Voluntary work (work, ie, without pay) looks like an oxymoron. At a first glance, it seems to refer to undeclared work (or “moonlighting”), “exploitation of man by man” and so on. But is that the case?
Work and pay: an (unbreakable?) bond
We have already seen the inextricable link between work and pay in an earlier article. There, we also found the value of the payment (and the consequences of non-payment) of the salary. This all seems perfectly normal. The employee has a (reasonable) claim and the employer has a (justified) obligation to pay it. Moreover, the payment of the salary is the compensation from the employer for the employee’s work.
The vital importance of salaries is evidenced by a wealth of data. Among other things, from the enactment of special legislative provisions, aimed at protecting salaries and ensuring their payment.
Reasonably, then, one wonders if and how there can be voluntary work. The answer, in order to be given, presupposes the (given) separation of voluntary from dependent work.
An important point worth mentioning: Voluntary work is not dependent work. Based on this fact, voluntary work does not fall within the scope of Labor Law. Consequently: voluntary work is not regulated by the provisions of labor law.
Voluntary work: the lack of legislation
The institution of voluntary work is not new. As an “old” institution, it is widely known and widespread. It has many, well known, forms.
Voluntary work will be found in non-profit bodies and organizations. In bodies exercising public power. In political parties. In legal entities of private law of non-profit character. But we will also find them in legal entities of a speculative nature. We will touch on this particular category below.
So, despite the fact that volunteering is widespread, there is no relevant legal provision. It is unfortunately not regulated by law. Its existence, however, is recognized. We find it in both theory and jurisprudence. Its existence is accepted (and this is interesting) in Governmental documents. Worth mentioning are the documents No. 2418/10/93 and 21829 / 04.08.2014 of the Ministry of Labor. Wherever we find a mention to voluntary work, the following assumption is always there: its distinction from dependent work. Discrimination based on the finding that the element of dependence is missing in voluntary work..
The “freely” provided voluntary work
Voluntary work is provided freely. In other words: the employee does not provide their services on the basis of their will or obligation to work under an employment contract, but on the basis of their voluntary disposition (Supreme Court 180/2000).
In case law, but also in the Documents of the Ministry of Labor, as voluntary employment contracts are recognized those in which the provided “work” is based (indicatively) on: (a) family ties (eg: Court of first instance of Thessaloniki 1332/1988), (b) friendship (eg.: Supreme Court 712/2001), (c) engagement or cohabitation (eg: Supreme Court 2007/2019), (d) moral obligation (e.g.: as well as (e) political reasons (eg: Court of first instance of Athens 464/2000), ideological, philanthropic, etc.
The content of the specific, indicatively listed, legal relations (for the legality of voluntary work) has, in general, the legal basis of contractual freedom (361 CC).
The lack of a legislative framework more specific than the principle of the freedom of contracts creates the need for a written record of this contractual relationship. It does not seem logical to sign a contract with the person with whom we may be living or with the person with whom we have a close, brotherly, friendship. It is, however, as necessary if we consider that it will not be paradoxical to require proof before a third party (of the Labor Inspectorate, for example, EFKA or the competent Court).
The agreement on non-payment of salary
The existence (or not) of the dependency element is one of those elements that distinguish the dependent employment contract from related contracts (also see: Employment Contract (Distinction From Related Concepts & The Protection of The Company).
In the case of voluntary work, the lack of the dependency element (advocated by the voluntary provision of services) must be accompanied by an agreement for the non-payment of a salary.
It is important to be clear that he one who voluntarily provides “work” is not one of the “employer’s” employees. And this can only arise from a written, explicit and specific, relevant contract. However, the mere omission of reference in the employment contract to the amount of the employee’s remuneration cannot be equated with the employer’s lack of obligation to pay wages.
