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Voluntary Work, Legal Barriers

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Voluntary, unpaid work based on good will is one of the most significant
factors enabling the development of the s ector of non-government organizations. In
the case of some of them it constitutes an essential conditi on of their functioning, as
such organisations either do not employ any full time staff, or such employment
consists of only a few persons who are necessary to run the office, whereas most of the
implemented tasks are taken charge of by volunteers.
Voluntary commitment as a phenomenon mu st have existed since the beginning
of mankind, but only relativel y recently has this phenomenon been given a name and
efforts are being made to institutionalise it. In Poland the development of voluntary
work in this latter sense dates back togeth er with the growth of the sector of non-
government organisations to the early nine teen-nineties. Organisations which based
their activities on the performance of voluntar y work have of course existed much
earlier, but in the period of real socialism their operation in practice was characterized
by far reaching peculiarity. Apar t from organisations attached to the Catholic Church
(although here also the authorities of thes e times attempted to intervene), other
organizations were characteri zed by greater or lesser dependence on the state and party
administration. In this situation it woul d be difficult to regard them as „non-
government” organisations, whic h also had to exert an impact upon the nature of the
then performed voluntary work. Such work was often a particular way of expressing
loyalty with respect to the authorities, wh ich assume the grotesque form of semi-
forced “pro-social activities”.
The recovery of independence and the ch ange of the political system have cause
that the sector of non-gove rnment organizations and the phenomenon of voluntary
work began to grow in their authentic di mension. At the expense of giving up the
fictitious mass coverage, the presently ex isting non-government organisations are a
reflection of authentic social strivings and initiatives. A similar phenomenon concerns
voluntary work. In the overwhelming majority of cases it is an expression of authentic
needs of the individuals con cerned, who express in this manner their strong social

A specific feature of voluntary work in the past decade is the fact, that to a large
extent it concerns young people: high sc hool and university students. This
phenomenon can be explained by the stronger inclination to altruism, linked with age,
and also greater availability of time that can be committed. The work of persons who
are not yet legally mature as voluntaries i nvolves, however, a number of detailed legal
The development of voluntary work has not been followed so far by any new
legal measures, in spite of the fact, that over the past decade a large part of the
prevailing legal order in Poland has been re constructed. Man acts of law have been
issued that concern such areas of life, which hitherto were not regulated at all, or had
been regulated only in a fragmentary manner. In many cases one might doubt, whether
the respective regulation by an act of law ha s indeed enhanced any improvement of the
non-legal reality, or whether the only effect consists of a specific „inflation” of
legislative acts.
Among the representatives of non-governme nt organisations there prevails a
widespread conviction that the phenome non of voluntary work requires to be
comprehensively regulated, either in the form of a separate legislative act, or in the
form of provisions in the drafted law on non-government organisations. A partial
reflection of such expectations is found in the prepared draft law on the cooperation of
the bodies of public administration with non-government organisations and amending
a number of existing laws. It can be expected, however, that the provisions of the
above indicated draft concerning the probl ems of voluntary work will not meet the
expectations in terms of the degree of detailed regulations.
It seems that the expressed expectati ons do not find their reflection in real
barriers of a legal nature, which the non-government organi zations encounter in their
practical experience of working with volunteer s. In order to identify such barriers it
would be necessary to undertake such prac tical activities, which are currently not
being adopted due to legal obs tacles, whether any such change could indeed lead to
the facilitation (simplification) of the activities undertaken already today. Most
representatives of non-governme nt organizations asked about legal problems point at
purely hypothetical threats, such as have never actually occurred in practice. In
addition, most of these hypothetical situations could be satisfact orily solved on the
basis of the already existing legislation.
The above described expectations of the representatives of non-government
organizations can be linked to the enormous increase of significance of the law as a
regulatory factor in social relations, which took place afte r 1990. One of its indications
consists of the generally pr evailing expectation that the law should separately regulate
every kind of social relations. The above tendency may on the one hand be positively
assessed, as the expression of departure from the practic es prevailing under communist
rule, when many issues were be ing resolved in an informal way, independently or even
against the then existing and binding legislation, on the basi s of authoritarian decisions
of the organizational units of the party or according to various behavioural habits


stemming from not fully clear sources. On the other hand, however, the belief in the
omnipotence of the law, as an instrument for shaping social relations, can be an
expression of a phenomenon ju stifying the concerns about the phenomenon of the
decline of social ties based on norms of a different nature.
The social expectations that an appropr iate law should cover every area of life,
are reflected in the adoption of legal acts, the provisions of which make the impression
of describing the phenomen a existing in reality, and not pronouncements of a
normative nature. Such provisions, when subjected to legal interpretation by means of
classical rules that are in force, will not provide for the facilitation of practical
activities, but will only generate new barrier s, which would most probably not have
appeared at all if there was no such regulation.
I believe that the above observation should always be kept in mind, when
thinking about the necessary legal change s concerning voluntary work. Otherwise it
might turn out that only the introduced legislative changes will cause the emergence of
legal barriers preventing the deve lopment of such a phenomenon.


