Paul Mifsud v Fire And Rescue NSW Band Incorporated - [2024] FWC 853

1 

 

Fair Work Act 2009  

s.394 - Application for unfair dismissal remedy 

Paul Mifsud 

v 

Fire and Rescue NSW Band Incorporated 
(U2023/10046) 

Jason Webster 

v 

Fire and Rescue NSW Band Incorporated 
(U2023/10192) 

 

DEPUTY PRESIDENT WRIGHT SYDNEY, 3 APRIL 2024 

Application for unfair dismissal remedy – jurisdictional objection raised by employer – 
applicants found not to be employees – applications dismissed  

 

Introduction and outcome 

 

[1] Mr Paul Mifsud and Mr Jason Webster have both made applications to the Fair Work 

Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order 

granting a remedy, alleging that they have been unfairly dismissed from their employment with 

the Fire and Rescue NSW Band Incorporated (Respondent). 

 

[2] In their applications, Mr Mifsud and Mr Webster stated that their employment ended on 

29 September 2023. The applications have been made within the 21-day period prescribed by 

s.394(2) of the FW Act.1  

 

[3] On 31 October 2023, the Respondent filed a Form F3 – Employer response to unfair 

dismissal application in relation to both applications (responses). The responses claimed that 

Mr Mifsud and Mr Webster have never been employees of the Respondent and that they were 

volunteers. This is a matter related to whether Mr Mifsud and Mr Webster are protected from 

unfair dismissal and as such, I am required to consider this before the merits of the applications 

by s.396(b) of the FW Act. 

 

[4] In summary, I have found that Mr Mifsud and Mr Webster were not employed by the 

Respondent and therefore are not protected from unfair dismissal. The applications are 

dismissed. 

 

[2024] FWC 853 

DECISION 


AUSTRALIA FairWork Commission




 



[2024] FWC 853 

 

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Directions conference 

 

[5] On 23 November 2023, the matters were listed for a case management conference. I 

made directions for the filing and serving of materials and set the matter down for determinative 

conference/hearing at 10:00am on 3 January 2024. 

 

[6] On 7 December 2023 Mr Mifsud and Mr Webster filed evidence and submissions. 

 

[7] On 21 December 2023 the Respondent filed evidence and submissions. 

 

[8] After taking into account the views of Mr Mifsud, Mr Webster and the Respondent, and 

whether a hearing would be the most effective and efficient way to resolve the matter, I 

considered it appropriate to hold a hearing in accordance with s.399 of the FW Act.  

 

Factual Background 

 

[9] The Fire and Rescue NSW Band (the FRNSW Band) formed in 1891. The Band 

receives funding from Fire and Rescue NSW (FRNSW) and performs at various events, such 

as ceremonies, parades, concerts, festivals, and community engagements, to promote FRNSW 

and its values.  

 

[10] On 26 May 2022, the Respondent was established when the FRNSW Band was 

incorporated at the request of FRNSW pursuant to the Associations Incorporation Act 2009 

(NSW). The Constitution of the Respondent relevantly provides at paragraph 3: 

 

Objects of the Association 

 

The objects of the Association are to: 

 

3.1 Promote the heritage, traditions and public image of Fire and Rescue NSW; 

 

3.2 Promote the presence of Fire and Rescue NSW and create public awareness in 

respect of fire safety; 

 

3.3  Provide appropriate music at Fire and Rescue NSW ceremonies, parades, 

marches and concerts and at other functions as may be determined by the 

Commissioner from time to time; 

 

3.4 Provide an entity to satisfy the musical ethos of the Association and its members; 

 

3.5 Provide venue, facilities and instruments for, and to conduct band practices and 

rehearsals; and  

 

3.6 Provide public relations support to Fire and Rescue NSW. 

 

[11] In relation to membership of the Respondent, paragraph 4 of the Constitution provides 

that if a person was a member of the unincorporated body immediately before registration of 

the Association, that person will be taken to be a member of the Association upon incorporation. 








[2024] FWC 853 

 

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In relation to the management of the Respondent, paragraph 16 of the Constitution provides 

that the business and management of the Respondent is vested in the Committee which 

comprises four office bearers and at least one ordinary member. Committee members are 

elected at an Annual General Meeting of the Respondent. 

 

[12] Paragraph 47 of the Respondent’s Constitution refers to the Band Protocol and provides 

as follows: 

 

47.1 The Band Protocol outlines the rules and requirements for a Band member. 

 

47.2 The Committee may from time to time, amend the Band Protocol as it sees fit. 

 

47.3 Any breach by a Band member of the Band Protocol will be deemed to be a 

breach by that member of this Constitution. 

 

[13] Mr Mifsud plays the sousaphone. Mr Mifsud explained that he had left school in 1984 

and commenced performing in the Army Reserve Band two years before that. In 1984, he 

commenced performing in the NSW Corrective Services Band.  In 1986, Mr Mifsud was invited 

to join the FRNSW Band because there were vacancies, and the FRNSW Band was looking to 

fill these vacancies in preparation for an overseas trip to the United States that was planned for 

1987. 

