Today we begin to catch up on some recent cases (see Australian Emergency Law is taking a holiday (March 22, 2024)).  The first case, decided on 3 April 2024, is Mifsud v Fire and Rescue NSW Band Incorporated [2024] FWC 853 (03 April 2024) (Wright DP).  This was a claim for unfair dismissal by two members of the Fire and Rescue NSW Band.   Deputy President Wright gave this history of the band (at [9]-[10]):

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.

On 26 May 2022, the Respondent [ie the Fire and Rescue NSW Band Incorporated] 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 now incorporated band provided for a management committee and provided rules for membership of, and exclusion from, the band. The rules required members to attend 80% of rehearsals, seek leave if they were going to be absent for any time, submit to the discipline of the band, only wear their uniform on band duties etc.  The sorts of rules that one might expect to be applied to employees.

The applicants, Mr Mifsud and Mr Webster joined the band in 1986 and 2016 respectively.  Being a member of the band is not a full-time job, nor, as the Commission found (discussed further, below) a job at all.  Band members were paid $15 and hour for attendance at rehearsals and performances. Rehearsals were for two hours every Thursday night.  At [23]-[24] Wright DP said:

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.

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. 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…

The evidence was that most band members attended most rehearsals and there was never trouble having enough band members to perform at the various events. Mr Mifsud said (at [26])

… 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 also acted as the band librarian and received an honorarium of $2000 a year and $15 an hour for ten hours per month to perform the librarian’s duties.  He was allowed to attend FRNSW headquarters when it suited him to perform those duties. When the band was incorporated the band manager directed that the librarian’s duties were to be performed in the one hour before rehearsals. On 24 August 2023 the management committee resolved (at [33]) ‘that Mr Mifsud should relinquish the Librarian position.’

At [36] we are told:

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.

There is no detail as to why that action was taken.  In seeking a remedy for unfair dismissal, the applicants argued that the terms of band membership were in fact terms of employment. The respondent argued (at [41]-[450) 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…

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.

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.

Deputy President Wright found there was no contract of employment. The Band Protocol was:

…  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.

Given that the band members were not employees then the Fair Work Commission could give no remedy.  The Deputy President commented on that situation with some advice for Fire and Rescue NSW. She said (at [72]-[74] emphasis added):

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.

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.

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.

Commentary

The legal lesson for readers of this blog is to restate that volunteers cannot rely on the Fair Work Commission, or state based Industrial commissions, to provide a remedy if they are dismissed from their volunteer roles (see also Volunteers, unfair dismissal and the SES (June 27, 2019)).  In the absence of an employment contract the power to dismiss is found in the rules – either in the regulations for statutory organisations or the rules for incorporated associations.  Presumably Mr Mifsud and Mr Webster could try to seek some remedy if they felt the rules had not been complied with but that may require an action in the Supreme Court which would be prohibitively expensive. And courts are reluctant to intervene in such matters where economic interests are not at stake (see Castle v Director General State Emergency Service [2008] NSWCA 231).

The case was also of interest just to see how the FRNSW band operates. Evidence was led that members of the NSW Corrective Services Band ‘are employed on a casual basis pursuant to s.43(4) of the Government Sector Employment Act 2014 (NSW)’.  Wright DP noted the anomaly in FRNSW relying on a band that is now a separate legal entity, and therefore presumably not subject directly to FRNSW control, to perform the valuable community service that the band provides.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.