The purpose of the deliberations contained in the present part of this paper is to
determine the legal nature of work pe rformed by a voluntary. It may be an
employment relationship, or any of the civ il law contracts to provide services, which
in typical situations implies a [temporary] contract of mandate or a contract to perform
a specific task. Additionally the problem will be consider ed, whether the contribution
of work by a voluntary can be deemed to be a donation in the light of the regulations
of the Civil Code.
Pursuant to Article 22 § 1 of the Labour Code (L.C.) by contracting an
employment relationship the employee commits to perform work of a specified kind
for the employer and under his manageme nt, whereas the employer commits to
employ the employee in return for cons ideration. Employment on such terms
constitutes employment on the ba sis of an employment relationship, regardless of the
name by which the contract concluded by the parties is called (Art. 22 § 1
1 L.C.). An
employment relationship may be establis hed based on an employment contract,
nomination, appointment, or a co-operativ e contract of employment (Art. 2 L.C.).


It follows from the definition presented above that one of the essential elements
defining an employment contract consists of the obligation of the employer to provide
the payment of remuneration. The right of th e employee to receive fair remuneration is
one of the principles of the law on labour (Art. 13 L.C.).
The above indicated features of a labour relationship imply that it is unsuitable
as a basis for the performance of work by a volunteer. It is worth adding that it would
not be feasible to conclude an employm ent contract with a volunteer including the
provision of remuneration, which would then be followed by the resignation on the
part of the volunteer to collect its payment. According to Art. 84 L.C. an employee can
neither renounce his rights to re muneration, nor can he transfer that entitlement to any
other person. Any actions contradicting this regulation would be unconditionally
invalid, and the employee concerned could demand the payment of his remuneration
The issues of the law on labour give ri se the concerns expressed sometimes by
representatives of non-government organisati ons, whether the labour protection organs
performing the respective in spections might not question the work performed by
volunteers and assume that the parties c oncerned are in fact bound by an employment
relationship. Such action c ould have far reaching unfavour able consequences for the
organisation employing a volunteer in the form of a fine for misdemeanour foreseen in
the Art. 281 item 1 L.C., the necessity to pay up the implicit remuneration to the
volunteer for all of his services performed, and also the necess ity to pay social security
contributions and to fulfil all the other ob ligations foreseen by the provisions of the
law on labour.
A certain basis for such concerns may be provided by the fact that in practice
the basic criterion applied by some labour inspectors and labour courts in order to
qualify a given legal relations hip consists of the relationship of subordination (work
performed subject to „management”) bindi ng the person performing the service of
work with the other party. In typical s ituations the volunteer does not undertake his
activities completely independently, but should comply with the guidance provided by
the other party, which organizes his work.
In spite of the above i ndicated feature of a volunteer’s work, there can be no
doubt that the activities performed by hi m are not contained by any employment
relationship. The subordination alone is not sufficient to conclude that an employment
relationship comes into play, and this criterion is most significant in the practice of the
labour inspection organs only because of th e fact, that the most frequent problem,
resolved by these authorities consists of the definition of the legal nature of
relationships based on remunera tion. There should be no doubt th at in the case of clear
indication of the unpaid nature of the serv ices provided by a volunteer, he is not bound
with the other party by any employment relationship.
On the sideline it should be mentioned, that the use of the word “work” should
not be questioned in relation to the se rvices performed by a volunteer (as it is
consistently applied in the present paper). This word may be used to have a broader

meaning than just the performance of duties under an employment relationship and it
does not have any “magic” power causing the transformation of any given legal
relationship into an employment relationship.
To substantiate the above stipulations it is worth mentioning that in spite of the
concerns expressed by representatives of non-government organisations there has been
no known of case in which the organs of labour inspection would formally question
the nature of the services provided by a volunteer, and in consequence of any attempt
to qualify a given legal relati onship as being subject to the regulations of the law on
The above conclusions do not mean, howeve r, that in some cases the work of
volunteers is not subject to the application of certain provisions of the Labour Code,
and in particular the regul ations concerning work safe ty and hygiene. A detailed
review of this subject is presented in Chapter II section I of the present paper.
According to Art. 627 of the Civil Code , by a contract to perform a specific
work task, the party accepting an order comm its to produce a specified work, and the
ordering party to pay considera tion. In the doctrine it is stressed that as such a contract
has the nature of agreement on the expected result. The party accepting the order ought
to produce the respective work. It is not suffi cient that he undertakes specific actions
in order to perform it. The subject of contr oversy consists, however, of the very nature
of the produced work. It can both consist of material objects and of intangible ones. In
the second case, according to the overriding positi on, it is stressed that the work in any
case should be preserved in a material object and in consequence any results of human
work not contained in a tangible medium should be excluded from the scope of this
The relationship between a volunteer a nd the party on behalf of which he
performs his services, as a rule , does not foresee the necessity to arrive at a specified
result. For the volunteer to meet his obliga tions it is usually enough that he has just
undertaken certain actions. But one cannot completely rule out the situation when the
volunteer should accomplish a specific result and that that result could be regarded as a
work task performed in the meaning described above.
According to the above indicated defi nition, even in such a case the legal
relationship between the volunt eer and the party on behalf of which he performs work,
cannot be regarded as a contract to perfo rm a specific work task. The necessary
elements of such a contract include the obligation to pay c onsideration. It is a mutual
agreement. The legal relationship by virtue of which one of the parties assumes the
obligation to perform a specific task wit hout remuneration, cannot be regarded as
contract to perform a specific task.