 

[14] Mr Webster plays the tenor horn. He started performing for the FRNSW Band in about 

2016 after seeing the FRNSW Band performing at a festival in Bowral. He became aware of a 

vacancy in the FRNSW Band through his father who knew the conductor. Mr Webster said he 

joined the FRNSW Band partly because it was a good band and partly because band members 

were paid. The conditions were more onerous than other bands he had been in such as the 

uniform, but this was balanced out by the payment. Mr Webster did not receive payment in any 

of the other bands he had performed in (including the Salvation Army band). Mr Webster 

received $15 per hour throughout the period that he performed with the FRNSW Band and said 

that it did not occur to him to ask for an increase to this rate. 

 

[15] Mr Mifsud submitted material in which he explained that there are generally two 

categories of bands. Community Bands are purely social and voluntary with no payment 

received whereas, in NSW Government Service Bands, members are paid for their time and 

service. Mr Mifsud says that the FRNSW Band is similar to other NSW Government Service 

Bands including the NSW Police Band, NSW Corrective Services Band and the NSW 

Ambulance Band. 

 

[16] Mr Mifsud said that when he was with the NSW Corrective Services Band he was paid 

an hourly rate for attending performances and rehearsals equivalent to the rate of pay received 

by a NSW Correctional Officer. Mr Mifsud produced a Facebook post dated 17 May 2021 by 

the Corrective Services NSW Band which stated that members of that band are employed on a 

casual basis pursuant to s.43(4) of the Government Sector Employment Act 2014 (NSW).  

 

[17] Mr Mifsud explained that when he first started in the FRNSW Band, there were at least 

six firefighters in the band who were paid the same hourly rate that he was. Mr Mifsud 








[2024] FWC 853 

 

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understood that prior to 1985, firefighters in the FRNSW Band accrued time in lieu in relation 

to time spent rehearsing and performing. This was changed to a regular hourly payment in 1985. 

 

[18] Mr Mifsud was initially invited to attend a Thursday night rehearsal at FRNSW 

headquarters at Chullora, then asked to attend an audition about a week later. He has attended 

weekly rehearsals ever since that time. Mr Mifsud first performed with the FRNSW Band in 

December 1986. 

 

[19] Mr Mifsud said that he was paid more to play in the NSW Corrective Services Band but 

it was more prestigious to play in the FRNSW Band. Mr Mifsud continued to perform in the 

Army Reserve Band, the NSW Corrective Services Band and the FRNSW Band until 1987. At 

that time, NSW Corrective Services said to Mr Mifsud that he needed to make a choice about 

which band he played in as both the NSW Corrective Services Band and the FRNSW Band 

required him to play on Anzac Day. Mr Mifsud decided to leave the NSW Corrective Services 

and Army Reserve Bands and stay in the FRNSW Band. 

 

[20] Mr Mifsud explained that the FRNSW Band was not his main source of income and that 

he worked for Telstra for 33 years until his position was made redundant in March 2016. At the 

time of the redundancy, Mr Mifsud was a Senior Project Manager. Since that time, he owned 

and operated a franchise for a short time and more recently has worked as a gardener and lawn 

mower for NDIS clients 2-3 days per week for the last 4-5 years.  

 

[21] Mr Webster is ordinarily employed as a Business Analyst and his main source of income 

comes from activities outside of the Band. Since 2016, he has mainly performed in the FRNSW 

Band but performed in another band about twice a year for some of that time. He said that 

members of the FRNSW Band were required to get permission to perform in other bands.  

 

[22] When Mr Mifsud started performing with the FRNSW Band in 1986, he received $10 

per hour for attending rehearsals and performances. This amount was eventually increased to 

$15 per hour. Mr Mifsud attended rehearsals every Thursday night apart from when the 

FRNSW Band had a break from rehearsals during the Christmas and Easter periods each year. 

The rehearsals took place from 8pm to 10pm. When band members attended performances, 

they met at the headquarters of FRNSW, now allocated at Greenacre, and a bus would transport 

them to and from the performance. Band members received the hourly rate of $15 from the time 

that the bus left Greenacre to the time it returned. 

 

[23] The FRNSW Band performed on Anzac Day, at firefighter graduation ceremonies, 

FRNSW’s annual ball, FRNSW stations, Christmas Carol events, car shows, with school bands 

and at community events. Prior to the COVID pandemic, the FRNSW Band were engaged 

privately from time to time to perform at shopping centres, private celebrations and for tourists 

at the Casino. The FRNSW Band also went on overseas trips every two to four years. The cost 

of these trips was subsidised by the income received from private engagements. The FRNSW 

Band also raised money for the trips through fundraising activities. Band members did not get 

paid when performing overseas, however many members used the opportunity of the subsidised 

airfare to extend their trips and have a holiday.   

 

[24] Prior to the COVID pandemic, the FRNSW Band usually performed on about 2-3 

occasions per month. In the last year, this has decreased to about one performance per month. 








[2024] FWC 853 

 

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The performances usually took place during the weekend, however firefighter graduation 

ceremonies usually occurred from 10am to midday on a weekday. Band members were 

expected to attend performances on the weekend but not during the week, unless they were 

available. When Mr Mifsud was working at Telstra, he was usually able to perform at firefighter 

graduation ceremonies as he would take a half day flex leave. Mr Webster did not attend the 

firefighter graduation ceremonies due to work commitments. 

 

[25] Mr Mifsud said that he attended about 98% of rehearsals and the only occasions that he 

did not attend was when he was sick. There were 35 band members and usually about 70% of 

them attended rehearsals at any one time. There was an expectation that band members attend 

at least 80% of rehearsals however it was ‘up to the individual at the end of the day’. The 

FRNSW Band never had any problems getting enough musicians for performances. Mr Mifsud 

said that the band master usually made announcements about upcoming performances at 

rehearsals and musicians would indicate their availability by a show of hands. 

