Volunteers, Not-For-Profits and Contract Law: Love or Legal Relations?

Abstract

Volunteers lie at the heart of many not-for-profit organisations (‘NFPOs’) and are the driving force behind the benefits that those organisations provide. Yet, the common law’s treatment of volunteers remains uncertain. Through a review of over 100 decisions which involve the application of contract law principles to volunteering arrangements, this article surveys that uncertainty. Following an exploration of the concepts, entitlements and challenges relevant to contemporary volunteerism in Australia, three difficulties with decision-makers’ treatment of volunteers are identified: (i) divergence from the High Court of Australia’s decision in Ermogenous v Greek Orthodox Community of SA Inc and its rejection of presumptions against the existence of a common intention to create legal relations in not-for-profit settings; (ii) the mechanical assignment to volunteers of intentions of ‘love’ and ‘altruism’ to negative the existence of contractual relations; and (iii) conflation of the principles which govern relationships of employment and the principles which govern contracts generally. This article concludes by first endorsing NFPOs’ use of careful contracting to quell the lack of clarity within many volunteering arrangements, and secondly cautioning decision-makers’ departure from High Court authority and legislative intent.