According to Art. 735 of the Civil Code (C.C.), by accepting a contract of
mandate the party receiving the mandate assumes the obligation to performed a
specified legal action for the party granting the mandate. Most cases of voluntary work
could not fit in the above definition. The activities of a volunteer, as a rule, do not
consist of performing legal actions. When a contract of mandate is mentioned in
common parlance, and also in the language of many legal acts not pertaining to civil
law, we have in mind the cont ract of the kind mentioned in Art. 750 C.C. According to
that provision, contracts for the performance of services that are not regulated by any
other legal provisions, are subject to the re spective application of the provisions on the
contract of mandate.
Such a contract seems to be a convenien t instrument for the formulation of the
rights and obligations of volunteers. First of all, it is worth stressing the fact that a
necessary element of a contract of manda te does not consist of remuneration – a
mandate may also be performed free of charge. A certain threat for the party
employing the volunteer might consist of the content of Art. 735 § 1 C.C., according
to which, if the contract or the circumstan ces do not indicate the implication, that the
party accepting the mandate has assumed the obligation to perform it without
remuneration, payment of re muneration is due for the performance of the mandate. In
connection with this provision it should be recommended to clearly indicate during the
first conversation with any volunteer, th at he cannot expect to receive any
remuneration. In order to pr oduce suitable evidence in the event of litigation in court,
it would be desirable to conclude the cont ract in writing. The simple formats of
contracts with volunteers that function in pr actice should be regarded as meeting the
basic legal requirements.
When evaluating the detailed consequen ces of the contract of mandate, they
should be regarded as an institution provi ding an adequate legal framework for the
functioning of volunteer work. It is stressed that the mutual relationship of parties to a
mandate is based on confidence. It seems that a similar rule should prevail in the
relationship between the volunteer and th e party for which he performs work.
The principle of confidence prevailing between the parties to a contract of
mandate is reflected in the po ssibility to entrust the mandate to a third party only if that
is provided for by the respective contract, or stems from custom, or if the mandatory is
forced to do so by the circumstances (Art. 738 § 1 C.C.). Without the mandator’s
consent the party accepting a mandate may renounce the met hod of performance of the
mandate indicated to him if there is no possi bility to obtain such consent, and yet there
are justified reasons to believe that the manda tor would have agreed to such change, if
he knew about the existing state of affairs (Art. 737 C.C.). A particular expression of
the role assigned by the legislator to the confidence prevailing between the parties
consists of the principle, that either of them may give notice of termination of the
mandate at any time whatsoever, and the respective contract cannot renounce in
advance the option to apply the right of contract termination on important grounds


(Art. 746 C.C.). The application of this principle in relation to volunteer work seems
particularly pertinent.
The legal provisions concerning contra cts of mandate also resolve the issues
connected with the expenses incurred by vol unteers. According to Art. 742 C.C., the
mandator should reimburse to the mandatory any expenses incu rred by the latter in
order to duly fulfil the mandate, together w ith statutory interest. The mandator should
also release the mandatory from any liabilities that the latter has assumed for the same
purpose in his own name. If the performance of the mandate requires expenses to be
incurred, the mandator should provide the respective advance to the mandatory upon
his request (Art. 743 C.C.).
The above regulations concerning the contract of mandate seem also to be
adequate for the institution of voluntary wo rk. Certain doubts might arise, however, in
connection with the sometimes stressed feat ure of a mandate, which consists of the
lack of subordination of the mandatory to th e mandatory. This feature, according to the
consensus of opinion among the competent sc holars, constitutes the basic difference
between the contract of mandate and the employment contract.
In most cases, the volunteer performing hi s work ought to apply the instructions
given by representatives of the institution, on behalf of which he provides his services.
In connection with the above the doubt aris es, whether this kind of subordination may
be contained in the framework of the contract of mandate.
I believe that the answer to this que stion should be a positive one. The contract
of employment is not the only legal relations hip, in the framework of which the person
performing a service is obliged to apply the instructions of the other party. Such an
obligation might also exist in the mandate re lationship, as indirectly implied by Art.
737 C.C., which defines the cases in which the mandatory has the right to renounce the
method of mandate performance indicated by the mandator. According to the position
represented by the academic knowledge of th e law, the indication of the method of
performance of the mandate may take place both at the time when the contract is
concluded, and in the course of its performan ce. Such instructions may be of a detailed
and imperative nature.
Keeping the above comments in mind, it s hould be accepted that the contract of
mandate provides the appropriate framewo rk for the performance of work by a
The explanation of the existing relations between vol untary work and a
donation needs to be deemed as necessary owi ng to the stipulation contained in Art. 21
section 3 of the draft law on the co-opera tion of the bodies of public administration
with non-government organiza tions and on the amendment of certain other laws.
According to that provision the value of the work performed by a volunteer does not
constitute any donation to the respective non-government organisation.

According to Art. 888 § 1 of the Civil Code, in a contract of donation the donor
assumes the commitment to provide free of ch arge service to the beneficiary of the
donation, at the expense of his own assets. The scope of the above definition is
appended by the provisions of Art. 889 C.C. According to that provision the following
free of charge benefits do not constitute donations:
1) if the obligation to provide a free of charge benefit is the consequence of a contract
regulated by other provisions of the Code,
2) if someone renounces the right, which he has not yet obtained, or which he has
obtained in such manner, that in the event of renouncement such right is regarded as
not obtained.
The combination of the above indicat ed provisions allows to draw the
conclusion that voluntary work is a phenome non that is not contained by the definition
of donation. Although the volunteer perform s a free of charge service providing
benefits, but this is not done at the expense of his assets. Moreover, in accordance with
the former comments concerning the manda te, it should be recognized that the
obligation to provide free of charge serv ice results from a contract subject to
regulation by other provisions of the respective Code.
Owing to the above analysis, the provision indicated above should be regarded
as unnecessary.



