For somebody to be a volunteer they must not expect payment and they must not receive payment.
It is often obvious when someone is a volunteer, for example, volunteering once weekly for a charity or community with no expectation of payment. The situation can be much more complicated when it comes to work experience, work trials and unpaid internships.
Legal positon of a volunteer
A volunteer is not an employee, so employment law does not apply to them (with the exception of Health and Safety law).
If the parties want a volunteer relationship, it’s important they make it clear that the worker does not expect payment and does not receive payment. Otherwise, the worker may be judged to be an employee and will be entitled to minimum entitlements. For example, they will have to be paid minimum wage and cannot be dismissed unless it is justified.
Minimum wage has more information about the different types of minimum wage.
If an employer pays volunteers then they may be deemed to be an employee. However, payment does not include:
- reimbursing the volunteer for the expenses they incurred when performing the volunteer work
- a koha or honoraria
- any personal satisfaction a volunteer may get from the work.
Work experience, trials and internships
Work experience, short-term work trials and longer unpaid internships are increasingly common in some industries.
If an employer does not want to pay somebody to do these roles they must make sure that the person is a volunteer.
Unpaid work experience, trials and internships
If an employer is thinking of having somebody do an unpaid work trial or internship, or work experience, they should:
- make absolutely clear that the position is a volunteer position and that the person does not expect payment or other reward. This should be done in writing.
- make sure that the volunteer does not receive any payment.
- avoid getting an economic benefit from the work done by the volunteer.
- avoid having the volunteer do work which is integral to the business, such as work that an employee would ordinarily do.
- limit the duration of work and the hours worked by the volunteer. The longer a person volunteers and the more hours they work, the more likely they are to be an employee.
Paid work trials
If you are thinking of having a paid work trial you should use a trial period clause or a probationary clause.
Trial and probationary periods has information one this.
If you are thinking of having a paid internship, you might be able to use a fixed-term agreement. However, you will still need a genuine reason for the fixed term.
Types of employee has information on the different types of employees.
This statement sets out the Labour Inspectorate’s position on work in a business operation without payment of wages.
Health and safety for volunteers
For information on how health and safety law applies to volunteers, see the Worksafe New Zealand website (external link) .