required by applicants.

The longer the period of the arrangement, the more likely the person is an employee. Although even relatively short engagements can still be an employment relationship.

Appellants submission: The applicants were in the position for 18 months.

1. How significant is the arrangement to the business?

Is the work normally performed by paid employees? Does the business or organisation need this work to be done? The more integral the work is to the function of the business, the more likely it is that an employment relationship could be found.

Appellants submission: The park could not operate without the caretakers to meet and greet, collect takings and clean facilities. We took over the role of banking which was a paid employee job as were the reconciliations. This work is currently being performed by a paid staff member since our dismissal.

In some cases a person might do some productive work to aid their learning. An employment relationship is unlikely to be found in these circumstances if:

• the expectation or requirements to perform such activities is incidental to that learning experience and not primarily for the operational benefit of the business or organization.

Appellants submissions: The duties were operational and of benefit to the business or organisation.

The main benefit from a genuine unpaid work arrangement should flow to the person undertaking the role. If the business or organization is gaining a significant benefit from the person's work, an employment relationship is more likely to exist.

Appellants submissions: The Scouts gained significant benefit from the duties we performed being both financial and customer relations handling of bookings (also performed by a paid position in head office)

[22] The Fact Sheet prepared by the Fair Work Ombudsman, and relied upon by the Appellants, deals with work experience placements as well as volunteering. The factors referenced by the Appellants are primarily addressed at distinguishing genuine work experience placements from employment. In relation to volunteering, the Fact Sheet identifies factors relevant specifically to volunteering. Relevantly these include that the parties did not intend to create a legally binding employment relationship and the volunteer is under no obligation to attend the workplace or perform work.

[23] We are not satisfied that these submissions demonstrate that the Commissioner reached the wrong conclusion on the question of whether an employment relationship existed. Accordingly, the second ground of appeal is dismissed.

[24] The Appellants contend that it is in the public interest for permission to appeal to be granted because the Respondent has many campsites that have the same practice of using volunteers as caretakers.

[25] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker.[9] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[26] Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is "in the public interest to do so". In _GlaxoSmithKline Australia Pty Ltd v Makin,[10]_a Full Bench identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[11]

[27] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[12] That the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[28] We are not satisfied that the grounds of appeal, individually or collectively, identify an arguable case of appealable error, so as to engage the public interest. Additionally, we reject the contention that the manner in which the Commissioner applied relevant legal principles to the facts was disharmonious when compared to recent decisions dealing with the characterisation of employer or volunteer relationships. Rather, the Commissioner approached the question before him in accordance with established principles and authorities.

[29] Having considered the matters raised by the Appellants with respect to permission to appeal, we are not persuaded that the public interest is enlivened. More specifically, we are not satisfied that:

• there is a diversity of decisions at first instance, therefore guidance from an appellate body is not required of this kind;

• the appeal raises issues of importance and/or general application;

• the decision at first instance manifests an injustice, or the result is counter intuitive; or

• the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[30] Having considered all the evidence, we find that the Commissioner's conclusion that the Appellants were not employees of the Appellant was not an error on a jurisdictional fact. For the reasons set out above, we are not satisfied, for the purpose of section 600(2) of the Act, that it would be in the public interest to grant permission to appeal.

[31] Permission to appeal is refused.

[1] Mark Pitt; Sharon Campione v The Scout Association of Australia Queensland Branch [2021] FWC 63 ('Decision').

[5] Voros v Dick [2013] FWCFB 9339 at [11]; Asia Pacific Cleaning Services Pty Ltd v Cook [2013] FWCFB 5320 at [24].

[6] Sammartino v Commissioner Foggo [1999] FCA 1231.

[7] Voros v Dick [2013] FWCFB 9339 at [11], Asia Pacific Cleaning Services Pty Ltd v Cook [2013] FWCFB 5320 at [5].

[9] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.

[10] [2010] FWAFB 5343 [27]; [2010] FWAFB 5343; (2010) 197 IR 266.

[12] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

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