Fair Work Commission sides with Tennis Officials Australia vs. Tennis Australia in termination dispute

Seven months after it was first reported that Tennis Australia was under fire from four directors of Tennis Officials Australia, who, in their view, were unfairly terminated, the Fair Work Commission has delivered a stunning blow to the governing body.

The decision arises from proceedings brought by former directors of Tennis Officials Australia (TOA), the elected body representing tennis officials, last October. The directors were Karen Mack, Simon Canavan, Catherine Caswell and Jim Goode.

Tennis Australia terminated the directors from their officiating positions after TOA published in their eyes truthful, reasonable and confidential newsletters to the officials they had been elected to represent.

The newsletters addressed issues including working conditions, safety concerns, payroll problems and governance matters affecting officials.

Tennis Australia repeatedly directed the TOA board to cease all communications with its members. It asserted that communications should not contain anything that was not positive about Tennis Australia or officiating.

Tennis Australia ultimately claimed that the directors were removed because their newsletters demonstrated that they were “not professional” and because they allegedly breached a requirement that officials must “promote and support Tennis Australia’s programs and activities to the greatest extent possible”.

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Rather than defending the merits of the adverse action claims, Tennis Australia sought to have the proceedings dismissed by arguing that officials were merely volunteers and therefore not entitled to workplace protections under the Fair Work Act.

The Fair Work Commission has rejected that position and ruled that Tennis Australia Officials are employees, not volunteers.

The decision has potentially significant implications for Tennis Australia.

A finding that officials are employees rather than volunteers raises serious questions about whether Tennis Australia has complied with minimum wage laws and properly provided employee entitlements.

It may expose Tennis Australia to substantial claims for unpaid wages, superannuation, leave and other employment-related benefits by hundreds of current and former officials, with the possibility of representative or class action litigation.

The implications extend well beyond tennis. Other sporting organisations and entities that rely on workers classified as “volunteers” despite exercising significant control over their work may now face similar scrutiny, legal exposure and claims for unpaid employee entitlements.

The next stage for the Tennis Officials Australia Directors is to proceed with the substantive claims that they are bringing against Tennis Australia at Fair Work. These are the general protections claims.

The claims concern whether Tennis Australia unlawfully terminated the employment in contravention of the general protections provisions of the Fair Work Act.

The claims allege that adverse action (termination of employment) occurred against us because we exercised our workplace rights by sending a newsletter to our TOA members in our role as elected TOA representatives (ie Tennis Australia terminated their employment because they didn’t like the content of the truthful newsletters we sent to our members. The content of the newsletters was aimed at improving employees’ working conditions).

The next step is for the Fair Work Commission to schedule a conciliation conference (a confidential mediation conducted by a Commission conciliator, during which the parties will have an opportunity to discuss the claims and explore whether the matter can be resolved without the need for further litigation.

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