 

[26] According to Mr Mifsud, after incorporation, the Respondent had greater expectations 

regarding attendance at rehearsals. There were concerns raised about poor attendance. There 

continued to be 70% of band members attending rehearsals however Mr Mifsud believed that 

the Respondent applied the Band Protocol inconsistently, with some members permitted to not 

attend while others faced action if they missed rehearsals. Mr Mifsud said there had been about 

three versions of the Band Protocol since he joined the band but the changes made to successive 

versions of the document were not significant. 

 

[27] Mr Webster said that attendance at rehearsal was compulsory and that band members 

were expected to be at most engagements. Most people were at rehearsals. He signed two Band 

Protocols during the period that he was a band member which stated that there was an 

expectation of 80% attendance. Mr Webster said that band members were told that they did not 

have to sign the Band Protocol but if they did not, they were not in the band. Mr Webster said 

that during each weekly rehearsal, there would be a break, during which announcements were 

made about performances and uniforms. Usually a list of upcoming performances was 

circulated to band members on a monthly basis by email. However if an organisation requested 

a performance at short notice, this was announced at rehearsals to ascertain the availability of 

band members. Mr Webster said band members were expected to attend all weekend 

performances apart from those which were organised at short notice.   

 

[28] Mr Webster said that after the FRNSW Band was incorporated, he became very unhappy 

as he felt that band members were not being looked after. During cross examination he accepted 

that he did not attend every rehearsal but also said that he did not always sign the attendance 

register. 

 

[29]  Mr Mifsud and Mr Webster both gave evidence that they did not receive a group 

certificate or payment summary from the Respondent and for this reason they did not declare 

the moneys received for playing in the FRNSW Band as income. Mr Mifsud said that he spoke 

to his tax accountant who advised that because the amount received was less than $10,000 per 

year and that Mr Mifsud could claim deductions against this amount, he would be likely to be 

declaring a loss in relation to this income. In these circumstances and because Mr Mifsud did 

not receive a payment summary, the tax accountant advised Mr Mifsud not to declare the 

amounts received. 








[2024] FWC 853 

 

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[30] As well as performing in the FRNSW Band, Mr Mifsud was the Band Librarian from 

December 1986. In October 1986, the person who was performing the Band Librarian role stood 

down and there was an invitation to all members of the Band to express interest in the role. No 

one expressed interest so Mr Mifsud, noting that there was an allowance paid in relation to the 

role indicated that he would like to do the role. There was a two month handover period so Mr 

Mifsud officially commenced in the role in December 1986. 

 

[31] Mr Mifsud explained that every year the Band had an AGM and at the AGM, the 

Librarian role was declared vacant and any member of the Band who wanted to perform the 

role could nominate. Mr Mifsud was usually the only person to express interest so he performed 

the role continuously from 1986. If more than one person had expressed interest, the AGM 

would determine who was to be appointed to the role by majority vote. After the Band was 

incorporated in May 2022, the appointment of the Librarian became a decision of the 

Committee. 

 

[32]  The duties of the Librarian comprised organising sheet music for each of the band 

members which included photocopying the music and collating it into folders. Mr Mifsud was 

allocated ten hours per month to carry out this role and could attend the Band room at FRNSW 

headquarters when it suited him to do the work, usually on weekends. Mr Mifsud said that he 

always received direction from the Band Conductor (who was like a Chief Executive Officer) 

in relation to what was required but that the Band Conductor ‘[did not] care when it [was] done.’ 

Mr Mifsud was paid a Librarian allowance of $15 per hour to do this work. In his written 

material, Mr Mifsud said he was also paid a retainer of $2000 per year. During busy periods, 

the FRNSW Band paid for Mr Mifsud to have an assistant for 5 hours per month who was also 

paid $15 per hour. From time to time, Mr Mifsud was allocated additional paid hours to get the 

work done.  

 

[33] When the Band was incorporated in 2022, the new Band Manager Mr Colin Druery 

restricted the ability of the Band members to attend the band room outside of rehearsal times. 

Mr Mifsud was informed at this time that he was required to perform Librarian duties from 

7pm-8pm on Thursday nights immediately before rehearsals commenced. On 24 August 2023 

the Band Committee unanimously agreed that Mr Mifsud should relinquish the Librarian 

position. 

 

[34] In relation to Librarian duties, the Band Protocol states: 

 

5.20 The Librarian duties shall be to keep a record of the music library, ensure the 

safe keeping and good condition of the same and to make instrumental parts 

available to members as required. In the capacity of Librarian, they will work in 

close co-operation with the Musical Director. 

 

5.21  Nominations for the position of Librarian shall be called at the AGM from 

persons interested in holding the position for the coming 12 month period or 

may be appointed by the Association. At their first meeting, the Association 

Band Committee will appoint the Librarian from those that nominated at the 

AGM. The position is declared vacant, and if there are no other interested 








[2024] FWC 853 

 

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persons, the current holder may remain in the position or an alternate appointed 

by the Association. 

