Abstract
This contribution looks at the status of volunteers in EU labour law taking into account the criteria of the CJEU's Lawrie-Blum formula. It demonstrates, in light of the jurisprudence of the Court, that some criteria may be problematic and that a purposive approach may provide adequate solutions.
The starting point: what is a volunteer?
The Oxford Dictionary of English 1 offers two definitions that stress different aspects of volunteering. Firstly, a volunteer is defined as ‘person who freely offers to take part in an enterprise or undertake a task’ and, secondly, as ‘a person who works for an organization without being paid’. The word originates from the French ‘volontaire’ and has a military reference – volunteer soldiers as opposed to those who have been conscripted. The original meaning therefore stresses the free will of the person concerned and his/her choice in undertaking a task. The second aspect, the lack of remuneration, seems to have been added later but has now become significant for the understanding of the notion of volunteer.
Both aspects are usually referred to when we speak of volunteers. This is well reflected in a booklet produced by the International Federation of Red Cross and Red Crescent Societies, the Inter-Parliamentary Union and United Nations Volunteers, Volunteerism and Legislation – a Guidance Note:
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First, voluntary activity is not undertaken primarily for financial reward, although reimbursement of expenses and some token payment may be allowed and even recommendable to facilitate access of individuals from all economic backgrounds. Second, it is undertaken voluntarily, according to an individual's own free will. Third, voluntary activity brings benefits to people other than the volunteer, although it is recognised that volunteering brings significant benefit to volunteers as well.
The motivation for doing volunteer work (mutual aid, philanthropy, civic engagement) therefore is usually different from that for paid employment, which is usually undertaken to earn one's living. On the other hand, unpaid voluntary work often shares very similar characteristics with paid work or employment: it is productive, valuable and contributes to the economy.
Thus, the focus is often on the fact that volunteer work is unpaid, and sometimes the law defines what kind of compensation volunteers may receive without being subjected to the general labour law system as ‘workers’. This usually refers to reimbursements for out-of-pocket expenses related to voluntary activities or the board or lodging volunteers may be provided with in the course of their work. It gets more complicated when it comes to pocket money or stipends intended to cover the living expenses of the volunteer to enable those without savings or other sources of income to engage in volunteer work. According to the ILO definition, stipends do not violate this feature of the definition as long as they are not contingent on the local market value, quality or quantity of the work, or on its outcome (if any). 6 It is also pointed out that volunteers may receive non-monetary benefits from volunteering in the form of skills development, social connections, job contacts, social standing and a feeling of self-worth – in this way making volunteering similar to internships and traineeships that are often also unpaid. The difference here is that volunteering first and foremost benefits others, not the person providing the service.
This understanding is also in line with the definition used by the European institutions. The European Council, 7 the European Commission 8 and the European Economic and Social Committee 9 all understand volunteering to refer ‘to all types of voluntary activities which are undertaken of a person's own free will, choice and motivation, and [to be] without concern for financial gain’.
Volunteer work can be performed either through an organization or directly for others outside the household. 10 Therefore, it can be more formalized in the first instance and less so in the second; and usually such formalization goes hand in hand with the integration of the volunteer into the organization within the framework of which the volunteer work is provided.
The work performed itself is very diverse too. While with some types of work, such as helping migrants with their reading skills, there is little resemblance to employed work, it is not so obvious with others, particularly when essential emergency services are provided. Often, emergency medical services, mountain or sea rescue services and fire services depend significantly not only on employed staff but also on volunteers who perform such services in a rather formal way, wearing uniforms and being integrated in a quasi-military command structure. In such cases, the organizations as well as the public depend on the volunteers to be on call as agreed, whether at a base or at home, and to reliably react to a call and to provide the emergency services. Then the difference to employed work is not so obvious anymore as at least some elements of an employment relationship will be present, while others like remuneration may be lacking.
The latter, as well as the different motivation for undertaking volunteer work, may often justify the exemption from the scope of application of general labour and employment regulations. On the other hand, in light of the integration of a volunteer into the organisation of another and subordination under his/her direction, there may be no explanation as to why such an organisation should not have to provide a safe and discrimination-free workplace or comply with working time legislation. Therefore, at least at first sight, a differentiated approach based on the rationale of such legislation may be a solution. It seems reasonable to include volunteers within the personal scope of labour legislation that is not based on the economic dependency of the worker but on the fact that work is provided in person and that the volunteer is integrated into the business of the organisation. On the other hand, all provisions that are concerned with pay and other aspects of the contractual relationship that are based on the understanding that the worker is economically dependent on it, such as sick pay, paid annual leave and protection against dismissal, would then not apply.
