Yarran v Curtin Student Guild

[2016] FWC 817

[2016] FWC 817

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Fabian Yarran
v
Curtin Student Guild
(U2015/13528)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 8 FEBRUARY 2016
Application for relief from unfair dismissal.

[1]        Mr Fabian Yarran was elected to be the Indigenous Officer for the Curtin Student

Guild for the period 1 December 2014 to 30 November 2015. The Indigenous Officer is a

member of the Guild Council. On 29 September 2015, the Guild Council resolved to remove

him from his office because it was alleged he had been absent from three Guild Council

meetings without apologies.

[2]        Regulation R0504 of the Curtin Student Guild Regulations provides that members of

the Guild Council retire from every office they hold within the Guild immediately when their

membership of Guild Council ceases. Regulation R0506 provides that a member of the Guild

Council may be removed from office upon a declaration by the Chair at the relevant meeting,

certifying that the member has been absent without apology from two consecutive meetings or

any three meetings.

[3]        Mr Yarran lodged an unfair dismissal application and alleged that his removal from

office was unfair as he had not been absent for three meetings. Mr Yarran submitted that the

rules of the Guild had altered during his term and that he should have been assessed under the

old rules.

[4]        The Guild objected to Mr Yarran’s application on the grounds that he was not

dismissed as he had been employed for a specific task and the employment ended at the

conclusion of that task. It submitted that as a consequence, he was not protected from unfair

dismissal.

[5]        It was Mr Yarran’s evidence that when he commenced as Indigenous Officer, he was

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not given a contract of employment. It was his evidence that he was required to perform 10

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hours work per week and regularly performed more hours. In addition to the payment of

salary, he was provided with workers’ compensation cover; received superannuation
[2016] FWC 817

contributions and accrued leave entitlements. He said he believed he was an employee of the

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Guild.

[6]        He gave evidence of the tasks he performed and said that he did more than attend

Guild meetings.

[7]        Mr Yarran submitted that the Rules that existed when he took office only permitted his

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removal from office if he was absent from three consecutive meetings. Mr Yarran said he did

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not miss three meetings of the Guild Council.

[8]        After the hearing of this matter I wrote to the parties as follows:

“The Deputy President notes the submission of Mr Yarran that it is not disputed that Mr

Yarran is an employee of the Guild.

The Deputy President notes that there is no evidence before her that establishes that

Mr Yarran was an employee of the Guild. Mr Yarran gave evidence that he was not

provided with a contract of employment and he believed he was an employee. The

Guild did not address this issue at all.

Mr Yarran was elected to an Office under the Guild’s Constitution. The Guild’s

Regulations provide that Mr Yarran is to be paid an amount specified in Schedule 1 of

the Regulations. The duties of the Indigenous Officer are set out in the Regulations

and the Rules. The Deputy President notes that the obligation to pay Mr Yarran and

the obligation for Mr Yarran to perform work arises from the Regulations and Rules.

You are referred to Regulations R0101(27) and (45); Regulation RO651 and Schedule

1; Regulation RO651; and Rule L02010.

The Deputy President has formed the preliminary view that she is not satisfied that

there was a separate contract of employment between Mr Yarran and the Guild. It is

her preliminary view that Mr Yarran held an Office and any dispute about his removal

from that office must be determined in accordance with the Regulations and the Rules

of the Guild and if the Guild acted ultra vires to its constitution, then that would need

to be resolved by a court.

Like a director of a company or an elected trade union official who may be paid

monies and be required to perform work, there is no employment relationship unless

there is a separate contract of employment. The payment of monies and the

performance of work are not sufficient to establish the existence of a contract of

employment. While the Deputy President accepts that this has not been put in dispute

by the Guild, the Deputy President is required to be satisfied that there is jurisdiction

to determine this case and must make a finding that Mr Yarran was an employee.

The parties are therefore directed to file and serve within 10 days of this email any

submission and evidence they wish to call in relation to this matter.”

[2016] FWC 817

[9]        The Guild responded to this email and stated that there was no contract of employment

between it and Mr Yarran. It submitted that Mr Yarran was an elected office bearer and not an

employee and his removal from office is governed by the Regulations. It was submitted

therefore, that the Commission does not have jurisdiction to determine Mr Yarran’s

application.