In some situations the volunteer provides services that could be fully replaced
by work performed by employees. Frequently it is so, that the same activities under
similar circumstances are performed for a given institution by both volunteers and
workers on employment contracts. In connec tion with the above, some representatives
of non-government organizations have been raising the postulate, that the work of
volunteers should be subjected to at least so me of the provisions of the Labour Code,
e.g. with respect to the obligation of undergoing medical examinations, or the
requirement to assure safe and hygienic working conditions.
The above issues are in part already regulated by the Labour Code, and this act
provides additional possibilities of extending so me of its provisions to apply also to
other legal relationships.

According to Art. 304 § 1 L.C., the employer is obliged to assure safe and
hygienic working conditions, wh ich are mentioned in Art. 207 § 2 L.C., to physical
persons performing work on a basis different from the employment relationship at the
work place or at the location determined by the employer. Th e obligations specified in
Art. 207 § 2 L.C. are applie d accordingly to the entities that organise the work
performed by physical persons on a basis other than the employment relationship, in
the framework of socially beneficial works (Art. 304 § 3 L.C.).
The second of the indicated provisions s eems to refer directly to the institution
of volunteer work.
Art. 207 § 2 L.C., to which the formerly presented provisions refer, rules that
the employer is obliged to pr otect the health and life of the employees by means of
assuring safe and hygienic working cond itions, applying accordingly the respective
accomplishments of science and technology. In particular, the employer is obliged to:
1. organise the work in a manner assuri ng safe and hygienic working conditions,
2. assure the observation at the work pl ace of the provisions and principles
concerning safety and hygiene at work, to give instructions to remove any
deficiencies in this respect, and to control the execution of such orders,
3. assure the execution of orders, interventi ons, decisions and instructions issued
by the organs in charge of the inspection of working conditions,
4. assure the execution of the recommendati ons of the social labour inspector.
Specific duties related with work safety and hygiene will also apply to the
volunteer. According to Art. 304 1 L.C., the duties mentioned in Art. 211 L.C., concern
also the physical persons performing work on a basis other than the employment
relationship. These duties encompass, i.a., the knowledge of the respective regulations,
participation in the training sessions, perfo rmance of work in accordance with the
work safety and hygiene princi ples and regulations, the application of the orders and
guidance provided by the superi ors in this regard, etc.
Infringement of the above obligations by the volunteer or by the institution
employing him, might cause the civil liability of the party concerned, rather than
responsibility according to the princi ples defined in the Labour Code.
According to the scholars views on the law, an employer, when entrusting the
performance of some competencies to phys ical persons under a civil law contract
(including volunteers), should assure them safe and hygienic working conditions, but
has no duty to treat them as employees. He does not need to refer them to initial and
periodical medical inspections, does not ha ve to organise their training, etc.
The provision, which enables to extend further norms of the law on labour to
cover the voluntary relationshi p consists of Art. 303 § 2 L.C. According to it, the
Council of Ministers may specify in an or dinance the scope of application of the
provisions of the labour law to persons permanently perfo rming work on a different
basis than the employment relationship or a c ontract to perform subcontracted work at
home, together with the modifications resulting from the different conditions of
performance of such work.

The above statutory delegation has not been utilised so far. If it were decided,
that some of the provisions of the labour law should be extended to embrace the
voluntary relationship, there is the possibility to make use of the above indicated
simple course. Prior to taking the decision concerning such an issue, one should first
consider whether the imposing of a num ber of often expensive duties upon the
institution employing a volunteer shall not in practice hamper the implementation of
the goals of volunteer commitment. On th e other hand, utilization of the above
indicated delegation could enable, for exampl e, to account for the period of volunteer
activity as part of the years of work se rvice, on which the employee’s rights depend.
1. Voluntary Work as Income
Institutions, for which the volunteers pe rform their work, are as a rule legal
entities or other bodies subject to taxation on the same principles as juridical persons.
In connection with the above, the comments below are devoted to the issues related
with corporate income tax.
According to Art. 12 section 1 item 2 of the Act of 15 February 1992 on
corporate income tax (Official Journa l – Dz.U. of 2000, No 54, item 654 with
subsequent amendments) taxable income co mprises, among other things, the value of
benefits received free of charge. In the ab sence of any reservation allowing different
treatment, the above formula should be regard ed as embracing also the value of work
performed by volunteers. It follows from the talks conducted, that in practice the tax
office are not excessively rigorous in ex ecuting the above provision, although cases
have also been noted of demands to asse s the value of the work done by a volunteer.
Guidelines concerning the method of su ch assessment are contained in Art. 12
section 6 of the aforementioned law. Accord ing to it, the value of free of charge
benefits in the form of provided services is determined in the following manner:
1) If the object of the benefits c oncerned consists of services that are part of business
activities of the subject performing the services – in accordance with the prices
applied to other parties;
2) If the object of benefits consists of services purchased – in accordance with
purchase prices;
3) In any other cases – on the basis of market prices applied for the provision of
The fact that the value of a volunteer’s wo rk is, in principle, a form of income
subject to corporate income taxation, does not constitute in practice a barrier to the
development of voluntary work. Most of the parties for which such work is performed,
enjoy various kinds of tax exemptions. One such exemption is foreseen by Art. 17
section 1 item 4 of the Act on corporate income tax. According to this provision, the
income of taxpayers, whose purpose consists of scientific activities, research and
technology development, edu cation, including the education of students, cultural
activity, that concerning physical culture and sports, environmental protection,
supporting social initiatives to build roads, telecommunications networks in the rural