When it comes to EU labour legislation, though, such a differentiated approach to the inclusion of volunteers within the personal scope of some but not all provisions may fail due to the approach of the CJEU to applying a general concept of worker without drawing any distinctions between the different legal provisions to be applied. The autonomous concept of worker for EU legislative acts was first developed in the Lawrie-Blum case, 11 resulting in the often-cited reference that ‘the essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’ 12
In the course of time the formula was refined to a certain extent, and more recent judgments now use this one:
… any person who pursues activities that are real and genuine,[
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] to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.
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The Lawrie-Blum criteria applied to volunteers
The starting point: the Matzak case
In the Matzak judgment the CJEU dealt with the legal status of a so-called ‘volunteer firefighter’, although the terminology was not that clear during the procedure, as the opinion of Advocate General Sharpston 16 and the judgment itself use different notions.
The Belgian legislation relevant in this case uses the wording ‘les volontaires des services publics d’incendie’ and states, inter alia, that they are not to be considered as workers under Belgian law. The Advocate General translates this as ‘retained firefighters’, while the judgment of the CJEU refers to ‘volunteers in the public fire services’. The understanding of the Advocate General is interesting as it obviously mirrors the set-up of fire services in the UK and Ireland (and obviously also in Belgium). Retained (or on-call) firefighters do not work in a fire station full-time, but they are paid to spend long periods of time on call to respond to emergencies through the retained duty system. 17 Many have full-time jobs outside of the fire service, like MG, the retained firefighter in the Dublin City Council case 18 who was a (self-employed) taxi driver. Retained firefighters are paid; they receive a flat-rate sum (the retainer) for being available and on-call, and they are remunerated for each intervention. 19 Therefore, it is not surprising that in the recent judgment the CJEU only referred to the claimant in the initial Irish case as a ‘retained firefighter’, and did not even discuss the possibility of him being a volunteer and therefore exempt from the Working Time Directive.
In light of the general international understanding of volunteer work as laid out above, it seems that the label of volunteer firefighter used in the Matzak case can be considered a misclassification in the EU context, although it may be relevant from a national point of view. The classification of such volunteer firefighters as workers under EU labour law becomes evident when looking at the different Lawrie-Blum criteria – and it is not surprising that this exercise was not undertaken in the context of the retained firefighter in the Dublin City Council case.
Real and genuine activity
The criterion which requires that the activities be effective and genuine finds its origin in the fact that the rules on the free movement of workers (and it was in this context that the concept of worker was developed) guarantee only the free movement of persons who pursue or plan to pursue an economic activity. 20 In analysing the jurisprudence of the CJEU, the most important group of cases for this criterion concern the extent of an activity. 21 According to the case law, the fact that a person works for only a very limited number of hours in the context of an employment relationship may be an indication that the activities performed are marginal and ancillary. 22 However, the fact remains that, regardless of the limited amount of the remuneration for and the number of hours worked during the activity in question, the possibility cannot be ruled out that following an overall assessment of the employment relationship in question, that activity may be considered by the national authorities to be real and genuine. In this case, the person performing it is granted the status of ‘worker’ within the meaning of Article 39 EC (now Article 45 TFEU). 23
The second important group of cases where this criterion is relevant consists of cases concerning activities that involve social considerations 24 or traineeships/vocational training. 25 It can be said that this criterion is only applied very restrictively and resulted in the exclusion of a person from the concept of worker in only the older case of Bettray. 26 It therefore is no surprise that in the Matzak case the activity as a ‘volunteer firefighter’, which entailed being on call for work one week out of every four, during the week and at the weekend, 27 was considered to be a real and genuine activity.
Working for another person
Interestingly, the criterion of working ‘for another person’ has not, to our knowledge, yet been examined independently. In the context of volunteer work it might serve as the starting point for arguing that the interest and motivation behind the work may be of relevance. Working for another person could thus be interpreted as promoting the (economic) interests of another. In contrast, work performed primarily in the interest of the working person or in the public interest would then be exempted.