 

[35] The most recent Band Protocol signed by Mr Mifsud and Mr Webster relevantly 

provided:  

 

MEMBERSHIP  

 

6.1. Membership of the Band shall be limited to a maximum number of forty (40) 

playing members (including percussionists) 

 

6.2  Application for membership of the Band is open to persons eighteen (18) years 

of age and over, having music ability to satisfactory perform with a Brass band, 

an ability to work harmoniously in a band situation, and a physical capability of 

marching and carrying out other duties associated with the functions of the band. 

 

6.3  A vacancy of any position in the band shall be declared by the Musical Director. 

 

6.4  Application for membership of the Band shall be made in person to the 

Secretary/Manager. The application should contain an undertaking to observe 

such rules that may be applied to the Fire and Rescue NSW from time to time. 

 

6.5  All applicants will be assessed by way of audition and must meet a standard 

satisfactory to the Musical Director or persons delegated by the Musical Director 

to carry out that functions. 

 

6.6  Before appointment to the Band is confirmed, the applicant shall first be invited 

to ‘sit in’ with the Band at rehearsals for at least two (2) consecutive rehearsals. 

The prospective member will then be appointed on six (6) months probation, at 

the end of the which period, the Musical Director shall determine the musical 

ability, punctuality, deportment and attendance. On this information, the 

Musical Director and Secretary/Manager will make a decision on full 

membership of the member. 

 

6.7  A Band member shall achieve a minimum 80% attendance of band hours for 

rehearsals and band engagements, assessed on aggregate of both within any 

twelve (12) month period, not including normal annual and sick leave. 

 

6.8  Failure to meet the minimum standard of attendance will require the member to 

show cause to the Musical Director and Secretary/Manager why his [sic] 

appointment to the band should not be terminated. 

 

6.9  Absences incurred by illness shall not be recorded against a member provided 

the cause is legitimate. 

 

6.10  Notices of intended absences of approved leave shall be given to the Musical 

Director not less than two (2) weeks before it is due. 








[2024] FWC 853 

 

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6.11  A Band member may apply to the Musical Director and Secretary/Manager for 

a leave of absence not exceeding six (6) months without renewal. 

 

6.12  A Band member shall be expected to give first loyalty to the Fire and Rescue 

NSW Band in respect to musical activities. Absences because of commitments 

to other musical or recreational pursuits will not be acceptable unless authorised 

by the Musical Director. 

 

6.13  It is the duty of every member to obey promptly and willingly, all lawful 

instructions and orders given at any time by the person in charge of the Band. 

 

6.14  Members of the Band shall submit to the disciplines of the Band in rehearsal 

and at engagements. Breaches of discipline will be dealt with by the Association 

Committee and/or the Musical Director and Secretary/Manager. Repeated 

breaches could result in dismissal from the Group should the Association 

Committee or Musical Director and Secretary/Manager feel such action is 

warranted. Members should conduct themselves in such a manner as not to 

bring discredit on the service by unacceptable behaviour. 

 

6.15  Any part of the Band uniform shall not be worn by a member at rehearsal, when 

on leave or when off duty other than when travelling to or returning from Band 

engagements unless otherwise determined by the Musical Director. 

 

6.16  Applications for membership of the band give permission for the Association 

to obtain Police Probity Check prior to acceptance of the person as a member. 

 

…. 

 

HONORARIUMS 

 

14.1 Members of the group are recompensed in accordance with rates of pay as 

determined by the Executive Officer 

 

The following offices shall be paid a special rate determined by the Executive 

Officer: 

• Bandmaster/Musical Director 

• Secretary/Manager 

• Assistant Secretary Manager 

• Librarian 

• Public Relations Officer 

 

14.2  Attendance at rehearsals and engagements is recorded by the 

Secretary/Manager, or person delegates, on an attendance sheet. Ex gratis 

payments are made from these records monthly. Each member is to be given a 








[2024] FWC 853 

 

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pay envelop or appropriate notification of hours credited for the month, rate of 

remuneration and the amount. Members are entitled to request to view their 

times and amounts by approaching the Secretary/Manager. 

 

14.3  Should any monies be owed to General Funds by a member (e.g. spouse 

accommodation, return of uniform or equipment etc) such monies will be 

deducted from the members’ monthly remuneration. The amount deducted will 

be clearly shown on the remuneration advice. 

 

 

  …… 

 

 

[36] On 29 September 2023, Mr Mifsud and Mr Webster were advised that the Committee 

met on 29 September 2023 and unanimously resolved to expel them from the Respondent under 

Clause 14 of the Constitution, with immediate effect. Clause 14 of the Constitution makes 

provision for the disciplining of members. It provides that a complaint can be made to the 

Committee by any person that a member of the Respondent has engaged in specified conduct. 

It outlines the process that the Committee is required to follow in dealing with the complaint. 

It states the action that the Committee can take after following the process which includes 

expelling the member at 14.4.4. There is a right to appeal against action taken by the Committee 

to a general meeting of the Respondent. 

 

Legislation 

 

[37] Section 396 of the FW Act requires the Commission to decide a number of matters 

relating to an application for an order under Division 4 before considering the merits of the 

application including whether the person is protected from unfair dismissal. 

 

[38] Section 382 of the FW Act provides: 

382 When a person is protected from unfair dismissal 

                   A person is protected from unfair dismissal at a time if, at that time: 

                     (a)  the person is an employee who has completed a period of 

employment with his or her employer of at least the minimum 

employment period; and 

                     (b)  one or more of the following apply: 

                              (i)  a modern award covers the person; 

                             (ii)  an enterprise agreement applies to the person in relation to the 

employment; 

                            (iii)  the sum of the person’s annual rate of earnings, and such other 

amounts (if any) worked out in relation to the person in 

accordance with the regulations, is less than the high income 

threshold. 