[It should be noted here that, in general, when there is no individual agreement on the amount of remuneration and it is not possible to resort to the legal salary, the employer is obliged to pay the usual salary (articles 649 & 653 of the Civil Code). The salary, ie, that would be received by an employee of the same specialty with the same qualifications and qualities, providing similar work, under similar conditions. However, the introduction of the minimum wage has replaced, in most cases, the need to resort to the ordinary wage. A similar need still exists, for example, in standby contracts].
In the case of voluntary work, non-payment of salary or other compensation is de facto agreed. The value of the “work” offered, in this case, cannot be sought even by the provisions of unjust enrichment. Voluntary work is provided, as already mentioned, freely – for no consideration. As a result, the wealth that may be generated for the recipient of the services is based on a legitimate cause. It cannot, therefore, be described as unjustified. It is also not possible (and for the same reason) to be sought (Supreme Court 180/2000).
Criteria for designating a contract as voluntary work
Elements of the voluntary employment contract are: (a) the lack of the element of coercion and (b) the agreement for non-payment of wages. The existence of these elements, however, does not necessarily mean that this is a voluntary employment contract. A contract of employment may be concealed.
Moreover, the designation by contractors of a contract as voluntary work is not binding on the competent authorities. As we pointed out in a previous article: “the characterization of a contract, as the exclusive task of the judicial authority belongs to the court (Ind .: Supreme Court 602/2017, Supreme Court 608/2014, Plenary Session of the Supreme Court 7 & 8/2011, Plenary Session of the Supreme Court 6/2001)”.
Document No. 21829 / 04.08.2014 of the Legal Department of the Labor Inspection Body of the Ministry of Labor lists specific elements, which must be taken into account when investigating the provision or not of dependent work. Specifically: (a) the type and duration of work, (b) the employer’s activity (c) the requirement for the one working voluntarily to have special skills, (d) the fact that the provision of services is the profession of the volunteer and their main means of livelihood, (f) the existence of a kinship or other kind of relationship, (e) the possible conclusion of a contract.
If the above criteria (and the facts in general) support the existence of dependent rather than voluntary work, the administrative sanction is not of minor importance. The competent Labor Inspector will, in this case, impose a fine of € 10,500 for each (undeclared) employee. And this, with captive competence, without prior invitation of the employer to provide explanations (article 65 of law 4635/2019).
The obligation (or not) of the employer to pay insurance contributions
Finally, a question arises regarding the existence (or not) of the employer’s obligation to pay insurance contributions in favor of the one who provides voluntary work. (We refer, of course, to the cases where there is no (hidden) dependent work).
The answer to the above question is given by article 2 §1 f. Of law 1846/1951 (LAW ESTABLISHING THE GREEK SOCIAL SECURITY AGENSY). It is specified, in particular, that the insurance of this law compulsorily and automatically includes “persons who within the borders of the country provide professional work for a fee, as such understood and provided on behalf of Legal Entities of Public Law regardless of legal nature of the relationship (public or private law) “.
As already mentioned, voluntary work presupposes a lack of dependence and, in addition, an agreement for non-payment of wages. Therefore, there is no obligation of the employer to pay insurance contributions in favor of the employee voluntaring.
Elements associated with employment contracts are those of dependence and salary. Of course, it does not seem tolerable, at first sight, to accept unpaid work. Unless it is voluntary “work”.
Although voluntary work is not regulated by law, it is nevertheless a reality. And as such it is accepted by theory and jurisprudence. Even from the Ministry of Labor and its bodies.
But in implementing this form of “work” it is necessary to be very careful. And when we choose it, we have to manage it even more carefully. The existence of the relevant, content-wise, conventional text seems (basically) absolutely necessary.
A possible failure to prove the basis and existence of voluntary work is inevitably linked to (underlying) dependent work. And, at the same time, with severe penalties for the business, organization or body to which it is provided.
The (free) meeting of the needs of the latter is important.
But more important is their (maximum possible) protection.
Stavros Koumentakis
Managing Partner
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.