Relevant in this respect could be the following motives that differ from those involved where persons work for others in exchange for remuneration: firstly, if the employment is predominantly determined by religious, charitable or social motives; secondly, activities performed within the family circle or within the framework of a membership of an association (e.g., the Red Cross or a sports club); and thirdly, activities undertaken for the purposes of education or training, treatment or reintegration (e.g., sheltered workshop). The CJEU's ruling in the Bettray case, 28 concerning a former drug addict who was only working for the purpose of rehabilitation or reintegration, at least gives an indication that the Court also considers the motivation underlying the provision of services to be relevant for an employment relationship. On the basis of this argument alone, the CJEU rejected the claim for qualification as an employee under EU law, in this specific case concerning the freedom of movement for employees. In the same line of argument, the nature of the activities themselves was also referred to and it was pointed out that Mr. Bettray's work was determined by the needs of the person working and was ‘tailored to the physical and mental capabilities of the individual’. 29 This was different in the cases of Birden and Trojani, where the persons concerned were actually providing services that were part of the normal labour market, 30 or were actually able to perform a certain activity. 31 One could therefore assert that they were actually performing work that was of economic interest to their contractual partners, although the selection process was based on social criteria designed to achieve social aims such as the reintegration of foreigners into the labour market. This is not the case when it comes to volunteer work, as volunteers further a different interest - usually not the one of the contractual partners but of the recipient of a service or society as a whole. Thus, volunteers may escape being qualified as workers if one attaches more weight to the criterion of the concept of worker that work has to be undertaken in order to promote the interests of another person, namely, the employer.
Working under the direction of another person
The criterion of working under the direction of another person is usually used to distinguish between workers in an employment relationship in need of protection and those that are self-employed and who can take care of themselves. This criterion was used recently in the context of gig work in the reasoning of the CJEU in Yodel Delivery Network, 32 where its absence was stressed in the case of discretion afforded to a contractor in four respects, two of which are particularly of interest here: the discretion to accept or not to accept the various tasks offered by the putative employer or to unilaterally set a maximum number of such tasks, and the ability of the contractor to fix his own hours of ‘work’ within certain parameters. The CJEU also referred to the ability of the contractor to tailor the working time to suit his personal convenience rather than solely the interests of the putative employer. 33
The two criteria mentioned include two very different aspects of subordination: the obligation to work and subordination. The first criterion mentioned concerns the question of whether there is any obligation to work at all or if there exists a right to reject tasks offered or to even discontinue a task once has been accepted and commenced. In this context the question arises as to which situation is to be examined: the overall framework contract, a shift a person agreed to or the performance of a single task the working person took over. To illustrate this, we will take the example of a volunteer fire fighter: The framework contract is the membership of a volunteer fire service, the shift is the on-call duty, and the task is the incident needing attention. In all the cases the question of whether there exists an obligation to work must be examined. This obligation may be a continuous one (to perform on-call duties on a regular basis), a limited one (one on-call duty taken over) or may involve the performance of emergency services if called upon. It is possible that only the framework contract offers great flexibility, and that during the shift once commenced or for the duration of an accepted task there is no freedom but an obligation to work. In the case of Dublin City Council, 34 the retained firefighter was not obliged to participate in the entirety of the interventions effected from his fire station, since one quarter of them could take place in his absence. Therefore, it can be argued that there was no obligation to work during the on-call duty, but that an obligation to work definitely existed once the firefighter had chosen to take part in an intervention. Thus, in this case the qualification of worker was never at issue, and the only question to be addressed was whether the on-call duty was to be considered working time or not. In other cases involving volunteer work, it is possible that there exists no obligation to work at all, with the volunteer deciding when to work and when to stop working at anytime, as in the case of a volunteer sorting books in a library. In this case the lack of an obligation to work at all will exempt him/her from being qualified as a worker.
