Volunteer coach attracts employee protections

The recent decision of Wieland v Return to Work[1] confirms that volunteers can be considered employees and attract the relevant employee protections.

The South Australian Employment Tribunal (SAET) has found that a volunteer coach with Basketball SA was in fact an employee and therefore entitled to compensation for an injury she suffered in the performance of her duties.

What role did the Applicant play?

The SAET noted that the Applicant, Ms Lynette Wieland, had a long association with the sport of basketball and performed a range of roles for Basketball SA. Analysing the engagement, Deputy President Judge Gilchrist concluded that the Applicant had "four distinct relationships" with Basketball SA, namely:

• a referee coordination role that involved rostering referees, referee coaches and court supervisors for basketball matches;
• referee coach and court supervisor roles (which she frequently rostered herself on to perform); and
• the role of Score Table Commissioner.

The Applicant received a fixed payment of $500 as an "honorarium" per-season in relation to each role.

As a referee coach, the Applicant also received payment of $15 per game for junior games and $20 per game for senior games. She also received $12 per hour plus $1 per game in her capacity as court supervisor and it was noted by the Tribunal that she would supervise multiple games at any one time. These payments were made to the Applicant in cash. No tax was withheld and the Applicant did not declare any of the money as income for taxation purposes.

The Facts

On 15 November 2017, the Applicant attended at the Titanium Security Arena to participate in a quarterly meeting of the Commissioners. She had rostered herself on as a referee coach for the evening and was due to commence in that capacity after the meeting. However, the Applicant fell and suffered an injury as she walked from the meeting to the entrance of the arena.

The Applicant asserted that this was a compensable injury under the Return to Work Act 2014 (SA). Therefore, the relevant question for the SAET was whether the Applicant was injured "in the course of employment". To prove she was not just a volunteer, the Applicant was required to demonstrate that there was a mutual intention between the parties to create a legally enforceable contractual relationship.

Was there a mutual intention to contract?

In undertaking an analysis of the Applicant's engagement, the SAET had regard to the High Court's decision in Ermogenous v Greek Orthodox Community of SA Inc[2] where the Court stated that the search for the intention to create legal relations requires an objective assessment of the state of affairs between the parties. It was therefore not decisive that Basketball SA had characterised the Applicant as a "volunteer".

After examining several further authorities concerning the employee/volunteer distinction, the SAET noted that Basketball Australia is a not-for-profit organisation of the kind that "would be expected to attract and be supported by volunteers". However, Justice Gilchrist continued, "Basketball SA does not rely exclusively on volunteers. It employs people."

With respect to the Referee Coordination and Score Table Commissioner roles, the SAET concluded that the Applicant was "acting as a genuine volunteer" and the honoraria that she received for those positions were "genuinely gratuitous and were not intended to be a quid pro quo for the work done".

Conversely, in the roles she performed as a court supervisor and a referee coach, there was a direct correlation between the amount paid and the work performed. Moreover, according to Justice Gilchrist, those amounts were "not trifling". The work was regular and, although modest, the payments bore a resemblance to a casual rate of pay. Significantly, the SAET concluded at [14]:

I do not think that when Ms Wieland worked for Basketball SA as a referee coach and a court supervisor she did so just for the love of the game. Her performance of these duties involved a regular and serious incursion into her own leisure time. I think she expected to be paid for it and although Basketball SA might not have believed that it was contractually bound to do so, I think it felt obliged to pay her as a quid pro quo for the work that she did.

Therefore, in accordance with the objective theory of contract, the SAET concluded that a "mutual intention to create contractual relations" existed between the parties. When she fell and suffered an injury, the Applicant was performing work pursuant to a contract of service as a referee coach and was entitled to compensation under the applicable legislation.

What are the implications of this decision?

While this decision concerned the Applicant's eligibility to receive compensation under the South Australian workers' compensation regime, the Tribunal's findings may have broader implications for other not-for-profit organisations and the categorisation of individuals who provide their services on a "voluntary" basis. This is because there is no statutory or other binding definition of volunteer, such that courts and tribunals must have regard to the decided cases in arriving at a concluded view.

At a high level, the usual features of a voluntary relationship may be summarised as follows[3]:

• a person enters into any service of their own free will, or offers to perform a service or undertaking for no financial gain;
• the commitments shared between the parties are usually considered moral in nature, rather than legal; and
• payments or benefits unrelated to hours of work or the actual performance of work will not normally by themselves imply that a person is an employee.

Overall, the payment of an hourly rate that resembled a casual rate of pay would appear to have been determinative in this matter.

Inconsistent Case Law

There is an unsatisfactory lack of coherence in the decided cases, which is further complicated by determinations such as the Australian Taxation Office's Class Ruling 2012/35. In that ruling, the ATO concludes that football umpires engaged by AFL Riverina Incorporated who receive a travel allowance and match fees not generally exceeding $155 per game are "hobbyists" (rather than employees) whose income is not assessable for income tax purposes.

The Victorian Civil and Administrative Tribunal decision in Eastern Football League v Commissioner of State Revenue (Taxation)[4], which determined that the relationship between the league and its umpires was not one of employer/employee, further muddies the waters. Neither of these decisions, nor the 2016 Fair Work Commission decision of Grinholz v Football Federation Victoria[5] finding that a coach in receipt of a $6,000 per-season honorarium was a legitimate volunteer, were considered by the SAET.

Steps you can take to protect your organisation

The common law recognises that a great deal of voluntary work is performed for community, charitable or sporting organisations with no thought of any legal relations being created. With that in mind, not-for-profit organisations can take additional steps to protect themselves when engaging volunteers, including by:

• the use of volunteer "agreements" that define the relationship as a voluntary one (though this will not be determinative);
• formulating the amount of an honorarium as an amount to subsidise the cost of participation in the activity (e.g. travel, the need to purchase equipment such as a uniform, etc.) and without reference to hours of work; and
• making payments of any honorarium as a lump sum rather than periodically.

A note on for-profit businesses

For completeness, the circumstances in which a for-profit business can use volunteers are far more confined than for non-profit organisations. Generally, such arrangements are not lawful unless they form part of a genuine vocational placement or are otherwise intended to provide a learning experience to the volunteer, eg school students undergoing work experience. The performance of productive work for a for-profit entity, particularly over an extended period, will almost always denote the existence of an employment relationship.

1 SA [2018] SAET 190 2 (2002) 209 CLR 95. 3 McDonald [2016] FWC 300 at [32]. 4 [2006] VCAT 233. 5 [2016] FWC 7976