Resources: Blog

FWC Clarifies Status of Volunteer Coaches

Blog
|

World in Motion

The Fair Work Act 2009 (Cth) (FW Act) provides a protection from unfair dismissal and permits an application to be made for remedy. In our previous blog Objection! – Access to the Unfair Dismissal Jurisdiction we outlined some of the jurisdictional objections that can be raised by an employer when an unfair dismissal is lodged by an employee. Access to the unfair dismissal jurisdiction however is limited to eligible employees and an objection may also be lodged where it is disputed that the applicant was not an employee. In some circumstances, it may not be entirely clear whether an applicant was an employee rather than an independent contractor or volunteer.

The Fair Work Act 2009 (Cth) (FW Act) provides a protection from unfair dismissal and permits an application to be made for remedy. In our previous blog Objection! – Access to the Unfair Dismissal Jurisdiction we outlined some of the jurisdictional objections that can be raised by an employer when an unfair dismissal is lodged by an employee.

Access to the unfair dismissal jurisdiction however is limited to eligible employees and an objection may also be lodged where it is disputed that the applicant was not an employee. In some circumstances, it may not be entirely clear whether an applicant was an employee rather than an independent contractor or volunteer.

In the recent decision of Adam Grinholz v Football Federation Victoria Inc [2016] 7976 (Grinholz case) the Fair Work Commission (FWC) considered a jurisdictional objection lodged by Football Federation Victoria Inc (FFV).

Mr Grinholz and FFV entered into agreements in 2015 and 2016 where he was to coach the Girls Under 13 football team. In September 2016, the Agreement was terminated after Mr Grinholz forfeited a game without the approval of FFV.

Mr Grinholz lodged an unfair dismissal application and claimed that he was an employee of FFV. FFV argued that Mr Grinholz was a volunteer and accordingly, as he was not an employee, could not lodge an application for unfair dismissal.

The FWC noted that the contracts were “Voluntary Service Agreements” where Mr Grinholz was required to attend training sessions and matches. Under the agreement he was to be paid an honorarium for expenses related to his travel and accommodation.

The FWC had regard to the accepted criteria to determine if Mr Grinholz was an employee or volunteer. These factors included whether an employer:

  • Exercised control over the performance, location and hours of work;
  • Provided tools and equipment;
  • Had the right to terminate or suspend the worker;
  • Provided a uniform or business card;
  • Paid a wage or salary; and
  • Paid sick leave or annual leave.

Even after applying the above factors to the arrangement between Mr Grinholz and the FFV it was still not clear whether Mr Grinholz was an employee.

However, the FWC stated that the essential character of the relationship should be considered. The FWC was satisfied that it was the intention of the parties, as per the Agreements, to establish a volunteer relationship.

Accordingly, the FWC upheld the jurisdictional objection by finding Mr Grinholz was a volunteer and not an “eligible employee” and dismissed Mr Grinholz’s unfair dismissal application.

The Grinholz decision will be a relief for sporting organisations who rely significantly on volunteers.

The Volunteer Agreement was considered to be for legitimate purposes rather than creating a sham arrangement and the FWC noted that, for organisations such as the FFV, the high level of control over the performance and standard of work was not inconsistent with a volunteer relationship.

As a reminder to sporting organisations who use volunteers:

  • Volunteer arrangements should be formalised by way of a volunteer agreement;
  • Volunteer agreements should clearly state it is a volunteer arrangement and not one of employer/employee (and therefore workers compensation does not apply); and
  • Volunteers should not be paid for their services. Honorariums may be paid to volunteers for expenses reasonably likely to be incurred.

 

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

Similar articles

Why clubs need to regulate fan and member behaviour at sporting events

Have a seat and take a stand

Racial abuse from fans and/or members certainly falls foul of discrimination laws and can lead to significant questions being asked of clubs and organisations about what steps they took or could have reasonably taken to prevent players from being subject to such behaviour.

Read more...

Social media, sporting clubs and athletes

Doing It For The 'Gram

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.

Read more...

Folau sacking case could change how employers deal with discrimination

"Impossible position" for employers

As the Israel Folau saga enters another chapter, our Managing Director Athena Koelmeyer shared her thoughts with Smart Company’s News Editor, Matthew Elmas, on how this case will potentially affect all employers and employees not just sporting organisations and athletes.

Read more...

The onus and presumption in adverse action matters

It’s on you

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason. One of the features of the general protections provisions under the FW Act is the presumption that adverse action was taken for a proscribed reason unless it is proven that the adverse action was not taken for that reason.

Read more...

Notice of termination in the employment contract

Put it in writing

When it comes to engaging new employees or promoting existing employees, it is crucial that employers prepare and review contracts of employment to ensure that they accurately reflect the terms which will govern an employee’s employment.

Read more...

Termination of employment letters

In your letter

A termination of employment letter serves a significant purpose in bringing the employment relationship to an end.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.