Ballkids are in the news, and it has nothing to do with the tennis

Simply calling someone a volunteer, without properly classifying them, is not enough to prevent an employment relationship from being formed and could bring your organisation unstuck, writes Andrew Brooks.

Andrew Brooks • 24 January 2023 • NewLaw

The Australian Open, one of the most prestigious tennis tournaments in the world, has come under online scrutiny for its alleged treatment of its ballkids. Held annually in Melbourne, tournament organisers run a rigorous selection process for ballkids, with over 2,500 applying for the sought-after roles each year.

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Anyone who has watched the tournament will appreciate the pivotal role ballkids play in retrieving balls and keeping the game running smoothly — often in soaring summer temperatures. Despite the intense pressure and hard work required of them, it has been reported that ballkids are not paid for their time at the tournament and are classed as volunteers rather than employees.

This has sparked debate on social media, with many questioning whether or not ballkids should be paid for the hours they work. This was further inflamed when it was reported that ballkids were previously paid for their work at the Australian Open but were reclassified as “volunteers” back in 2008 and that other Grand Slam tournaments, such as Wimbledon and the US Open, apparently do pay their ballkids.

Whilst some see this as unfair or even exploitative treatment, is it legal?

Volunteers v employees

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Although there is no overarching, clear-cut legal definition of a “volunteer” under Australian law, simply calling a worker a volunteer (or an unpaid intern, trial worker etc.) will not be determinative on its own. In other words, organisations can’t simply decide what classification is easier to administer and pay in accordance with that approach.

Instead, the relationship will be determined by a court or commission looking at a range of different factors. For example:

Is the organisation a not-for-profit;
Is the volunteer program designed to benefit the organisation or the volunteer;
Does the volunteer simply perform tasks that are normally performed by an employee;
What benefits (if any) do they receive (including whether any financial value is obtained);
Is there a volunteer agreement in place;
Are they represented as volunteers or employees; and
What controls are in place for the volunteers (i.e. do they have to give notice to stop volunteering, do they have to attend the workplace etc.)

Put more eloquently by commissioner Hampton in McDonald [2016] FWC 300, a volunteer is “someone who enters into any service of their own free will, or who offers to perform a service or undertaking for no financial gain. The commitments shared between the parties are usually considered moral in nature, rather than legal.”

Therefore, if it looks and feels like a formal employment relationship, it likely will be one.

Why does the distinction matter?

The volunteer versus employee test is vital because if an organisation fails to classify volunteers correctly, they can be exposed to considerable penalties, both against the company and personally, as well as being required to provide back pay (for leave entitlements, minimum wages, superannuation etc.)

There are also new wage theft laws popping up around the country, including in Victoria, that can result in criminal penalties where organisations and/or individuals deliberately and dishonestly withhold employee entitlements.

Takeaway tips

Whilst the ballkid debate will likely roll on, it provides a helpful call to action for all organisations that rely on volunteers to test their own programs, and ensure they are utilising them safely and in accordance with the law.

We recommend that organisations that rely on volunteers ensure they:

Have an up-to-date volunteer agreement in place that correctly reflects a volunteer arrangement (i.e. hours, termination, policies, confidential information etc.);
Try to avoid payments or financial benefits being provided to volunteers (which can, on occasions, imply an employee relationship);
Treat them publicly and behind the scenes as a different classification to your employees;
Properly articulate why you have volunteers in the first place;
Properly induct them so that they are safe whilst volunteering and know where to go with concerns and questions; and
Seek legal advice if they are unsure.

Andrew Brooks is an employment and workplace relations Lawyer at Law Squared.

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