Recent decades have seen the growth of what is known as the third sector, or non-profit sector, due, among other things, to the increasingly voluntary, altruistic and selfless participation of society in activities of general interest.
The general situation of crisis and the rise in unemployment have fostered an upward trend in volunteer relationships in this third sector, given that volunteers are often regarded as an instrument for increasing employability or a mechanism for progressively accessing the job market.
The foregoing has given rise to the coexistence of salaried employees and volunteers at non-profit organizations, at which the latter may come to discharge substantially identical functions or tasks within the same organizational area, thus blurring the distinctive features of the two types of relationship.
Law 45/2015, of October 45, 2015, on Volunteer Work (“Law 45/2015”) defines volunteer work as all activities of general interest pursued by individuals, provided that they meet the following requirements:
- they are pursued in the interest of solidarity;
- they are pursued freely; they are not based on personal obligation or legal duty and are assumed voluntarily;
- they are pursued without economic or material consideration, notwithstanding the payment of the reimbursable expenses incurred by volunteers on their volunteer work;
- they are pursued through volunteer entities in accordance with specific programs either inside or outside Spain, notwithstanding the promotion of volunteer work from companies or universities.
As clarified by the Spanish courts, work done by volunteers subject to a schedule, to working hours or to an entity’s orders and guidelines cannot be used to differentiate volunteer work from an employment relationship and, therefore, regard must often be had solely to the subject-matter and purpose of the work, on the basis of which the citizen decides to perform it. Thus, the existence or absence of economic consideration is the fundamental criteria for distinguishing between the two types of relationship.
Nonetheless, because volunteers are entitled to the reimbursement of expenses incurred on the pursuit of their activity, certain doubts occasionally arise as to whether the economic compensation received for such purpose has the exclusive purpose of reimbursing expenses or whether it could be treated as salary for work performed.
In this connection, in its judgment of March 9, 2016, the Castilla y León High Court concluded that the relationship of volunteers serving as counselors in a children’s summer camp could not be characterized as an employment relationship, given that the expenses paid to the volunteers for room and board could not be treated as compensation. The Court held that this was a case of the reimbursement of expenses incurred on the activity (short-term temporary transfer to a place other than the volunteers’ habitual residence). A different conclusion would have been reached if the expenses had been disproportionate or if they had been paid even if the volunteers were providing services from their habitual and permanent residence.
On the contrary, on May 26, 2016, the Andalucía High Court in Málaga handed down a judgment on a case in which volunteers serving as lifeguards on the beach received a fixed amount per day of work (€40 per 8-hour day), independent of the expenses incurred on the work, which amount varied depending on the number of hours worked. The Court concluded that the volunteer lifeguards had an employment relationship because the compensation they received was not purely symbolic; it even exceeded the daily National Minimum Wage stipulated for 2012 for an 8-hour day (€21.38/day), and was paid independent of the expenses incurred.
Although the circumstances of each specific case will determine the true nature of the relationship and will therefore tip the balance to one side or the other, it is fundamental for the expenses paid to volunteers to be directly related to the performance of their work and to the scope of the project, to be proportionate and to be in line with the provisions of the incorporation agreement.
For this reason, the incorporation agreement (which, pursuant to article 12 of Law 45/2015, must be executed in writing) should be given the importance it deserves. This agreement is the main instrument used to regulate and define the volunteer relationship and, among other aspects, must stipulate:
- the rights and duties of the parties;
- the functions, activities and time required of the volunteer;
- the scheme of reimbursable expenses;
- the training required for the work;
- the term of the commitment, as well as the grounds for, and form of, ending the commitment by either party any change of affiliation with the volunteer program or any other circumstance that alters the scheme of action initially agreed.
It is therefore advisable for the material reality of the volunteer’s work to be consistent with the provisions of the incorporation agreement, the wording of which should avoid ambiguities or generalities that could give rise to doubts as to how to interpret the true nature of the relationship.
These precautions should, a priori, minimize the risk of a volunteer relationship eventually being declared an employment relationship. Nonetheless, it is essential to bear in mind that the nature of the relationship will be marked by its obligations and by the material reality of the work, regardless of the name given to the relationship by the parties and independent of the provisions of the incorporation agreement.
Garrigues Labor and Employment Law Department