- Work undertaken as a ‘volunteer’ will not typically give rise to an employment relationship.
- However, a factually-specific inquiry is required and there may be cases where the line between volunteer and employee becomes blurred.
- Notwithstanding a lack of employment protections, volunteers retain some workplace rights.
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.