areas, water supply to rural settlements, professional and social rehabilitation of
disabled persons, and religious worship, is exempt from taxa tion in the part devoted to
the above listed ends.
In connection with the above, in practic e, the work of volunteers should have
any tax significance mainly for entities invol ved in commercial business activities. In
such case there are no strong arguments in fa vour of the respective tax exemptions. In
connection with the above, the maintenance of the current situation, in which the work
of a volunteer is in principle taxed, but tax exemptions apply in connection with the
nature of the conducted activities, seems to be acceptable from the axiological point of
2. Volunteer’s Income Related with Work
A volunteer does not receive any remunera tion for his work. In most cases, the
institution that employed him, reimburses to the volunteer the expenses incurred on
behalf of that institution. The above indicat ed situation does not give rise to doubts if
only the directly incurred expenses are reimbursed. In such case we are not dealing
with any income of the volunt eer as construed by the Act on personal income tax of 26
July 1991 (official Journal – Dz.U. of 2000 No 14, item 176 with subsequent
amendments). In the practice of non-government organisations the postulate arises,
however, that a volunteer ought to be able to receive, without any necessity to pay tax,
all the benefits that can currently be received by the employees without any tax
According to Art. 21 section 1 of the Act on personal income tax, the following
items are tax exempt:
a) The value of service clothing (uniform), if wearing it is part of the employee’s
duties, or a money equivalent for such uniform;
b) The value of benefits in kind resulting from the regulations on work safety and
hygiene, as well as equivalents for such benefits paid in accordance with the
regulations issued by the Council of Mini sters or by the competent minister, and
also money equivalents for the use one’s own clothing and shoes instead working
clothing [provided by the employer];
c) The value of non-alcoholic drinks and meal s issued to employees for consumption
exclusively during the time at work, without any right to receive an equivalent on
that account;
d) Money equivalents for the use by the empl oyees for the performance of work of
their own tools, materials or equipm ent, which are their own property;
e) The value of benefits of providing, at the employer’s expense, of accommodation
for the employees in worker hotels and pr ivate quarters rented for the purpose of
collective accommodation, or making residen tial housing available to employees in
the case of their employment away from their permanent place of residence –
costing monthly up to the value not exceed ing the triple minimum wage value as
announced pursuant to separate legislation, for December of the previous tax year;


f) Amounts received by empl oyees on the account of the costs of using motor cars for
the purposes of the employer up to the valu es specified in separate regulations by
the competent minister;
g) The value of the meals consumed at the company canteen maintained by the
employer or another specialised organi sational unit as subcontracted by the
employer, with the exception of an equivalent for such meals;
h) The value of benefits granted by the empl oyer to improve vocational qualifications
and general education of the employee, in accordance with separate regulations.
The above indicated benefits (as well as others) are exempted from personal
income tax provided that they were rea lised for the benefit of the employees
concerned. Similar benefits performed fo r the volunteers still remain subject to
In connection with the above, among th e representatives of the non-government
organisations stipulations are arising, that the relationship of th e volunteers should be
subject to similar tax privileges as the em ployment relationship. The above postulate
could be fulfilled, e.g. by the appropriate amendment of the law on personal income
tax. The same direction has been taken by the draft provision of Art. 21 section 4 of
the Act on the cooperation of public ad ministration bodies with non-government
organisations and on the amendm ent of certain other laws.
Noting the arguments in favour of the sti pulated changes, one needs to indicate
at the same time, that such a delicate area as the tax law, might be a d
ifficult domain
for the introduction of the respective amendm ents. The magnitude of the difficulties is
indicated by the fact that similar tax allowa nces as for persons performing work on the
basis of an employment contract, have been denied to the numerous category of people
employed on the basis of civil law contracts.
1. Social Security
Social security should be regarded as consisting of retirement and pension,
sickness and accident insurance. According to Art. 6 section 1 item 4 of the Act of 13
October 1998 on the social security system (Official-Journal – Dz.U. No 137, item 887
with subsequent amendments) compulsory retirement and pension insurance applies to
physical persons performing work on the basis of an agency agreement or contract of
mandate, or any other service agreement, to which, in accordance with the Civil Code,
the regulations concerning the mandate a pply. Such persons are not subject to
mandatory retirement and pension insurance, if they are high-school or university
students until the age of 26 years. (Art. 6 sec tion 4). In accordance with Art. 9 section
1 of the above indicated law, such pers ons are also not covered by the mandatory
retirement and pension insurance, if they are covered by such insurance on the account
of entitlements mentioned there, among wh ich the first and foremost is the
employment relationship.