 

[39] The issue between the parties is whether Mr Mifsud and Mr Webster were employees 

as required by s.382(a) of the FW Act. Section 380 states that an employee means a national 








[2024] FWC 853 

 

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system employee as defined by s.14 of the FW Act. Section 30D extends the meaning of 

national system employer to include any person in a State that is a referring state so far as the 

person employs or usually employs an individual. 

 

Submissions 

 

Mr Mifsud and Mr Webster 

 

[40] Mr Mifsud and Mr Webster relied on the following matters in support of their contention 

that they were employees: 

 

• They were paid $15 per hour in cash for rehearsals and performances. Mr Mifsud was 

paid a Librarian allowance of $150 per month in cash and a retainer of $2000 per year 

by cheque. The cash payments were made monthly in a pay envelope summarising the 

total amount of hours worked during the preceding month. 

• Mr Mifsud and Mr Webster were required to sign a Band Protocol in July 2023 after the 

Band was incorporated in May 2022 as a condition of remaining in the Band. 

• They were required to sign an attendance sheet at each rehearsal as a condition of being 

paid. 

• Clauses 6.7 and 6.8 of the Band Protocol provide that there is a clear expectation of 

attendance. If attendance drops to below 80%, band members appointments may be 

‘terminated’. This clearly suggests employment status. Clause 6 of the Respondent’s 

Constitution provides that a person ceases to be a member of the Respondent if the 

person does not achieve a minimum 80% attendance of band hours for rehearsals and 

engagements. This further supports the submission that Mr Mifsud and Mr Webster are 

employees as there is a minimum requirement for attendance. If they were volunteers, 

there would be no such obligation. 

• The reference to annual and sick leave entitlements, also implies employment status.  

• The requirements in Clause 6.9 of the Band Protocol, in relation to absences due to 

illness suggests an employee-employer relationship. A volunteer does not need to 

substantiate personal illness or be requested to provide any such supporting 

documentation to validate illness preventing attendance at work. Furthermore, all band 

members have been instructed to notify the Band Manager via SMS when they are 

unable to attend rehearsals and/or performances. 

• Clauses 6.10 and 6.11 of the Band Protocol refer to leave which strongly suggests 

employment status. A volunteer would not be required to apply for leave. 

• Clause 6.12 states that members are expected to show loyalty towards the Fire and 

Rescue NSW Band, and prohibits unauthorised absences from band due to ‘other 

musical or recreational pursuits’. Clause 6.13 requires band members to obey all 

instructions given to them promptly and willingly. These obligations are suggestive of 

an employee relationship. 

• The provision of uniforms, the requirement to wear specific uniforms on particular 

occasions and the ability of the Band leadership to reprimand employees for not 

adhering to the uniform requirements are all matters which establish an employment 

relationship. 

• The Respondent: 

o determines the venue, date, time and duration for each performance.   

o provides free transport from the Band headquarters to performances.  








[2024] FWC 853 

 

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o provides free overnight accommodation with most meals provided at no cost 

when required to participate in various long-distance travel to NSW/Interstate 

Country Festival Venues. 

o provides all necessary equipment to Band employees including uniforms, which 

they are required to wear when attending performances, and also issues 

Instruments. 

• On 18 June 2022 Mr Colin Druery sent an email to Mr Webster in which he stated that 

‘Members of the Association can therefore receive reasonable remuneration for services 

rendered to or for the Association.’ The reference to ‘services rendered’ suggests that 

the payment was wages for services performed as an employee. 

• Mr Mifsud produced a trial balance of the Respondent for the eleven month period from 

1 July 2022 to 31 May 2023. The trial balance showed that grant income for this period 

was $180,000 and payments to volunteers were $163,000. Mr Mifsud and Mr Webster 

submit that it is clear from this evidence that payments for band labour is not only 

significant, but also the grant's main purpose. If the band was truly a community band 

filled with volunteers as they claim, the ‘payments to volunteers’ would be a 

significantly smaller percentage of total outgoings. 

 

The Respondent 

 

[41] The Respondent submitted that since its inception, the Band members have always been 

regarded as volunteers who give their time to promote the heritage, traditions and public image 

of Fire and Rescue NSW. As time progressed the NSW Fire Brigade and then later Fire and 

Rescue NSW has provided a yearly grant to the band to pay for instruments, uniforms, travel 

costs and other ancillary costs that allow the Band to play at a schedule of FRNSW events and 

occasional other events. The largest costs to come out of this grant is the honorariums for the 

musicians to help cover their costs. These honorariums are prescribed through a Service Level 

Agreement with FRNSW. 

 

[42] All band members sign the Band Protocol. This Protocol has never had any legal intent 

to be a contract of employment. Rather it is in place so that all Band members know what is 

required of them as volunteer members of the Band. The Protocol outlines the Mission of the 

Band and the structure of the Incorporated Association as well as membership and 

responsibilities. Clause 13 outlines Honorariums/Pay and Clause 13.3 states attendance at 

rehearsals and engagements is recorded by the Manager or the person delegated to do so, on an 

attendance sheet. 

 

[43] Ex-gratis payments are made from these records monthly. An ex-gratia payment is 

considered voluntary because the party making the payment is not obligated to compensate the 

individual. 

