New Zealand has become a Mecca for travellers from all over the world, drawn here by our incredible scenery and adventure-filled lifestyle. But many of the people who come here on tourist visas end up working on farms and orchards, or in bars and backpackers.
Some of them work in exchange for free accommodation or food. Both the worker and the employer may consider this "volunteering" but the law says otherwise. The law says it is illegal and these "volunteers" should be treated as employees.
What is a volunteer?
Under the Employment Relations Act 2000, the legal position of "volunteer worker" is that a person:
- Does not expect to be rewarded for work to be performed as a volunteer;
- Receives no reward for work performed as a volunteer.
There’s no expectation of payment nor receipt of payment. If an employer pays a volunteer, then they are considered employees and protected under a variety of New Zealand laws including the Employment Relations Act, the Holiday’s Act, and the Minimum Wage Act.
Payment includes any sort of reward and can include:
- Cash payments,
- Petrol vouchers,
- Or even a salad after a trial period.
Payment does not include:
- Reimbursements for expenses,
- Personal satisfaction from volunteering.
Events organised for commercial gain, including the many sporting and adventure events in the South Island, depend heavily on volunteers. They might receive food or a T-shirt or a gift certificate in return for their time and effort but because they are being rewarded for their labour, under NZ employment law in some instances they would likely be considered an employee.
In 2015 the Employment Court considered a case between a campground and one of its residents. The campground was owned by a family trust and operated for the commercial gain of the trust’s beneficiaries. The business was required to have an on-site manager available at all times. The resident agreed to be the on-site contact when the campground employees were not available. In exchange, the resident did not have to pay for his caravan to occupy the site; nor did he have to pay for utilities and he had access to the business’s many other facilities. The Court determined that the resident was actually an employee rather than a volunteer.
In another case more aligned with the concept of a volunteer, Mr Brook was expected to devote around four hours per week to a cultural association. In this case it was noted that Mr Brook took on the role because he wanted to make a positive contribution to the dance community. Whereas in the campground case, the motivation was to earn and save money rather than personal satisfactory or community contribution. Mr Brook was also provided with an expense allowance of $1,500 per year. The Court noted that payments that are designed to reimburse a person for expenses is more akin to volunteer whereas payments that don’t relate to expenses actually incurred amount to wages and are therefore more in-line with an employment relationship.
It doesn’t matter if the "volunteer" is only working a couple of hours a week. It is not the hours worked that defines whether a person is an employee or not.
Employment New Zealand’s position
Employment New Zealand’s position is clear: a person cannot be paid in accommodation only. "Payment for work done must be in money. The employer and employee are free to enter an accommodation arrangement and deduct from wages the reasonable cost of the accommodation. Such agreements need to be in writing. The value of the work must be written down in the employment contract and agreed to by the employee. The job cannot be contingent on the employee staying in the accommodation … The Labour Inspectorate believes that it is highly unlikely that any person working in an accommodation facility and being rewarded with accommodation could be regarded as a genuine volunteer."
The position of Employment New Zealand’s Labour Inspectorate is that volunteers are actually employees if:
- The worker is paid for their work with some form of reward including accommodation or food;
- There is an economic gain to the business from the work performed by the worker;
- The work is an integral part of the business and is work that an employee would normally perform;
- The hours of work are controlled.
In 2018, the Labour Inspectorate launched an investigation after receiving complaints from workers who felt they were being exploited, and other business operators who objected to companies using volunteers to gain an unfair advantage. The investigation found that work in exchange for reward was rife in the accommodation and hospitality industries in particular.
Accordingly, someone drying towels in a bar in exchange for dinner or a person cleaning in a backpacker in exchange for a free bed is very likely considered an employee and as such, should be afforded entitlements under NZ employment law. The employer then has all of the obligations and responsibilities to the now employee including: employment; ACC and tax law obligations, which cover the requirements to have written employment agreements; meeting the minimum wage; maintaining records; providing the minimum holiday entitlements; and ensuring that the person has a valid right to work in New Zealand.
Immigration New Zealand’s position
For those on work visas with conditions specifying who they can work for, Immigration New Zealand states:
"If your work visa specifies an employer, occupation or region, any volunteer work must be in addition to the paid work you undertake. You must not expect or receive gain or reward for the volunteer work you do."
Gain or reward is any payment or benefit that can be valued in terms of money. Examples include:
- Accommodation, such as board or lodging,
- Goods, such as food or clothing,
- Services, such as transport,
- Work experience or training.
If your intention is to receive gain or reward, or you do not have control over the time and amount of work you do, you are not considered to be a volunteer.
Regarding foreign workers, there’s usually a condition to the visa that only allows them to work for a specific employer, so "volunteering" for another could jeopardise their right to work and remain in New Zealand.
What about WWOOFing?
The Willing Workers on Organic Farms (Wwoof) scheme is approved by the Labour Inspectorate if it involves a cultural exchange and training element, and the volunteer is not exploited for commercial gain.
If you’re folding napkins in a bar, there is no cultural exchange or learning happening, whereas WWOOFing is seen as more educational. However, there’s a fine line between volunteering and exploitation.
There are a number of volunteering websites that offer labour-for-bed roles. It is a bit of a grey area and hard to police. There was a case of a farm in Christchurch that took on hundreds of volunteers who assumed they were part of the WWOOFing scheme when they weren’t actually an organic farm. They were housed in inhuman conditions and paid a pittance for work that included renovating holiday homes and a firewood and gardening business.
Many WWOOFers are under the impression they don’t need a work visa. That is incorrect. A person can't work in NZ if they don’t have a work permit or visa and it is the employer’s responsibility to make sure they are legally entitled to work.
What to keep in mind
In many instances, the difference between an employee and a volunteer will be nuanced. In any respect, it is important to consider the nature of the entity, the relationship, and the possible intention of the person contributing.