• Nick Noonan and Alex Moddel

Does your organisation use volunteers? You need to read this.

The legal status of volunteers has recently been considered by the Fair Work Commission.

Facts

Mr Pitt and his partner Ms Campione were volunteer campsite caretakers for the Scout Association. Between them, they worked an average of 49 hours per week, but in return, they did not have to pay fees to use the site facilities.

Their membership with the Association was terminated after approximately a year, at which time they each filed an Unfair Dismissal application with the Fair Work Commission.

In the proceedings, the Scout Association submitted that it operated with contracted employees who performed operational, accounting and general office duties, but also relied upon the support of volunteers, including to operate and manage campsites. All volunteers were members of the Scout Association and were under the control of the Chief Commissioner, who was also a volunteer.


Decision

The Scout Association lodged a jurisdictional objection to the claim, contending the applicants were volunteers and not employees. Only employees have rights to lodge Unfair Dismissal claims.

In finding the applicants were volunteers, the Fair Work Commission held that the parties had not intended to create a legally binding agreement with associated legal consequences.

The Commission had regard to a 2011 decision (Susan Bergman v Broken Hill Musicians Club T/A Broken Hill Musicians Club [2011] FWA 1143) of Fair Work Australia (as the Commission was then known), in which it was stated:

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.

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 determining further whether a contract existed, the question must be asked, can it reasonably be inferred that the parties intended to create legal relations?

In applying this reasoning, Commissioner Simpson concluded:

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.

The jurisdictional objection was upheld and the Unfair Dismissal claims were dismissed.

An appeal in respect of the decision was also dismissed.

While the decision appears to preserve the rights of organisations to use both volunteers and employees, we generally caution against the use of volunteers to perform work which would ordinarily be performed by paid employees, having regard to the risk that such persons may seek payment for employee entitlements as well as commence employee-type claims.

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