 

[44] The Respondent has no employment contracts with any members of the FRNSW Band 

and the band members are not employed under a modern award or an enterprise agreement. The 

Respondent does not deduct income tax payments, superannuation or any other deductions from 

these ex-gratia payments as they are not regarded as wages or salary but voluntary payments to 

cover the costs of the Band members. 

 








[2024] FWC 853 

 

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[45] The legal intent of the Protocol is to provide the mission of the Band and structure and 

directions on how to achieve this; it has never been considered as any form of employment 

contract. 

 

Consideration 

 

[46] I have considered the submissions made by the parties and all the evidence in my 

determination of this matter and the conclusions I have reached. 

 

[47] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting 

Pty Ltd (CFMMEU)2 and ZG Operations Australia Pty Ltd v Jamsek (ZG Operations)3 are the 

most recent High Court authorities in relation to the employment relationship. 

 

[48] These cases held that where the parties’ relationship was comprehensively committed 

to a written contract, the validity of which was not challenged as a sham, and the terms of which 

were not varied, waived or the subject of an estoppel - the question of whether a person was an 

employee or an independent contractor was to be resolved solely by a consideration of the terms 

of the contract and not by reference to performance of the contract.4 

 

[49] Where the terms of the relationship between the parties has not been committed 

comprehensively to a written agreement, the characterisation of a relationship as being either 

one of employment or one of principal and independent contractor is to be determined by 

reference to “the totality of the relationship between the parties”.5 In examining the totality of 

the relationship between the parties, relevant matters include whether the putative employee’s 

work was so subordinate to the employer’s business that it can be seen to have been performed 

as an employee of that business rather than as part of an independent enterprise6 and the 

existence of a right of control by a putative employer over the activities of the putative 

employee.7 

 

[50] Other matters which may be relevant in determining the nature of the relationship 

include the mode of remuneration, the provision and maintenance of equipment, the obligation 

to work, the hours of work, the provision for holidays, the deduction of income tax and the 

delegation of work.8  

 

[51] In the current case, the dispute is not whether Mr Mifsud and Mr Webster performed 

work for the FRNSW Band as employees or independent contractors, but rather whether Mr 

Mifsud and Mr Webster were employees or volunteers.  

 

[52] It is well established that an employment relationship exists only where a person agrees 

to perform work pursuant to a ‘contract of service’ or contract of employment. If there is no 

contract of employment identified between the parties, then Mr Mifsud and Mr Webster cannot 

be employees of the Respondent.9  

 

[53] Numerous decisions of this Commission refer to the basic essential requirements for an 

agreement to be legally enforceable as a contract as being: 

 

• The parties must have reached agreement as to the terms of the contract.  

• The agreement must involve the provision of “consideration” by each party.  








[2024] FWC 853 

 

13 

• The agreement must be intended by the parties to be legally enforceable.  

• The terms of the agreement must be certain and complete and there must be no element 

of illegality or any other vitiating factor that would deprive the agreement of legal 

effect.10 

 

[54] Prior to the Respondent being incorporated on 26 May 2022, the FRNSW grant money 

that was used to pay band members was administered by the Band Manager and Conductor. Mr 

Mifsud submits that he was an employee of the FRNSW Band from October 1986. However 

this is not possible because at that time, the FRNSW Band was not a legal entity, but a group 

of individuals who were led by the Band Manager and Conductor.   

 

[55] Mr Mifsud and Mr Webster do not allege that prior to 26 May 2022, their employer was 

the Band Manager and/or Conductor, or any other person. There is no evidence before me which 

establishes that there was a contract of employment between each of Mr Mifsud and Mr 

Webster and another legal person. I have therefore considered the matter on the basis that the 

alleged employment relationship commenced when the FRNSW Band was incorporated on 26 

May 2022.  

 

[56] The effect of incorporation appears to be that Mr Mifsud and Mr Webster became 

members of the Respondent on 26 May 2022 as existing band members were regarded as 

members of the ‘unincorporated body’ immediately before registration of the Respondent and 

as such were taken to be a members of the Respondent upon incorporation under paragraph 4 

of the Constitution. The Constitution does not appear to limit membership of the Respondent 

to band members only, however it appears from reading both the Band Protocol and 

Constitution together that all band members are members of the Respondent. 

 

[57] Mr Mifsud and Mr Webster claim that the contract of employment is the Band Protocol. 

The Band Protocol has been revised a number of times since Mr Mifsud and Mr Webster have 

been members of the FRNSW Band and existed prior to the Respondent being incorporated. 

Mr Webster’s evidence is that he signed two Band Protocols, whereas Mr Mifsud said he had 

signed about three Band Protocols. Mr Mifsud’s evidence was that the changes that have been 

made to the various versions of the Band Protocol over the years have not been significant. The 

most recent version of the Band Protocol which is in evidence came into existence after the 

FRNSW Band was incorporated.  

 

[58] The Band Protocol is referred to in the Respondent’s Constitution. The Constitution 

provides that the Band Protocol outlines the rules and requirements for a Band member, that 

the Committee may from time to time amend the Band Protocol as it sees fit and that any breach 

by a Band member of the Band Protocol will be deemed to be a breach by that member of the 

Constitution. Mr Mifsud has raised issues in relation to the validity of the Constitution however 

there is no evidence before me that establishes the Constitution is invalid. 