The stipulation that a volunteer and the institution for which he performs his
services are tied by a mandate relationship (or rather the relationship to which the
regulations concerning a cont ract of mandate are applied) causes that the above
provisions also apply in this case. The ac t on the social insurance system does not
differentiate the situation of the contract s of mandate, which are performed against
remuneration, and contracts, in the case of which the performance is done free of
charge. This conclusion gives ri se to further consequences.
Mandatories may be subject to voluntar y sickness insurance (Art. 11 section 2).
According to Art. 12 section 1 they are manda torily subject to accident insurance. The
last principle is subject to the exception fo reseen by Art. 12 section 3. According to
these provisions the mandatory is not subject to accident insurance, if he is performing
his work away from the headquarters or location where the mandatory conducts his
A problematic issue in the case of volunteer-mandatories is the issue of the
basis for the calculation of soci al security contributions. In the case of the contract of
mandate, such basis is determined by as ma ny as two different regulations. According
to Art. 18 section 3, if the contract of mandate determines the payment for its
performance as a lump sum, an hourly rate or output related rate, or as a commission,
that basis is provided by income. If it is not fe asible to determine the base in the above
indicated manner, the base is provided by a declared amount, but it cannot be less that
the amount of the minimum wage (Art. 18 section 7).
In spite of the letter of the above re gulations, in practice the volunteers are not
reported to social security for insurance. This is partly justified by the fact that most of
them are recruited among pupils or students, who are not subject to such insurance.
Equally frequently the volunteers are subject to social insurance on the account of
being in an employment relationship. The absence of the practice of reporting for
social insurance purposes exists also in the situations, when according to the above
presented regulations such reporting should be done.
Researching this issue I contacted many inspectors of the Social Security
Institution (ZUS), and also the head office of the ZUS. These agencies were
completely surprised by the problem rais ed, they quoted completely different
interpretations of the above le gal situation. It seems that according to the best thought
out interpretation originating from the ZUS head office, volunteers should be reported
to social insurance, they should be account ed for on the lists of the insured, but one
should not pay the contributions for them , and on the respective forms one should
write “0”. This would also imply, that the earlier indicated Art. 18 section 7 of the Act
on social insurance, demanding to assume as basis for the calculation of the
contributions the declared income , would not apply to volunteers.
The above experiences indicate that th e law on the social insurance system is
not adapted to the needs re lated with existence of voluntary work. Paradoxically,
however, if the above presented interpreta tion were accepted, this could lead to
extremely advantageous consequences for the volunteers. Without need to pay the


contributions they would be thus covered by accide nt insurance. Detailed
consideration of the consequences of acci dents, which might be suffered by volunteers
are presented below.
In connection with the above comment s one should ask the Social Insurance
Institution (ZUS) to confirm in writing th e above described interpretation of the
regulations, and in the case of obtaining a pos itive result, to undertake efforts to arrive
at the consistently uniform practice of the branch offices and inspectorates of the ZUS
in the country.
An alternative to the above action woul d consist of undertaking efforts to cause
the adoption of appropriate legislative ch anges, so as to obtain a clear position
concerning the issue of the regulation of voluntary work in the provisions regulating
social insurance. This solution ought to be regarded as more proper from the point of
view of the requirements of the state as ruled by the legal order, but one can hardly
suppose that it could result in solutions as favourable as the one implied by the above
2. Health Insurance
According to Art. 8 item 1e of the Act of 6 February 1997 on the universal
health insurance (Official Journal – Dz.U. No 28, item 153 with subsequent
amendments) the obligation of health insurance covers, i.a., the persons subject to
social insurance or the social insurance of farmers, who perform work on the basis of
an agency agreement or a contract of manda te. In connection with the fact, that the
necessary condition for being covered by hea lth insurance on the above basis consists
of the mandatory being cove red by social insurance, the above presented comments
apply also to this problem area. The reco mmended actions should also be of a similar
In performing his duties a volunteer might suffer from an accident giving rise to
various consequences for hi s health. Taking such situations into account some non-
government organisations concl ude accident insurance contracts for the benefit of their
volunteers. In the prevailing legal system, however, there are no regulations
anticipating the obligation to conclude such contracts, and the organisations that
conclude them do it on the basis of purely moral motives.
In spite of the fact that the spirit of justice would demand to compensate a
volunteer for any personal injury suffered in connection with the performance of his
work, one should proceed with caution with respect to the possible introduction of
mandatory insurance. Such an obligation could be a substantial burden for the
institution, for which the work is performed, leading in consequence to the slow down
of the development of voluntary work practices , or to the emergence of a situation, in
which the binding norm foreseeing the above indicated duty would be generally