The second criterion is subordination, i.e., working under the direction of another person in the narrower sense. This refers to the fact that workers ‘sell’ their labour by subjecting themselves to the directives of another person who may ‘use’ them for his or her purposes. The main aspects of this limited personal freedom of the worker are the obligation to work at specified times and at a specified place, the right of the contractual partner to give orders, especially as regards time and place, as well as the employer's control over personal work-related behavior and demands relating to integration in the partner's operational organization. This is the core criterion used to distinguish between an employment relationship and self-employment. Yet, it can also be used to exclude volunteers from the personal scope of labour legislation, as in the case of a volunteer contributor to a journal, where there is an obligation to write an article but ample freedom (like a freelance journalist) as to how to go about this. In the case of the provision of emergency services like firefighting or ambulance driving, this criterion will usually be fulfilled, though. As Advocate General Sharpston pointed out in the Matzak case, if a fire service is to function effectively, all members of the firefighting team (professional firefighters, retained firefighters or volunteer firefighters) must clearly work under direction and follow orders that are given, including making themselves available for active service on a rota basis. 35 Therefore, the specific characteristics of some activities performed by volunteers, especially in the case of volunteer emergency services, presuppose subordination. In other words, it is inherent to such services that volunteers work under the direction of another person.
Pay
According to the long-standing jurisprudence of the CJEU in the context of Article 45 TFEU, it is an essential element of every employment relationship that the worker receives remuneration in return for his/her activities. 36 This requirement has its origin in the fact that the rules on the free movement of workers guarantee only the free movement of persons who pursue an economic activity. 37 Interestingly, the judgments concerning the grey areas were mostly issued in the context of this fundamental right, taking a wide approach and stressing that the concept of ‘worker’ must not be interpreted narrowly. 38 Consequently, to our knowledge, the CJEU has never, to date, negated the qualification of an employment relationship only because of the requirement – or better the lack - of remuneration. For example, it has stated that the fact that a person engaged in part-time work earns less than a person employed full time is irrelevant. 39 It is also irrelevant that the remuneration is below the level of the minimum means of subsistence 40 and that the person seeks to supplement it by other lawful means of subsistence. 41 Even the fact that the remuneration is substantially less than the guaranteed minimum wage cannot be taken into account. 42 It is also irrelevant that the remuneration mostly consists of benefits in kind (and only some pocket money) as long as these benefits constitute the consideration for the services performed. 43
The criterion of pay is the most obvious demarcation line between an employment relationship, according to the understanding of the CJEU, and volunteer work that is ex definitione unpaid. As pointed out above, though, some financial benefits the volunteer may receive do not violate this principle as they are not paid as a consideration for the volunteer service, but out of other motives. Unproblematic are reimbursements for out-of-pocket expenses related to voluntary activities, such as travel expenses. Other benefits are provided to facilitate volunteering, as volunteers also need to sustain themselves. These include board or lodging, and also pocket money or stipends intended to cover the living expenses of the volunteer. The reason for paying them is the enablement of those without savings or other sources of income to engage in volunteer work and not to pay them for their services. These benefits therefore are not paid for the volunteer work but to facilitate it. An important indicator in respect of this different rationale is how such stipends are calculated. If they are not contingent on the local market value, quality or quantity of the work, or on its outcome, then this is a strong argument to the effect that they are not pay. 44
This line of argument may serve as the starting point for distinguishing the case of Trojani, where the work was performed within a social integration programme and the person received board and lodging as well as pocket money in return, and volunteer work that comes with a subsistence allowance or benefits in kind to cover the basic needs of a volunteer. In the Trojani case it was stressed at several points in the judgment that the benefits in kind (board and lodging) and ‘some pocket money’ were received in return for the work. 45 That is the difference in respect of those benefits a volunteer receives to facilitate the volunteer services – they are not paid as a consideration for the volunteer work, but to enable the volunteer to undertake unpaid volunteer work. The ILO's definition may be helpful in this context, as it states that stipends are not to be considered pay as long as they are not contingent on the local market value, quality or quantity of the work, or on its outcome. 46 As long as they are paid on the basis of the need of the volunteer to sustain him/herself without any reference to the work, especially his/her qualification or the hourly extent of the work, they should not be considered remuneration and therefore a volunteer may avoid being qualified as worker on the basis of this criterion. For volunteer work that is not performed full-time but enables the volunteer to pursue other paid activity and therefore sustain him/herself on the basis at least to a certain extent of that activity, it is arguable that the stipend may be less and take into account the extent of the volunteer work. However, pay that is based on the hours actually worked as a volunteer would pervert the idea of a stipend facilitating volunteering but would be a strong indicator that a financial benefit is being paid in return for a service performed.
