Whether staffing sporting ground canteens or caring for the vulnerable, voluntary work is an essential and laudable element of Australian society. Yet while most volunteers undertake their duties without issue, the absence of legal regulation regarding voluntary labour can be problematic. How do we distinguish between volunteers and employees? What practical steps might be taken by organisations utilising volunteers to protect from liability? What rights does a volunteer possess?
Volunteer or employee?
Volunteering Australia offers a pithy definition of volunteering: ‘time willingly given for the common good and without financial gain’. While voluntary work is typically distinct from employment, as stated in a Fair Work Ombudsman-Commissioned report, ‘[t]here are times … when the line can become blurred’ (Andrew Stewart and Rosemary Owens, ‘Experience or Exploitation? The Nature, Prevalence and Regulation of Unpaid Work Experience, Internships and Trial Periods in Australia’ (January 2013) 5).
Such cases have confronted the courts on several occasions. The primary authority is the NSW Court of Appeal’s judgment in Teen Ranch Pty Ltd v Brown (1995) 87 IR 308. The applicant offered his time at a Christian youth camp in return for food and accommodation. When the applicant was injured, he lodged a workers’ compensation claim. Traditional contractual principles were determinative and the Court placed particular emphasis on the intention of the parties: ‘Altruism was a substantial motive for each party’s entering the arrangement.’ Moreover, the fact that the applicant had ‘no obligation to attend at any particular time or at all’ influenced the outcome. They found no employment relationship existed between the parties, thereby denying the applicant compensation.
Similar reasoning was applied in Morris v Anglican Community Services  SAIRC 6 and Dickinson v Tropical Fruits Inc  NSW WCCPD 331 to divergent effect. In the former, the applicants were caretakers for a property in return for free accommodation. They had clearly delineated duties and a mutuality of obligations existed, which led to a finding that an employment relationship had arisen. The three-year duration of the relationship was also relevant as over time, what begins as volunteering may transform into employment. Conversely, in Dickinson the applicant assisted as a carpark attendant at an event in return for free entrance after completing her duties. It was held that no contract was on foot. Free entry was a gift and not referable to the hours worked by the applicant. Both cases highlight the context-specific nature of the inquiry.
The importance of correctly classifying workers is considerable. Employees must be paid according to workplace instruments, enjoy various minimum standards and can litigate grievances in industrial tribunals. Volunteers have no legal entitlement to remuneration, few workplace protections and can be ‘dismissed’ without notice. Incorrectly classifying an employee as a volunteer could give rise to litigation, orders for back-pay and penalties.
Regrettably, there is little organisations can do to protect themselves beyond paying close attention to the jurisprudential guidance and reassessing the status of volunteers from time to time. While it may be possible to execute a ‘volunteer agreement’ between the parties, specifying that the parties do not intend to create an employment relationship, these have limited utility. Courts scrutinise the factual reality and will not be persuaded by smokescreens. As Gray J famously said in Re Porter, ‘the parties cannot create something which has every feature of a rooster, but call it a duck’ ((1989) 34 IR 179, 184).
While they may lack access to traditional employment remedies, volunteers are not entirely without protection. The Work Health and Safety Act 2011 (NSW) extends to someone who ‘carries out work in any capacity for a person conducting a business or undertaking’, inclusive of ‘a volunteer’ (s 7). In certain sectors, volunteers might be deemed to be employees for workers’ compensation purposes (Workplace Injury Management and Workers Compensation Act 1998 (NSW) sch 1). Additionally, parts of the Anti-Discrimination Act 1977 (NSW) apply to volunteers. For example, the prohibition of sexual harassment against a ‘workplace participant’ extends to ‘a volunteer or unpaid trainee’ (s 2B).
The distinction between a volunteer and an employee will be unambiguous in most cases. Where the line becomes blurred, courts will look at the underlying purpose of the relationship, and altruism will strongly signal a volunteer arrangement. Notwithstanding the absence of legal obligations, organisations that utilise volunteers should ensure they treat their unpaid workforce appropriately. As Mahoney JA reminded us in Teen Ranch (at 308), ‘[t]he obligations upon the parties lay in the moral rather than the contractual sphere’.