Fair Work Ombudsman’s Ominous Threat to F2F
As reliable as the arrival of spring, the media have begun their season of beating up Face-to-Face fundraisers. This week’s Daily Telegraph “Why charity ‘chuggers’ target older Australians” (3/10/18) notes that street fundraisers prefer to strike up donor conversations with older Australians over younger ones. What a surprise!
Gary Nunn’s “In defence of chuggers” is also worth a read. Nunn, who spent 12 years working for charities in Australia and the UK, says what’s more annoying than street fundraisers is “not having a cure for cancer, preventable blindness going untreated, kids suffering unnecessarily and Indonesians unable to rebuild their lives after a tsunami.” A compelling argument indeed.
Meanwhile, following a decision of a Full Bench of the Fair Work Commission earlier this year, the Fair Work Ombudsman (FWO) has changed its view on whether the Miscellaneous Award applies to street fundraisers who are employed. This has resulted in a change in the FWO’s advice concerning award coverage for these employees.
Based on the principles in the Fair Work Commission decision, the FWO no longer considers some employees soliciting donations for charities in person, and who aren’t covered by an industry or occupation-based award, to be award free. Rather, the FWO considers that these employees may be covered by the Miscellaneous Award.
The FWO has published updated advice regarding award coverage for employees soliciting donations for charities. Please see: Award coverage for employees soliciting donations for charities. FIA and PFRA are seeking further clarification of what this means for the sector.
Background to the change (provided by FWO)
If an employee is not covered by an industry or occupation-based award, they may be covered by the Miscellaneous Award. Determining coverage under the Miscellaneous Award can be complex and, until recently, there has been limited guidance from a Court or Tribunal about how the coverage provisions in the award are intended to operate.
On 12 January 2018, a Full Bench of the Fair Work Commission handed down a decision, United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort  FCWFB 128, which took a broader approach to considering the exemption under clause 4.2 of the Award. The Full Bench found that employees will not be covered if they have not traditionally been regulated because they are a manager or a ‘specialist white collar professional’.
The FWO has given careful consideration to the decision and its impact on FWO’s approach to Miscellaneous Award coverage generally. In particular it has reviewed its position on award coverage for different occupations the FWO has previously considered may be award-free. The FWO now considers that these employees may be covered by the Miscellaneous Award.
If any FIA members are concerned they should seek their own legal advice on the matter.