In Williams v Sydney Gay & Lesbian Business Association  FWC 4399 the applicant commenced proceedings alleging he had been the subject of unfair dismissal when he was ‘relieved of his volunteer duties’ with the Sydney Gay & Lesbian Business Association. The application was dismissed as Mr Williams refused to take part in the proceedings of the Commission. In the course of dismissing the application Deputy President Sams said (at ) ‘it must be observed that the jurisdictional objection of the respondent concerning the status of the applicant, as a volunteer, was almost certainly bound to succeed’. In support of that proposition the Deputy President referred to the decision in Grafton v NSW State Emergency Service  FWC 4057 and it is that case that I will now discuss.
In Grafton’s case, the applicant made an application for orders relating to alleged ‘unfair dismissal by NSW State Emergency Service (NSW SES).’ The applicant, Mr Grafton, was a volunteer with ‘the Canterbury and Marrickville SES Units’ (). The SES objected to the Fair Work Commission’s jurisdiction on two grounds. One was that the SES was not a ‘national system employer’. The other was that Mr Grafton was not an employee and the unfair dismissal provisions only apply between employer and employee.
With respect to the first ground the Fair Work Commission is established by the Fair Work Act 2009 (Cth). The Commonwealth is a parliament of limited jurisdiction and can only make laws within the areas permitted by s 51 of the Australian Constitution. To bring employers within the jurisdiction of the Fair Work Commission there has to be a link to a Commonwealth power, most usually the power of the Commonwealth to make laws with respect to corporations (s 51(xx)). The Fair Work Act only applies to national system employers. A ‘body established for a public purpose by or under a law of a State or Territory…’ is not a national system employer. At  Deputy President Dean said:
The NSW SES, established in 1955, is a New South Wales State Government Agency and is operated under the State Emergency Service Act 1989. I am therefore satisfied that it is not a national system employer. It follows that Mr Grafton cannot be a national system employee.
Mr Grafton’s application was dismissed.
The consequence of finding that the NSW SES is not a national system employer is that a staff member of the SES cannot seek a remedy for unfair dismission from the Fair Work Commission. If they were dismissed, and if they did think it was unfair, they would have to look to the NSW Industrial Relations Commission for any remedy.
Interestingly the Deputy President did not address Mr Grafton’s volunteer status. That is the application was not dismissed because he was a volunteer but because the SES was not a national system employer. Whether Mr Grafton could allege unfair dismissal was not tested because even if he could claim unfair dismissal, he could not do it before the Fair Work Commission. It follows that this case does not support Deputy President Sams conclusion that ‘the jurisdictional objection of the respondent concerning the status of the applicant, as a volunteer, was almost certainly bound to succeed’.
Deputy President Sams also relied on Grinholz v Football Federation Victoria Inc  FWC 7976. That case also involved a volunteer seeking a remedy for unfair dismissal. In that case the objection to the Commission’s jurisdiction was upheld because the applicant ‘was a volunteer and not an employee’ ().
It is no surprise that a volunteer cannot bring an action for unfair dismissal under the Fair Work Act 2009 (Cth). That Act is clearly directed to regulating the employer/employee relationship.
Even so, in both Williams v Sydney Gay & Lesbian Business Association and Grafton v NSW State Emergency Service it was not the applicants volunteer status that determined the outcome. In Williams, having filed the application the applicant failed to take part in the Commission’s proceedings. In Grafton the application was dismissed as the SES was not a national system employer and so the Commission had not jurisdiction to hear the matter. (It should also be noted that Mr Grafton refused to take part in proceedings or answer requests for his argument on the question of jurisdiction). It was in Grinholz where the fact that the applicant was a volunteer determined that there was no jurisdiction.
