Rawsthorne v Fun over Fifty Pty Ltd

[2015] FCCA 3371

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAWSTHORNE v FUN OVER FIFTY PTY LTD [2015] FCCA 3371

Catchwords:

INDUSTRIAL LAW – Small claim – whether the Applicant was an employee or volunteer – application granted.

Legislation:

Fair Work Act 2009 (Cth)

Applicant: SUSAN RAWSTHORNE

Respondent: FUN OVER FIFTY PTY LTD

File Number: BRG 1051 of 2014

Judgment of: Judge Vasta

Hearing date: 23 November 2015

Date of Last Submission: 23 November 2015

Delivered at: Brisbane

Delivered on: 23 November 2015

REPRESENTATION

The Applicant appearing on her own behalf

The Respondent appearing on their own behalf

ORDERS

1. That the Respondent pay costs to the Applicant fixed in the sum of $200.00 within fourteen (14) days from the date of this Order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1051 of 2014

SUSAN RAWSTHORNE

Applicant

And

FUN OVER FIFTY PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This is a Small Claims matter.

2. In this matter, the Applicant was a hostess with the Respondent.  She claims that she was not paid in accordance with the Award, and so is therefore claiming that the Respondent company ought to have paid her according to the award. 

3. She has annexed to her affidavit, and I will mark it as Exhibit 4, an annexure that goes through what, she claims, her hours were during the time that she went on tours.  Looking at it as I have, I see that there are eight tours, and which leads to a total of 76 days on tour.

4. If one works out that on some of those tours, obviously, there is a start and a finish, so that there will not always be an overnight that correlates with that, she certainly spent quite some time away over the period of being with the company.

5. She seems to have started 14 October 2013 and ended on 27 July 2014. So, as I say, that’s eight tours. The Respondent is a company that provides tours for people over the age of 50, calling themselves Fun Over Fifty. The theme of the company seems to be a point where the clients who have, in effect, mainly finished the bulk of their working life, can relax with people of the same age group and same sort of interests and discover parts of Australia that they may not do if they were left to do such for themselves.

6. So whilst such tours may be relaxed, the position of hostess is an important position. The company has provided evidence that originally, their tour hostesses were not paid anything. They had duties to perform whilst being tour hostesses, but, in effect, their reward was getting a free holiday and having an enjoyable experience. The company ensured that they had no out-of-pocket expenses at all, and so, in effect, for no outlay by the tour hostess, they were able to go to places and enjoy what the persons who were paying for the experience were able to enjoy.

7. The only duties that they had to perform were that of the tour hostess.  There is some debate as to how onerous those duties are, but as I see it, they are duties upon which a person is, in effect, on call, even if they are not actually doing anything.  I do accept that it would probably be less than two hours a day of actual work that would have to be done, but, nevertheless, the person is there on call.  The question that has really been agitated here was whether the role was a volunteer role or whether it had become one where there was an employer-employee relationship.

8. It seems that because the tour hostesses needed to be insured and to ensure that they did come under the insurance offered by Workplace Health and Safety that a nominal payment had to be made.  The company talked of this as honorariums, or to use their words, volunteer-type payments.  The sum of $50.00 is quite a meagre sum, really, and in the company’s submission, that meagre sum really correlates as to what sort of position it was; that this was, really, just a token to say thanks to the host or hostess for providing the service that they were doing, but they were still getting the free holiday.

9. It seems to me that that is what was told to the Applicant when she was interviewed by Ms Hall. I accept what Ms Hall has said, (and it seems to me to be supported by the evidence of every other person who presented an affidavit) that Ms Rawsthorne, the Applicant, was told that this was, in effect, a voluntary position, and that the $50.00 was really a token. The fact that the Applicant, as it were, heard what she wanted to hear is beside the point. I accept the evidence of the witnesses for the Respondent as to what the Applicant was told as to the relationship.

10. So from where I am looking, that was her understanding, and it should have been her understanding.  As an aside, I say it beggars belief that the Applicant actually thought that she was being paid this money for the job, when anyone with a modicum of common sense would have known that even the youngest person working at a McDonald’s would be making more money than $50.00 a day.

11. Notwithstanding that that is the finding of fact that I make, the question is, what, in law, was the actual arrangement? The arrangement was done so that the company would fit in with the Workplace Health and Safety arrangements. It is also of note that since this litigation began that the company has ensured that there cannot be a repeat of this litigation by having all their employees, as it were, and I use that word very loosely, sign volunteer agreements so that the nature of the relationship between the company and those persons in the position of host or hostess is made abundantly clear.

12. This is not the case that obtained in the Applicant’s situation.  It is of note that the Applicant was given a group certificate at the end of each year, where there was a small amount of tax taken out and paid to the Australian Tax Office.  It is also to the point that superannuation was taken out. On a strict reading of the superannuation guidelines, if there is payment of over a certain amount in a particular calendar month, then some superannuation has to be paid.

13. But what is quite significant is an email sent by the chief executive officer, Ms Brennan, on 13 June 2014, which reads to the Applicant:

    “Dear Susie,

    You are a valued employee, and we feel that as a hostess…in light of recent emails and your visit to our office on Friday, June 6, I would like to clarify the terms of our employment relationship and highlight some of the points covered.”

14. Then there was a list of what the Applicant could claim, what she couldn’t claim, and how she could be paid. 

15. To my mind, when one has a look at that particular letter, notwithstanding what the intentions of the Applicant and the Respondent were when the arrangement was made, it seems to me that the relationship ended up in a legal sense becoming somewhat different to that.  So when one has a look, the claim that the Applicant makes, in effect, for $20,000.00 may have some merit.

16. However, what also does have merit is the point that the persons are given free holidays and having all their expenses paid for.  The Respondent submits, in effect, if they had to pay wages to the Applicant, they would have had to have had some arrangement for the meals, accommodation and sundry expenses incurred by the Applicant.

17. Even on the most conservative figures that I could put together, in the 76 days of touring that there was 68 overnight stays. The Respondent submits that the average overnight stay conservatively costs the Respondent $250 a night. If I were to just allow 60 overnight stays at $200.00 a night on average (rather than the $250 a night that the Respondent says is conservative), that would be $12,000.00 that the Respondent has paid for the Applicant.

18. If one were to then look at the meals, even at $50.00 a day for the 76 days, you would be looking at a sum of about $4,000.00.  That already equates to $16,000 that the respondent has paid for the Applicant’s meals and accommodation (and it is probably far more than that). If you then factored in all the other experiences, wherever people have to enter particular exhibits or attractions which the Respondent has paid for the Applicant, it could easily be said that the “payments” made for the Applicant are far in excess of the claim.. 

19. Because this is a small claims matter, I will deal with the matter in a manner that gives justice to both parties. I will just take the sum of $16,000 that the Applicant has received. If I add the $3800 already paid (that is, the $50 a day for 76 days) then the total is $19,800.  Take that sum from the maximum $20,000 and one is left with $200. 

20. I order the Respondent to pay the Applicant the sum of $200.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  16 December 2015