The Basic Conditions of Employment Act (BCEA) (Section 3(1)(b)) specifically excludes “unpaid volunteers working for an organisation serving a charitable purpose” from the BCEA. The National Minimum Wage Act (NMWA) (Section 3), also excludes a person who works for another person but does not receive any remuneration for their services. These laws therefore exclude a volunteer from being seen as an employee and they are excluded from the rights included under the BCEA and NMWA.

However, if a volunteer regards themselves as being an employee, for example, if they receive an allowance from the organisation they work for, then there are different tests to determine whether there is an employment relationship. The Code of Good Practice: Who is an employee has a list of factors to determine whether someone should be considered an employee. Both the LRA (Section 200A) and the BCEA (Section 83A) presume a person is an employee if the following factors are present:

• How the person works is controlled by another person
• In the case of a person who works for an organisation, the person is seen as being part of that organisation
• The person is economically dependent on the other person for whom they work or provide services to
• The person’s working hours are fixed and the person is paid a fixed remuneration.

These factors only apply if a person earns below the BCEA earnings threshold which is R254 372 per year (R21 198 per month). The Courts have dealt with cases where individuals in volunteer positions claimed they were employees. They found that both parties must have a clear intention to create a legally enforceable employment contract either orally or in writing. In deciding whether there is an intention, the courts look at the following:

• The documents that were signed to identify whether it is a volunteer or employment relationship
• Whether an organisation normally enters into employment contracts with a specific type of person (within its organisation) claiming to be an employee
• Whether there is any contractual arrangement regardless of the form

The nature and terms of the relationship must be clearly set out in an agreement to avoid any uncertainty and disputes at a later stage.