In case you missed the recent headline news that could’ve come from a Margaret Atwood novel: six former Gloriavale members have won their Employment Court case to be classed as employees for the work they provided to the rural christian community since they were children.
The six women were fighting to be classified as employees for working long hours in the commune's domestic teams preparing food, cooking, cleaning, and doing laundry for Gloriavale's 600 members.
Gloriavale representatives argued, unsuccessfully, that the women were volunteers who provided labour as part of the chores expected of females living in the communal environment.
Before we dive into why this case is so fascinating and what all organisations can learn from it, let's take a quick look at the difference between a volunteer and an employee.
Volunteers vs employees
Here’s the easiest way to tell the difference between an employee and a volunteer:
- Employees expect compensation for their time and effort, and there are a range of minimum entitlements and protections all employees have, e.g. minimum wage, holiday pay.
- Volunteers expect no compensation for their time and effort and have no right to minimum employment entitlements (but they are covered by health and safety law).
Drilling down a bit more, case law has provided clearer indicators on the difference between the two. This is important as the term ‘compensation’ is broad, so the courts will look at a range of factors:
- Is the person being paid for their work? This can include rewards such as free accommodation, food, services, and goods.
- Does the person expect to be rewarded for their work?
- Does the organisation gain an economic benefit from the person’s labour (whether they intend to or not)?
- Is the work the person does integral to the business, i.e. if they weren’t there, would you hire an employee to perform the work?
- Does the organisation have a high degree of control over the person’s hours, location, ways of working, etc?
If the answer to most of these questions is ‘yes’, the person is probably an employee. However, much like the employee vs contractor issue, whether it's an employment or volunteer relationship is a spectrum, and each situation needs to be considered as a whole.
Back to the Gloriavale case
Once we understand all the factors that make a volunteer an actual volunteer, the Employment Court’s decision in this case wasn’t too surprising. So let’s break it down:
Payment & reward for work
The six women clearly received payment for working in the form of accommodation and food. They were also socially rewarded for their work they did, and, more importantly, were shunned and in some cases denied food or beaten as punishment for not completing work. Reward and punishment go hand in hand when considering employment status because a true volunteer would expect neither for their work.
Economic benefit & how integral the person is
It would be hard to argue that Gloriavale didn't receive economic benefit from the labour provided by these women, even though they had no access to money. The judge likened the work to employees in a large scale hostel: in a typical week, the kitchen workforce produced more than 11,000 meals and laundry workers washed at least 17,000 items.
It was also clear they were an integral part of keeping the organisation running. If these women didn’t perform the work, daily operations at the community would suffer.
Control and balance of power
Control was the big daddy in the Gloriavale case because control over volunteers should always be limited and reasonable. The balance of power was also exceptionally skewed; these women were born and raised in an environment that gave them no choice or agency.
Gloriavale’s male leadership accepted that their strategy was to ensure children were kept away from the outside world so they would stay in the community. The leaders had full and deliberate control over the women’s working lives, hours, and conditions (likened to servitude), and the women were given no choice over whether they wanted to work or what, where, or how they completed it.
Throughout their experience, they were presented with agreements, e.g. a “Transitional Education Agreement” and an agreement that labelled them as “Associate Partners”, but at no point did Gloriavale provide them with legal advice or support.
Overall, their level of power and control was non-existent. If you have no agency, how can you provide informed consent to being a volunteer? Clearly, you can't.
Why this case is important
So why should we care about this? As I mentioned, it wasn’t a particularly surprising ruling given the facts of the case (not the first ruling to find members of Gloriavale were employees) and other case law surrounding volunteers vs employees.
What is interesting in this case is that it fundamentally came down to power, control, and punishment.
The concept of volunteers providing services for communal living is not new. In fact, in a press release from Gloriavale officials announcing they would appeal the court’s decision, they pointed out that this case will have significant effects on iwi and whānau, specifically in a marae setting.
The difference between those two examples though, is in the balance of power and control (and punishment).
If you have volunteers providing cooking services to a marae, and they have full agency over their decisions, they know it’s not paid, and the iwi isn’t gaining any economic benefit from the work, it’s a true volunteer relationship.
A church using community members to provide labour isn’t an issue either, but Gloriavale were found to have exerted so much power and control over these women that they had no choice but to comply or be punished.
Our advice
If you're entering into a volunteer arrangement with someone, whether it’s for a not-for-profit or you’re taking on an unpaid intern, put it down in writing and get the person to sign it. Make it totally clear that the person is providing work on a voluntary basis and does not expect payment or any other form of reward.
Be sure not to provide any sort of payment and don’t get the person to do work that an employee would ordinarily do, or that provides economic benefit to the organisation. Also, limit how much work the volunteer does (the longer they work, the more chance it actually is an employment relationship).
Finally, make sure that any relationship is not exploitative. One of the core values we have at MyHR is “don’t be a dick” and that sums up the approach all organisations should have to volunteers. Be kind, be clear, be fair, and don’t be a dick.