An alternative to such a solution could consist of the adoption of the
interpretation described under the item III.1. above. If that assumption is adopted, the
volunteer, as the mandatory, could in some case s be subject to accident insurance. In
such case, in accordan ce with Art. 6 item 5 of the Act of 19 December 1975 on social
insurance of persons performing work on the ba sis of contracts of agency or contracts
of mandate (Official Journal – Dz.U. of 1995 Nr 65, item 333 with subsequent
amendments) a volunteer would be eligible to money benefits on the account of an
accident suffered when perform ing to the contract. In connection with the possibility
of such interpretation, it should recomme nded to address the Social Insurance
Institution (ZUS) with a request for the official interpreta tion by the Social Security
Institution (ZUS). In accord ance with the comments presented under the item III.1.
above, the alternative to such a move could consist of making an effort to initiate the
introduction of appropriate legislative changes.
In the course of performing his duties a volunteer might cause damage to a third
party. In such cases the liability of the in stitution on behalf of which he performs his
work will come into play, pur suant to Art. 429 or 430 C.C. According to the first of
these provisions, whoever entrusts the performance of given actions to another person,
is responsible for any damage caused by the perpetrator when pe rforming the activity
entrusted to him, unless he is not at fault in terms of the choice made, or if the
performance of the given action was entrusted to a person, enterprise or institution,
which perform such actions as part of their professional activities. The above
regulation concerns the situation, wh en between the volunteer and the given
organisation there is no relationship of s ubordination, and the volunteer organises his
work independently.
A much more frequent case is that when such subordination does occur. This
issue is covered by Art. 430 C.C., accord ing to which whoever on his own account
entrusts the performance of an action to a person, who in performing such action is
subordinated to his management and is obliged to follow his instructions, is the one
responsible for any damage caused by the fault of that person in performing the
entrusted activity. Art. 430 C.C. is comb ined, as a rule, with the employment
relationship between the person entrusting an action and its executor. In spite of the
above, I believe that there is no obstacle pr eventing its application to those cases of
voluntary work, where the volunteer is not independent and is oblig ed to observe the
instructions of his superior.
One of the grounds for liability on the basi s of Art. 430 C.C. consists of the
fault of the volunteer. If a volunteer causes da mage to a third party owing to his own
fault, his personal liability with respect to that party comes into play, on the basis of
Art. 415 C.C. It should be stressed that Ar t. 120 § 1 of the Labour Code, according to
which in case of damage being caused by an employee in the course of performance of
his duties on the job to a thir d party, it is exclusively the employer that is liable to


provide the compensation for such damage, will not apply to a volunteer. The above
norm might give rise to doubts, howeve r, from the axiological point of view.
Summarising this passage of the present paper it should be noted that with
regard to the liability of a volunteer and of the orga nisation employing him with
respect to third parties, the general provi sions of the Civil Code on tortuous liability
should be applied. These regulations, as the fruit of thousands of years of experience,
correctly allocate the burden of the incurred damages and any legislative interference
whatsoever would not be justified here.
Since the year 2000 voluntary work has become a term sanctioned by
legislation. The term „volunteer” functions in Art. 33k section 8 of the Act of 29
November 1990 on social aid (Official Journa l – Dz.U. of 1998 No 64 with subsequent
amendments), introduced by the Act of 18 February 2000 on the amendment of the
Act on social aid and the Act on pensions and retirement benefits from the Social
Security Fund (FUS) (Official Journal – Dz .U. No 19, item. 238). According to this
regulation, in the implementation of care and education at a guardianship care and
educational institution, as well as in fam ily substitute care, support may be provided
by the work of volunteers.
The conditions of using the work of volunteers at guardianship and educational
institutions have been regulated by the ordina nce of the Minister of Labour and Social
Policy of September 1, 2000, concerning the guardianship a nd educational institutions
(Official Journal – Dz.U. No 80, item 900). This issue is covered by § 22 of that
ordinance. It determines the purposes of a volunteer’s work, the conditions that it must
meet, and also the content of the contract concluded with a volunteer.
According to the above indicated ordi nance, to become a volunteer, the given
person must meet the following conditions:
a) be of full legal age, without criminal record,
b) must have been informed about the specific nature of educational work and the
requirement to observe confidentiality con cerning the affairs of the children in the
custody of the given institution,
c) has been insured by the di rector against civil liability for damages arisen in the
course of work.
A contract concluded with a vol unteer should specify the following:
a) the scope of tasks, undertaken by the vol unteer, and the duration of the cooperation,
b) the volunteer’s commitment to act in agreement with the director or an educator
designated by him,
c) the commitment to observe confidentiality concerning the matters of the children
staying at the given institution.
The ordinance also foresees the issuance by the director of the institution of an
opinion concerning the volunteer’s work for that institution.


The above regulations are still quite new and therefore it is difficult to
determine, whether they will stand the test of practice. In connection with the above,
any legislative interference concerning this issue would have to be premature.
One of the more frequent kinds of volunt eer activities consists of participation
in various kinds of fund rais ing and collection of contribu tions for charitable purposes.
This issue is regulated by the Act, orig inating still from the period between the two
world wars, of 15 March 1933 on public collec tions (Official Journal – Dz.U. No 22,
item 162 with subsequent amendments) and the ordinance of the Minister of the
Interior issued on its basis of 14 Ju ly 1934 on the methods of conducting public
collections and the control to be exerted over such collections (Official Journal – Dz.U.
No 69, item. 638).
According to Art. 7 of that law, public collections may be conducted only by
members of the institution which has obt ained the respective permission, or by
members of institutions having similar objec tives, or by persons invited by their name
by such institutions. Persons organising or conducting th e collection cannot receive
any remuneration for their activities.
A serious barrier to the participation of volunteers in charitable collections
consists of the provisions of the above indicated ordinance. According to them, in the
arrangement and conduc t of public collections children and youth up to the age of 18
years cannot participate, nor can school youth, with the exception of university
students (§ 12). This provision remains in blatant contradiction with the existing
practice, and its consistent execution w ould lead to serious difficulties for the
functioning of many ventures , including first and foremost the Great Festive Aid
The current status, when the existing pr actice stands in outright contradiction
with the regulations of the law, must unequivocally be negatively assessed. In
connection with the above, one ought to recommend that complete resignation from
the above provision or the alleviation of its requirements (e.g. by introducing a
provision that minors may participate in coll ections under the supervision of adults, or
that minors under the age of 16 may not participate in such collections).
The requirement foreseen by the above quoted ordinance is that the persons
conducting a collection must be provided with appropriate identity cards. Such cards
should be authenticated by an orga n of public administration (§ 13).



