Cooking the Books in the Name of Religion: Employee or Volunteer

The Federal Circuit Court recently handed down an important decision that reminds both the not for profit sector, including religious organisations, of the need to pay close attention when engaging individuals as an employee or volunteer to work in their organisations.

In the decision of Hindu Society of Victoria v Fair Work Ombudsman [2017] FCCA 423, the Court confirmed on the facts before it that, even though an individual was alleged to be a religious priest, he was in fact a cook and therefore an employee.

The Hindu Society argued that the individual was a religious priest because:

1. It was common for observers of the Hindu faith to give their time on a voluntary basis;
2. Food and the service of food was a critical part of Hindu worship; and
3. Documents that they had used to engage the individual showed he was not an employee;

The Court rejected the above based on the following:

1. The individual spent most of his time cooking in the commercial canteen at the temple site;
2. The individual did not appear to carry out the duties of a religious priest, namely spiritual advisory duties;
3. The individual did not appear to be given the esteem that comes with being a religious priest; and
4. The books and records of the organisation showed that the individual had been appointed as an employee.

There are a number of key lessons from this case:

1. Not for Profits, including religious organisations, need to ensure that any agreements in place actually reflect the work that is to be done. In this instance, it appears that the employee was described as one thing, but doing another.

2. Secondly, if an individual is noted in an organisation’s books and records as an employee, this is highly persuasive evidence in showing that an individual is an employee.

If you need advice or have questions about the status of volunteers in your not-for profit organisation or wish to discuss volunteer agreements, email or call Adam Foster on (03) 9629 9629.