 

[59] On the face of the document, the Band Protocol is not a contract of employment. It is 

not the product of a negotiation between each of Mr Mifsud and Mr Webster and the 

Respondent which has resulted in an offer being made by the Respondent which has been 

accepted by Mr Mifsud and Mr Webster.  

 








[2024] FWC 853 

 

14 

[60] The Band Protocol is an instrument created by the Respondent pursuant to paragraph 47 

of the Constitution. Its purpose is to outline the rules and requirements for each band member. 

It was devised, apparently without input from its members, and presented to members as an 

obligation of joining or remaining in the Band. As the Constitution permits the Committee to 

amend the Band Protocol from time to time, the Respondent is able to do this unilaterally. This 

is different to a contact of employment, which can only be varied by agreement between the 

parties. According to the evidence, Mr Mifsud and Mr Webster and other Band members were 

informed that there was no obligation to sign the Band Protocol, but if they did not, they could 

not be in the Band. 

 

[61] The Band Protocol refers to ‘membership’ of the Band, not employment. It provides for 

‘honorariums’ rather than wages. Whether an agreement is intended by the parties to be legally 

enforceable depends upon the objective intentions of the parties.11 The evidence shows that it 

was the intention of the Respondent to create a legal entity to satisfy the funding requirements 

of FRNSW and for band members to participate in the Band as members of the Respondent 

rather than employees. Both Mr Mifsud and Mr Webster had performed in bands before joining 

the FRNSW Band. They both clearly have a love for music and performance. Mr Mifsud said 

that the FRNSW Band was more prestigious than other bands that he had performed in and Mr 

Webster spoke of wanting to be in the FRNSW Band because it was regarded as a good band. 

Although Mr Webster was partly attracted to playing in the Band because of the payment 

provided, both Mr Webster and Mr Mifsud confirmed that the playing in the Band was not their 

major source of income. They both worked in roles outside of the music and live performance 

industry. The Respondent produced evidence that shows Mr Mifsud was paid $2,460 for the 

2021/2022 financial year and $3,510 for the 2022/2023 financial year and further that Mr 

Webster was paid $855 and $1,455 for the same periods. 

 

[62]  There is no evidence that supports a finding that Mr Webster and Mr Mifsud each 

commenced playing in the band with the intention of entering into a legally enforceable 

contract. Further this is simply not possible given that the Band was not a legal entity until May 

2022. There is no evidence that at the time of incorporation, Mr Webster and Mr Mifsud decided 

at that stage that they would enter into a legally enforceable contract with the Respondent or 

that there was any negotiation between each of them and the Respondent in relation to terms 

and conditions of employment. 

 

[63] In relation to Mr Mifsud’s role as Librarian, Mr Mifsud’s evidence was that a person 

was ‘elected’ to this position at every AGM until incorporation, then a person was appointed to 

this position by the Committee. Clause 5.2.1 of the Band Protocol provides that nominations 

for the position of Librarian will be called for at the AGM from persons interested in holding 

the position for the coming twelve month period or may be appointed by the Respondent. Since 

at least 1986, the role of Librarian was treated by both the FRNSW Band (then the Respondent 

when it came into existence) and Mr Mifsud as an office rather than an employee. 

 

[64] Mr Mifsud ceased being the Librarian when he was removed from that position by the 

Committee on 23 August 2023. Mr Mifsud and Mr Webster ceased performing in the FRNSW 

Band when they were expelled as members from the Association under Clause 14 of the 

Constitution. Although there is a dispute between the parties about whether the expulsion was 

justified or warranted, there is a clear power under the Constitution for the Respondent to expel 

members. It is this power that the Respondent relied upon in removing Mr Mifsud and Mr 








[2024] FWC 853 

 

15 

Webster from the FRNSW Band. The Respondent did not purport to terminate the employment 

of Mr Mifsud and Mr Webster. 

 

[65] I accept the submissions of Mr Mifsud and Mr Webster that some of the obligations 

under the Band Protocol are akin to the obligations of an employee towards their employer. 

These include requirements in relation to attendance, following directions, taking leave and the 

wearing of a uniform. I also accept that the payment of expenses, and provision of equipment 

(such uniforms and instruments) are common features of an employment relationship.  

 

[66] However, there were aspects of the arrangement which were inconsistent with the 

existence of an employment relationship, such as the payment of honorariums rather than wages 

and the fact that these payments were not declared to the Australian Tax Office by either Mr 

Mifsud or Mr Webster. The honorariums were set at a fixed rate which did not increase for 

many years and were significantly less than the amount that would be paid to Mr Mifsud or Mr 

Webster if they were employees. In this regard, I note that the minimum hourly rate for a casual 

musician in Clause 40.1 of the Live Performance Award 2020 is $59.41. The quantum of the 

honorarium was determined by the Executive Officer under Clause 14.1 of the Band Protocol. 

It was not subject to negotiation in the way that remuneration would be in an employment 

relationship. 

 

[67] The Respondent did not deduct tax from the payments or pay superannuation. The 

expected attendance rate at rehearsals was 80%, not including leave. This is in contrast to an 

employee who would be expected to attend work if not taking approved leave and would be 

likely to face disciplinary action in circumstances of any absences while not on approved leave. 

There was also evidence that although employees were expected to advise the Respondent if 

they were not attending a rehearsal, this did not always occur which is inconsistent with the 

usual expectations of an employment relationship. 

