Introduction
In South Africa, many individuals volunteer in Early Childhood Development (ECD) centers and often receiving a stipend below the minimum wage.
This then led to a critical question and that is to ask whether this practice is lawful or not?
Let us dive deeper into the laws governing volunteering and employment.
Volunteering vs. Employment:
The Basic Conditions of Employment Act (BCEA) defines an employee as someone who works for an employer and receives remuneration and that is in Section 1 of Basic Conditions of Employment Act.
Volunteers typically do not receive payment or receive a stipend not considered remuneration.
However, if a volunteer receives a stipend below the minimum wage, it may be considered employment and thus entitling them to minimum wage protections. In this regard, the Labour Court considers factors like control, dependence, and economic reality to determine employment status as it is shown in the matter between Kylie v CCMA, 2008.
Labour Laws and Volunteers:
The BCEA and Labour Relations Act (LRA) regulate employment relationships.
The National Minimum Wage Act (NMWA) sets the minimum wage (currently R28.79 per hour as of March 2025, and this is in Section 3 of the Minimum Wage Act.
Therefore, paying volunteers a stipend below this rate may violate the NMWA if they are deemed employees.
Section 4 of the NMWA prohibits paying wages below the minimum wage, except for exemptions. This means that if ECD Centres have volunteers and they want to pay them a stipend below minimum wage based on their budgetary constraints, they should apply for exemption.
Lessons from Case Law:
• Kylie v CCMA (2008):
In this matter, the Labour Court ruled that an individual receiving a stipend was an employee and thus emphasised control and dependence factors.
The court considered the nature of the work, payment, and level of control exercised by the employer.
• S v Oakes (2018):
In this matter, the court held that stipends below minimum wage may constitute employment and thus entitle individuals to minimum wage protections.
The court prioritised substance over form and thus focused on the actual employment relationship.
Implications for ECD Centers:
If volunteers are deemed employees, stipends below minimum wage may be unlawful.
ECD centers should review arrangements to ensure compliance with labour laws, and thus consider factors like control, dependence, and economic reality.
Potential risks include non-compliance with BCEA and NMWA, possible unfair labour practice claims, and reputational damage.
Conclusion:
In conclusion, volunteers in ECD centers receiving stipends below minimum wage may be entitled to minimum wage protections. Therefore, Employers should review their arrangements to ensure compliance with labour laws, and thus prioritising substance over form.
Rex Molefe
(The Director of Motheo Training Institute Trust)