Admittedly, it is not that easy to fit the older judgment of the CJEU in the Steymann case into the concept developed above. Here, the Court stated that it is possible to assume the existence of an employment relationship if a community (in this case, the Bhagwan Community) provides for the material needs of its members (and pays some pocket money) in any event, irrespective of the nature and the extent of their activities, and if this work constitutes an essential part of participation in that community because the services that the community provides to its members may be regarded as being an indirect quid pro quo for their work. 47 The conditionality as well as the interest of the Bhagwan Community as the recipient of the service could provide the solution – the community member was not a volunteer, but was working for the community for which he got benefits in kind and pocket money. A volunteer is not working to further the interests of the volunteer organization, but those of the recipients of the service or society as a whole.
Extending the personal scope of some EU labour legislation by employing a purposive approach
As pointed out above, we consider the undifferentiated approach of all or nothing – either all employee rights or none –to be inadequate to address the special situation of volunteers. It has to be stressed that the now universally applied autonomous notion of the worker in EU law was developed in the context of the free movement of workers as laid down in Art 45 TFEU. The aim of this provision – safeguarding one of the fundamental economic freedoms of citizens of the EU – is different from that of protective labour legislation that primarily aims at protecting personality rights, and which is based on the inequality of bargaining powers inherent to the employment relationship.
Thereby, some elements developed in the context of Art 45 TFEU in the form of the Lawrie Blum formula may be of less importance in the context of protective labour legislation if one undertakes a purposive approach. Many employment rights, such as minimum wage legislation, paid annual leave and protection against dismissal, are based on the understanding that employees are economically dependent on their contractual partners, as they need the pay to sustain themselves. It is evident that such provisions do not apply to volunteer work that is, by definition, unpaid. But this is not the only rationale behind all labour legislation, as some of labour law may also apply more generally to those working within an organization who have little control, even if work is unpaid. Does it actually make a difference from the perspective of health and safety or equal treatment if a person works under the direction of another person or if he/she receives remuneration or not?
If we take the example of working time regulation, it is questionable whether unpaid volunteers are not in need of a limitation on weekly working hours with the aim of prohibiting them from working more than a certain number of hours from a health and safety perspective. In our view, the concept of working time itself is based on the idea that it is time during which the person has given up autonomy and is not free to determine his/her behaviour. For this purpose, the question of why a person works or how much pay he/she receives is not relevant, as only the fact of working under the direction of another person and not autonomously is of relevance when it comes to the regulation of working time. This approach is backed up by the exception for unmeasured working time in Art 17 para. 1 Working Time Directive. Member States may derogate from the provisions on in-work rest breaks, daily and weekly rest periods as well as from the limitation of weekly working time if, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined, or can be determined by the workers themselves. This mirrors the underlying rationale of the working time regulation that those times worked under close direction of another person have to be restricted and those worked autonomously do not justify statutory interventions and limitations. Pay, or the absence of it, does not change anything in this context. We therefore argue that, taking a purposive approach, the criterion of pay – which makes perfect sense when dealing with the freedom of movement of workers – should not play any decisive role when it comes to the regulation of working time.
Another example is protection against discrimination and harassment. Here, the legal basis extends to include the self-employed as well as workers, as Directive 2000/78/EC covers both as regards employment and occupation (Art 3). This is also due to the fact that this Directive is based on Article 19(1) TFEU, which confers on the Union the power to take appropriate action to combat discrimination on certain grounds. Although the CJEU 48 has held that the scope of that Directive must be construed broadly it is not clear whether it also covers volunteers that are neither workers in the traditional sense nor self-employed persons. The Court points out the activity pursued has to be a genuine and effective occupational activity, pursued on a personal and regular basis for the same recipient, enabling the person concerned to earn his/her livelihood in whole or in part. 49 This would then make the criterion of pay relevant also in this context, and exclude volunteers due to the lack of remuneration. The situation of volunteers is also somehow different from the traineeships that the CJEU considers to be covered by Directive 2000/78/EC due to the fact that they may be regarded as practical preparation related to the actual pursuit of the occupation in question. 50 In the case of S.C.R.L., concerning an unpaid internship, the argument of ‘preparation’ was used anymore as the CJEU applied Directive 2000/78/EC without further ado. 51 It is therefore not clear if unpaid activities are only covered by EU equal treatment legislation if they are performed as preparation for a later economic activity or if they are generally included within the scope of application. A purposive approach taking into account the aim of Directive 2000/78/EC to provide everyone with effective protection against discrimination based on certain grounds would interpret the concept of worker in this context broadly, and would also cover volunteers.
Footnotes
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