 

[68] In any event, matters which may be indicia of an employment relationship are of no 

consequence if the existence of a contract of employment cannot be established. 

 

[69] In my view the only aspect of the relationship between the parties which supports a 

contractual relationship was the provision of ‘consideration’ by each party. This requirement 

was met by the Respondent’s payment of $15 per hour to Mr Mifsud and Mr Webster for 

rehearsals and performances and the payment of $15 per hour and a $2000 annual retainer to 

Mr Mifsud in relation to Librarian duties.  

 

[70] However I do not accept that the parties reached agreement as to the terms of the 

contract, that the terms of the agreement are certain and complete and that the agreement is 

intended by the parties to be legally enforceable. This is because Mr Mifsud or Mr Webster rely 

upon the Band Protocol as being the contract in circumstances where the Band Protocol is an 

instrument created by the Respondent under the Constitution which can be unilaterally varied 

and which applies to members rather than employees. In my view the Band Protocol is not a 

contract between each of Mr Mifsud and Mr Webster and the Respondent. Mr Mifsud and Mr 

Webster have not pointed to any other written documents or verbal agreements that they say 

constitutes a contract of employment. 

 

Conclusion  








[2024] FWC 853 

 

16 

 

[71] As I have found that the basic requirements for an agreement to be legally enforceable 

as a contract have not been met, it follows that there was no contract of employment between 

each of Mr Mifsud and Mr Webster and the Respondent. Mr Mifsud and Mr Webster were 

therefore not employees of the Respondent and are not protected from unfair dismissal. I 

dismiss the applications, but in doing so, wish to make some final observations in relation to 

the applications.  

 

[72] The circumstances that bring these matters before the Commission are most unfortunate. 

It appears that problems started to emerge in the FRNSW Band after it was incorporated as a 

requirement of receiving ongoing funding from FRNSW. Given that FRNSW is a NSW 

government agency, it is likely that the requirement for incorporation was to ensure that the 

funds it provides to the FRNSW Band were accounted for in accordance with contemporary 

governance and compliance standards.  

 

[73] There were always rules and requirements that Band members were required to follow 

in relation to attendance, rehearsals and uniform in various versions of the Band Protocol. 

However, with incorporation came a Committee which had powers that previously were not 

able to be exercised by the FRNSW Band leaders. These powers were used to expel Mr Mifsud 

and Mr Webster from the Band. For Mr Mifsud, this ended a 37 year association with the Band 

which started soon after he left school. Whatever the reasons for the expulsion, it is likely that 

it caused significant distress to both Mr Mifsud and Mr Webster. While it may be 

understandable that Mr Mifsud and Mr Webster wish to challenge the decision to expel them 

the Commission is not the appropriate forum, given my findings that Mr Mifsud and Mr 

Webster were not employees. However these findings should not be construed by the 

Respondent or FRNSW as endorsing their approach to engage band members as volunteers. 

 

[74] The FRNSW Band has a long history and has been financially supported by FRNSW 

for many years. It is clear from the objects of the Respondent’s constitution that the FRNSW 

Band plays an essential role in promoting FRNSW, creating public awareness in respect of fire 

safety and performing at FRNSW ceremonies, parades, marches and concerts and at community 

functions. This is highly skilled, valuable and important work and raises the question of whether 

it is appropriate to have volunteers undertaking such work particularly as other NSW 

Government agencies have adopted an employment model with respect to the engagement of 

band members. At a time that FRNSW has sought to modernise the structure of the FRNSW 

Band, it may be appropriate to review its approach to the remuneration and engagement of its 

musicians, without whom the FRNSW Band would not be able to continue making its 

significant contribution to FRNSW and the wider community. 

 

 
 


OF THE FAIR WORK L MISSION THE SEA




 



[2024] FWC 853 

 

17 

DEPUTY PRESIDENT 

 
Appearances: 
 
Mr Mifsud and Mr Webster for the Applicants 
 
Mr Claxton and Mr Day for the Respondent 
 

 
Hearing details: 
 

2024 

January 3 

Sydney 

 

 
Final written submissions: 
 

2024 

January 11 

 

 

Printed by authority of the Commonwealth Government Printer 

 

PR773132 

 
1 Mr Mifsud’s application was made on 14 October 2023. Mr Webster’s application was made on 18 October 2023. 

2 [2022] HCA 1. 
3 [2022] HCA 2. 
4 CFMMEU [2022] HCA 1, [43]; ZG Operations [2022] HCA 2, [8]. 
5 CFMMEU [2022] HCA 1, [34]; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 29; Hollis v Vabu Pty Ltd 

(2001) 207 CLR 21, 33 [24].    

6 CFMMEU [2022] HCA 1, [39]. 
7 CFMMEU [2022] HCA 1, [42]; Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 41-45 [47]-[57]. 

8 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 24.   
9 Adam Barbour v Memtaz Derbas T/A Derbas Lawyers [2021] FWC 1718, [67]. 

10 See for example Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club [2011] FWA 1143; 

Mark Pitt; Sharon Campione v The Scout Association of Australia Queensland Branch [2021] FWC 63, approved on appeal 

in [2021] FWCFB 1241; Adam Barbour v Memtaz Derbas T/A Derbas Lawyers [2021] FWC 1718. 

 

 

11 Teen Ranch Pty Ltd v Brown (1995) 87 IR 308, 310. 






https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc1718.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa1143.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc63.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1241.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc1718.htm

Cases cited by this decision: