THE LAW’S AN ASS…

So what is the difference between a volunteer, an intern and a worker?

Recently, there has been a lot of fast changing terminology used to advertise and describe unpaid work in the cultural sector. Many organisations are now advertising their internship positions as ‘volunteer’ positions because various campaigns including a recent union case won by BECTU proved that what some organisations have been calling internship is actually defined as work. The National Minimum Wage legislation says that everyone working in the UK is entitled to be paid at least a minimum rate set by the law (£5.80 per hour for workers aged 22 years and older, July 2010). The use of the term volunteer has been adopted by many organisations in order to sidestep this definition.

Here are some current definitions. They are important to know to know what it is you are doing and what your rights are, but, as you will see, the law is not currently set up to protect interns…which means there is more work to be done!

Interns

Interns normally have significant knowledge of their chosen area of work and are being given the opportunity to develop and apply the skills they have obtained in the working environment. Interns have a duty to perform meaningful and valuable work for an organisation, and for this reason, the organisation equally gains from the internship.

According to Skillset and BECTU, activities that are undertaken as part of general internships (that is, internships that are not part of a degree or other educational course) are defined as work. In other words, the individual is obliged to carry out certain tasks within given frameworks and is therefore performing as worker. Employers must therefore pay the minimum wage and adhere fully to National Minimum Wage legislation throughout the duration of the internship. Its important to remember that the National Minimum Wage is generally less than the average starting salary and corresponds to the fact that while the internship is a learning process, there is real gain for the employer.

If an internship is part of structured educational programme (a degree course placement, for example) it is not strictly neccesary for this work to be paid. However, BECTU and Skillset recommend that a basic wage is offered in recognition of the value the intern brings to the organisation.

According to the Trade Union Congress (TUC) some employers think that interns have no employment rights just because their post is advertised as an internship or a volunteer position. As you can see from the definitions above, it is primarily the way you are treated by the organisation that affects your legal status, regardless of the initial agreements. For example, if you are set a schedule, if your skills are being relied upon, if you are not working in addition to the normal group of staff, if you are obliged to give notice of leave etc. you are defined as a worker. As in a recent case taken on by the union BECTU, it was possible to prove that an ‘intern’ in the media industry had actually accumulated legal rights as a ‘worker’ or ‘employee’, and gained National Minimum Wage back pay.

According to TUC, provided that the internship is not confined work-shadowing, on top of the right to National Minimum Wage, an intern is likely to have rights to paid holidays, protection from excessive working hours, and to not be discriminated against at work. “If you do regular paid work for your employer you may also qualify as an ‘employee’. If so, you will benefit from a much wider range of employments rights, including unfair dismissal and redundancy rights and family friendly rights.”

What’s Wrong With This Picture? While this designation demands rights for interns as workers, it does very little in requiring internship placements to provide the very learning experience in the name of which internships were developed and by which they are frequently justified.

Volunteers 

Under National Minimum Wage law, the crucial difference between a worker and a volunteer, is that a volunteer must not be placed under any ‘obligation’ to perform any activities in accordance with employers instructions. In other words, volunteers:

i. must not be bound to any particular shift rota or set number of working hours per week;

ii. must be able come and go as they please;

iii. must not be put in a position where their specific skills are being relied on by the employer;

iv. must not be subject to rules and procedures that would integrate them into the business as a staff member would be;

v. must be additional to the normal staff complement (if the volunteer is not, there is an inference that they are relied upon and have obligations to work);

vi. must not operate under any mutuality of obligation i.e. an obligation on the employer to provide work and an obligation on the individual to accept it (this would be the case if for example, either party is required to give notice);

vii. must be paid work related expenses

There is a specific conditional exemption in National Minimum Wage legislation for ‘voluntary workers’ who work for a charity, a voluntary organisation, an associated fundraising body or a statutory body. This exemption is designed to allow people who genuinely wish to work without profit for good causes to continue to do so without qualifying for the National Minimum Wage.

What’s Wrong with this Picture? This exemption from the National Minimum Wage presents a problem for those working in the public sector or charities who, by virtue of being called a ‘volunteer’ have very few rights, including those of learning, training and pay.

Workers

Workers must always be paid at least the National Minimum Wage, currently £5.80 per hour for those aged 22 and above, £4.83 for those aged 18-21 and £3.57 for those under the age of 18, who are no longer of compulsory school age.

A ‘worker’ is defined as someone who works under a contract of employment (written or implied) whereby there is an obligation on the individual to perform the work and an obligation on the employer to provide the work.

What’s Wrong With This Picture? It is clear that the minimum wage discriminates on the basis of age and that even for its top contenders (people over 22) it amounts to between 10,000 and 12,000 per year i.e. totally unliveable!

The law’s an ass! While it’s great to learn that as interns we have the right to demand a wage, it is clear that the law is not fully up to the job of defending our rights as free workers. If an employer in the public or charitable sector (which encompasses most arts organisations) calls us volunteers they are under no obligation to support our learning, to pay us or to provide equitable conditions. As the unemployment rates soars, public cuts are ushered and legions of workers are re-named ‘volunteers’, these are precisely the conditions against which we must rally now!