Emil Ford Lawyers

Employees and volunteers - Ensuring your people are on the correct team

Subscribe button for Education newslettersubscribe buttonIn a recent case, the Fair Work Commission was required to decide whether a football coach was a volunteer or employee of Football Federation Victoria. This was an important question because it determined whether the coach was entitled to access the unfair dismissal provisions of the Fair Work Act 2009. This is a question of ongoing importance for schools and other not-for-profit organisations because classification as an employee carries with it many rights and protections for employees and greater liability for their employers. For this reason, some organisations deliberately misclassify individuals as volunteers rather than employees, as well as making this mistake by accident.

In the case, the coach signed a contract to coach an Under 13 girls’ team and in return received a $6,000 honorarium payable in instalments at the beginning and at the end of the program. Before the end of the program, the Football Federation terminated the coach and refused to pay the second instalment of the honorarium because the coach had forfeited a game without appropriate approval. The coach alleged that he had been unfairly dismissed.



Are your people employees or volunteers?

The Commissioner ultimately concluded that the coach was not an employee and therefore not entitled to make a claim under the Fair Work Act 2009, notwithstanding that the coach may have been contractually entitled to the second instalment of the honorarium. In reaching this decision, the Commissioner gave weight to the fact that the contract was referred to as a “voluntary services agreement”, the contract provided that the coach was not entitled to any fee or payment for services and the level of the honorarium was only sufficient to cover the coach’s reasonable travel and food expenses and could not be characterised as payment for services.

The Commissioner discussed several indicia that suggest that an individual should be classified as an employee but decided that the indicia did not yield a clear result. Instead, the Commissioner focussed on the essential character of the arrangement and the mutual intention of the parties.

Although the indicia did not decide this case, they provide a useful starting point to assist schools and other not-for-profit organisations in determining whether an individual should be classified as a volunteer or an employee. The things that point to a person being an employee are:

  • employer exercises or has the right to exercise, control over the manner in which work is performed, the location and the hours of work etc;
  • employee works solely for the employer;
  • employer advertises the goods or services of its business;
  • employer provides and maintains significant tools or equipment;
  • employer can determine what work can be delegated or sub-contracted out and to whom;
  • employer has the right to suspend or dismiss the worker;
  • employer provides a uniform or business cards;
  • employer deducts income tax from remuneration paid;
  • employee is paid by periodic wage or salary;
  • employer provides paid holidays or sick leave to employees;
  • the work does not involve a profession, trade or distinct calling on the part of the employee;
  • the work of the employee creates goodwill or saleable assets for the employer’s business;
  • employee does not spend a significant portion of their pay on business expenses.

We recognise that, as with the distinction between an employee and independent contractor, determining whether an individual is an employee or a volunteer is a difficult legal question. If you require assistance with an employment matter, please contact , or .

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