1
Fair Work Act 2009
s.604—Appeal of decision
Mark Pitt; Sharon Campione
v
The Scout Association of Australia Queensland Branch
(C2021/383)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT BINET
SYDNEY, 18 MARCH 2021
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 Decision1 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.
The Decision under appeal
[6] The factual matrix of the Decision under appeal, in broad summary, is as follows:
1 Mark Pitt; Sharon Campione v The Scout Association of Australia Queensland Branch [2021] FWC 63 (‘Decision’).
[2021] FWCFB 1241
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 1241
2
a. The Respondent is an incorporated association whose primary purpose is to
provide scouting to the youth of Queensland.
b. 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.
c. 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.
d. 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.
e. 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.
f. 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.
g. 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.
h. The Appellants were required to advise the Branch campsite contact number
and update a public notice board if they were going to be absent.
i. 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.
j. 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.
[2021] FWCFB 1241
3
k. Both Appellants variously approached the Respondent seeking payment for
additional duties which they performed but the Respondent declined to make
any such payments.
l. 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
Principles of Appeal
[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 Foggo6, 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:
2 Decision [35] – [40].
3 Ibid [41].
4 Ibid [42].
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.
[2021] FWCFB 1241
4
“[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
Consideration
Appeal Ground One
[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.
Appeal Ground Two
[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:
7 Voros v Dick [2013] FWCFB 9339 at [11], Asia Pacific Cleaning Services Pty Ltd v Cook [2013] FWCFB 5320 at [5].
[2021] FWCFB 1241
5
a. Negotiations between the parties for a new duty statement to work only hours
equivalent to the compensation they received;
b. The provision of a storage unit; and
c. 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:
a. 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.
b. How long is the arrangement for?
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.
c. How significant is the arrangement to the business?
8 Unpaid work fact sheet FWOFS33.00.
[2021] FWCFB 1241
6
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.
d. What are the person’s obligations?
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 role is primarily observational; and
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.
e. Who benefits from the arrangement?
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.
Permission to appeal
[2021] FWCFB 1241
7
[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,10a
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
9 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
10 [2010] FWAFB 5343 [27]; (2010) 197 IR 266.
11 Ibid at [24] – [27].
12 Wan v AIRC (2001) 116 FCR 481 at [30].
[2021] FWCFB 1241
8
the legal principles applied by the Commissioner were disharmonious when
compared with other decisions dealing with similar matters.
Conclusion
[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.
VICE PRESIDENT
Appearances:
Mr M Pitt on his own behalf.
Ms S Campione on her own behalf.
Mr C Ray for the Respondent.
Hearing details:
2021.
Telephone hearing.
10 March
Printed by authority of the Commonwealth Government Printer
PR727580
WORK COMMISSION THE AF THE SEAN