Accepting however that a volunteer cannot bring an action for unfair dismissal in the Fair Work Commission the decision in Grafton v NSW State Emergency Service is informative as it explains why no-one, volunteer or employee of the NSW SES can bring such an action. The SES is not a national system employer, so anyone’s remedy is to be found outside the Fair Work Act. For employees that would mean the Industrial Relations Commission, for volunteers their only remedy for alleged unfair termination would be in the New South Wales Civil and Administrative Tribunal or the Supreme Court – see Castle v Director General State Emergency Service  NSWCA 231 and the following blog posts:
- ‘Reasonable Grounds’ for disciplinary action in the South Australian Country Fire Service (October 10, 2014); and
- Natural Justice and the SES (September 28, 2015).
Most emergency service volunteers nationally are run directly by State Government Organisations. However by exception, in WA and NT the ambulance service is run by a private organisation (St John Ambulance WA/NT) and not the state government. In this case what forums might be available for a volunteer alleging unfair dismissal in these cases (or indeed the original case of Williams)?
Volunteers cannot make an application for an unfair dismissal remedy anywhere as they are not employees. Volunteers could, however, seek a review of a decision to terminate their membership if they claim there has been a failure to follow due process or apply natural justice but it is not an easy claim to make. First courts don’t want to get involved in those sort of disputes – what is effectively club membership – unless there is some economic interest at stake, see Castle v Director General State Emergency Service  NSWCA 231 (discussed in posts referred to, below). Further limits on the jurisdiction may restrict a tribunal’s power to make any orders – see https://emergencylaw.wordpress.com/2015/09/28/natural-justice-and-the-ses/. In most cases volunteers won’t have an effective remedy but, to answer the question, the forum that they would go to would be either the State’s Civil and Administrative Tribunal (in WA that’s the State Administrative Tribunal) or the Supreme Court depending on the nature of the decision and the legislation (if any) under which it was made. For more discussion on volunteers and natural justice see https://emergencylaw.wordpress.com/?s=%22natural+justice%22+and+volunteer
Hi Michael, how does the finding in Grafton, that the NSW SES was not a ‘national system employer’, affect other jurisdictions such as the VIC SES, MFB and CFA?
For example in the below case the FWC had jurisdiction to hear an application from the MFB (well as far as I can see in the case summary the FWC’s jurisdiction was not something contested), however wouldn’t the MFB meet the definition in Grafton of a ‘body established for a public purpose by or under a law of a State or Territory…’ and so would not be considered a national system employer.
I note that the MFB case was in 2014 and Grafton was 2017 so has something changed since then?
In the case you’ve cited, MFB v UFUA ‘Fair Work Commission … refused an application by the Melbourne’s Metropolitan Fire and Emergency Services Board (MFB) to terminate two enterprise agreements that were beyond their nominal expiry date’. The summary, provided by the Commission, says ‘An application can be made to the Commission under s.225 of the Fair Work Act 2009 for the termination of an agreement once it has passed its nominal expiry date.’ Section 225 falls within Part 2-3–Modern Awards. For that part ‘employer [also] means a national system employer’.
Without chasing it down in full detail, states can refer their industrial powers to the Commonwealth and thereby make a state employer a national system employer (Fair Work Act 2009 (Cth) ss 30K-30N) and that Victoria has done that (Fair Work Regulations 2009 (Cth) r 1.15A) See also
* United Firefighters’ Union of Australia v Country Fire Authority  FCAFC 1 (discussed on my blog at https://emergencylaw.wordpress.com/2015/01/26/industrial-relations-and-asking-the-cfa-to-stick-to-its-bargain/) where the Federal Court said (at ) “s 30D and 30N of the FW Act extended the definition of “national system employer” to include within the Commission’s jurisdiction employers in a State that were not constitutional corporations”; and
* my blog post at https://emergencylaw.wordpress.com/2015/05/20/the-commonwealth-setting-terms-and-conditions-of-employment-for-victorian-fire-fighters/.
In essence it appears that the MFB is a national system employer, whereas NSW SES is not, because Victoria has “referred the matters covered by subsections [30L](3), (4) and (5) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution”.