Volunteer or employee?

Volunteer or employee?
31st August, 2018

Volunteers are a valued resource that the Not-for-Profit sector relies on to achieve its goals. However, volunteers can also open up risks as, under the law, it is not always easy to tell who is a volunteer and who is an employee.

Unlike volunteers, employees are entitled to various benefits under the law (annual leave, superannuation etc.). If an organisation has been treating a person as a volunteer, when the person is in fact legally an employee, the organisation may be responsible for any unpaid and outstanding legal entitlements and/or payments owed to third parties (e.g. group tax deductions).

In this article, law firm Salvos Legal provides an overview of the legal definition of a volunteer and what organisations can do to avoid misunderstandings when collaborating with volunteers.

Who is a volunteer?

There is no clear definition as to who is a volunteer according to law, but rather the law will consider multiple factors, considered in the context of each particular case. If there is an employment contract, which may be written or verbal, the person is very likely to be deemed an employee.

The Fair Work Ombudsman highlights four factors which are likely to mean there is a volunteer relationship, instead of an employment relationship:

1. the person does work for the main purpose of benefiting someone besides themselves;
2. the person does not expect to be paid for their work;
3. the parties did not intend to create a legally binding employment relationship or contract; and
4. the person is under no obligation to attend the place of ‘work’ or to perform work or services.

Other relevant factors to consider include:

1. the length of the ‘work’ arrangement (the longer the period of time, the more likely the person is an employee;
2. the significance of the arrangement to the business (the more significant, the more likely the person is an employee); and
3. the formality of the arrangement, in particular whether there are times the volunteer is rostered on or required to attend (in which case, it is more likely there is an employment relationship).

The court decides

Morris and Morris v Anglican Community Services [2000] SAIRC 6 is a good example of the court’s approach in assessing whether a person is an employee or volunteer. In this case, a couple were engaged as ‘caretakers’ of a premises. Ultimately, the court held the couple were employed by Anglican Community Services (AGS) as:

1. the couple were under the instruction of AGS who would inform the couple when groups were coming to stay at the premises and when the premises would need to be cleaned and inspected;
2. there was an agreement and it created mutual expectations between the couple and AGS (namely, free rent and amenities in exchange for labour) which could be legally enforced; and
3. the regularity of the appointment (namely, to be on site 24/7), as well as the inclusion of an initial ‘probation’ period, which the trial judge said would be unusual in a volunteer context as volunteers can be dismissed at will.

AGS argued that the couple were volunteers, however AGS was ultimately ordered to back pay the couple according to the applicable statutory Award for a period of two years.

The role of ‘Position Descriptions’

As noted above, whether a person is an employee or a volunteer is determined by multiple factors considered in the context of each case. However, there are steps that can be taken to protect an organisation against the possibility of a ‘rogue’ volunteer or, less sinister, a misunderstanding that a person is being offered an employment opportunity.

Although the language used in any documentation between parties will not be determinative, organisations should prepare Position Descriptions as a way of formally documenting the nature of any volunteering role. This is the organisation’s opportunity to clearly articulate in writing that an individual is a volunteer and what is expected of a prospective volunteer and, if well-prepared, a volunteer’s Position Description will reduce the likelihood of the volunteer subsequently claiming they understood they would be entitled to a salary and other benefits.

A volunteer’s Position Description should (among other things):

1. state that the document is not intended to be a legally binding document, and that the person is a volunteer;
2. describe (using appropriate language) what the organisation asks of its volunteers, especially details of the volunteer role/tasks, including estimated hours and locations;
3. outline what the person can expect from volunteering, including level of supervision and any minor honorary gifts from the organisation (but there should generally be no monetary compensation payable to the volunteer); and
4. detail ownership rights of any intellectual property arising from the volunteering.

In our experience, a common mistake by organisations preparing volunteer Position Descriptions is to include language which is suggestive of employment, perhaps because people are more familiar with employment contracts.

Volunteering Australia, a peak body advancing volunteering in the community, encourages use of Position Descriptions for volunteers.

If you have any queries or need advice in relation to legal issues surrounding volunteers, including preparation of Position Descriptions, please contact Salvos Legal Partner, Guy Betar via guy.betar@salvoslegal.com.au or call 02 8202 1555.

 

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