[10]      Mr Yarran advised that he did not intend making any further submissions.

Consideration

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[11] The Guild provided copies of the Regulations relied upon by Mr Yarran and the

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Regulations in place at the time he was removed from office . Mr Yarran is mistaken about

the Regulations in place at the time he took office. Regulation R0506 then provided that a

person could be removed from their Office if he or she was absent without apology from two

consecutive meetings or any three meetings. The amendments that took effect in August 2015

did not change that provision.

[12]      The Guild provided evidence of Mr Yarran’s removal from office and evidence to

support its contention that this was done within the rules of the Guild.

[13]      Regulation R0101(27) defines an “Officer of the Guild” as any person holding an

official position defined within these regulations.

[14]      Regulation R0101(45) defines “Staff” to mean all permanent full-time, permanent

part-time, and contract full-time employees of the Guild. It does not include non-permanent

part-time or casual employees or student representatives elected by the student body or by

Guild Council.

[15]      Regulation R0651 sets out the duties of the Indigenous Officer and Regulation R0652

provides that the Indigenous Officer receives such remuneration and on such terms as set out

in Schedule One. Schedule One provides that the Indigenous Officer is to be paid a salary

equivalent to 10 hours of the Western Australian State Public Service salary scale, level 1,

salary point 1.2.

[16]      Certain other conditions are provided for in Schedule 1.

[17]      Regulation R0651 provides that the Indigenous Officer shall:

“(a)	Be a voting Officer of Guild Council;
(b)	Be Indigenous;
(c)	Convene and Chair the meetings of the Indigenous Department;
(d)	Be responsible for representing Indigenous Students through the Indigenous

Department to the Access and Equity Board;

[2016] FWC 817

(e) Submit an upper limit of the Indigenous Department budget to the first Guild

Council;

(f) Prepare a draft budget for the Indigenous Department and submit it to the

Guild Council; and

(g) Inform the Indigenous Department of important relevant matters of Guild

Council.”

[18]      Rule L0210 provides that the Indigenous officer shall:

“(a)	Be initially responsible to the Indigenous Department and ultimately
responsible to Guild Council;
(b)	Work towards achieving social, economic, educational and sexual equality for

indigenous students;

(c)	Convene and chair the meetings of the Indigenous Department;
(d)	Liaise with the Curtin Centre for Aboriginal Studies;
(e)	Be responsible for coordinating campaigns on Indigenous issues;
(f)	Be responsible for representing Indigenous students through the Indigenous

Department to the Access and Equity Board;

(g)	Recommend to Access and Equity Board relevant policy on indigenous issues;
(h)	Discuss proposed changes to budget line items or change in line items for the

following year with the Finance and Administration Manager;

(i)         Submit a written report for each regular Guild Council covering all aspects of

their activities and other issues of relevance to Guild Council;

(j) Submit a budget to the Guild Council through the Education Vice President

which will not contravene Guild Rules and Regulation or Guild Policy; and

(k) Submit a review on yearly expenditure in June and November.”

Conclusion

[19]      I find that Mr Yarran was an elected officer of the Guild. It is not the role of this

Commission to determine if Mr Yarran was removed from that office in accordance with the

Guild’s rules.

[20]      The Commission only has jurisdiction to hear and determine claims that employees

have been unfairly dismissed. There is no evidence before me which would enable me to

conclude that Mr Yarran and the Guild entered into a separate contract of employment. Mr

Yarran’s election to the position of Indigenous Officer was governed by the constitution of

the Guild and his removal from the office was also governed by the constitution of the Guild.
[2016] FWC 817

[21]      I find that Mr Yarran was not an employee of the Guild and was therefore not

protected from unfair dismissal. His application must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S. Cousner for the Applicant.

Mr B. Pemberthy of the Respondent.

Hearing details:

2015.

Melbourne and Perth (by telephone):

December 17.

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1

Exhibit R1 at [2].

2

Ibid at [4].

3

Ibid at [5].

4

Ibid at [9].

5

Ibid at [11]-[18].

6

Exhibit R3.

7

Exhibit R2.