The above deliberations may lead to the conclusion that the binding legal order
requires correction only with regards to a few issues of a detailed nature, so as not to
create barriers to the development of vol untary work. The voluntary relationship has
been qualified among the existing legal institu tions, which in their greater part have
been functioning in reality for many years. In connection with the above, however, the
legal regulations concerning th e analysed issue are very dispersed, which causes many
representatives of the non-government orga nisations to gather the provisions on
voluntary work in the framework of a single, comprehensive regulation.
The advantage of such regulation would consist of it being easier to use in
practice, especially for persons not disposing of a legal education. The status of the
volunteer with respect of different areas of the law would be regulated, at least within
its basic scope, in a single legal act.
In spite of the above argument, it seems that at the present moment the
introduction of comprehensive regulation s hould not be recommended with respect to
voluntary work. Such a measure would requi re the introduction of a definition of
voluntary work. Such a step is always accompanied by very serious risks.
At the present time, in the binding legal order, such a definition does not exist
even in the few legal acts, which clearly refer to voluntary work. „Voluntary work”
does not even have any precisely establishe d definition also in the common colloquial
language. The Dictionary of the Polish Language (ed. M. Szymczak, Warszawa 1981,
p. 750) indicates, that it is a „form of trai neeship without remuneration in hospital by a
medical doctor to obtain the specialist title”. The quoted definition illustrates very well
the novelty of this phenomenon, which did not exist in practice in the period of
communist rule. In connection with that, however, the dictionary cannot provide any
help at the present time. In the pr actice of the operation of non-government
organisations, voluntary work is defined as „free of charge, conscious, voluntary
activity for the benefit of others, extending beyond the ties of family, acquaintances or
friendship” (according to the „Volunteer Work Centre”). This de finition, in turn,
seems to be too broad, as it would also in clude such phenomena, as assistance at mass
by the altar-boys, or the activities of volunteers in election campaign teams.
Some features of voluntary work give rise to disputes in practice. For example,
according to one view, a necessary featur e of voluntary work is that the work
performed in such framework could not by any means be replaced by work performed
under an employment relationshi p. According to this position, a volunteer is a person
who accepts to assume such ta sks, which an employee would not or could not perform.
The above position seems to be isolated. In most cases the work of a volunteer
could very well be replaced by work on the basis of regular employment. But views
are much more divided on the issue of whet her voluntary work may be regarded as the
performance of tasks for the benefit of speci fic entities in the hope of gaining regular
employment with them. It is worth noti ng, that such activities may not only be


performed for organisations of the „third sector”, but also for commercial entities. If a
sufficiently broad definition of voluntary work is adopted, professional traineeships by
students might also not be complete ly excluded from being covered by it.
The above presented difficulties with the construction of the respective
definition may serve as an argument agains t undertaking an attempt to regulate the
issue of voluntary work in a comprehens ive way in the Polish legislation. The
definition adopted in an act of law would eith er have to be too broad, or too narrow.
The first solution would in consequence lead to the regulation embracing a
number of different phenomena, which acco rding to common sense have nothing in
common with voluntary work (e .g. all kinds of traineeships with commercial entities
in the hope of gaining employment there). In connection with the probability of
privileges being granted to vol untary work in a future regulation, this would be likely
to create a field for all sorts of abuses. Su ch a situation implies the distortion of the
idea of voluntary work and the deteriorati on of its evaluation by the general public,
which could in consequence lead to the decline of interest in that kind of activity in the
situations, in which voluntar y work does indeed play its definitely authentic and
positive role.
The adoption of a too narrow definition gi ves rise, in turn, to the danger of
emergence of the situation, in which cert ain kinds of activities would not be covered
by it at all. This in turn, assuming the sometime justified method of a contrario
interpretation, could lead to the situation, when legal conditions of some kinds of free
of charge voluntary performance of work w ould substantially deteriorate. Such an
effect may be obtained, as a future regul ation concerning voluntary work would most
certainly foresee significant privileges fo r the volunteer and for the entity for the
benefit of which such work is preformed. Some of these privileges, however, would
probably be completely new, although some of them can also be found by means of
interpretation in the currently ex isting legislation. The laying down expressis verbis of
the second type of privileges in the law, and the limitation of the scope of regulation
only to some forms of voluntary work would lead in consequence to the situation, in
which an orientation of in terpretation would appear th at would deny a similarly
privileged position to those forms of activity , which are not contained in the adopted
narrow definition of voluntary work.
A good illustration of the above indica ted threat could be provided by the
consequences of adoption in th e wording as proposed in the draft of Art. 21 of the Act
on co-operation of the or gans of public administration with non-government
organisations and the amendmen t of certain other laws.
According to Art. 21 section 1 sentence 1 of that draft, the work for the benefit
of implementation of the statutory tasks of non-government organisations may also be
performed on a voluntary basi s and without remuneration. This provision concerns
exclusively the work pe rformed for the non-government organisations. Its
interpretation a contrario causes, that one may questi on the acceptability of voluntary
and free of charge performance of work fo r any other entities. The adoption of such


interpretation could threaten the practice of the performance of certain activities, e.g.
directly for the benefit of hospitals, wh ich are not non-government organisations.
Also the practical activities of existing Voluntary Work Centres would be at
risk. One of the basic activitie s of these associations consists of brokering jobs for
volunteers. Voluntary Work Centres collect and transmit data concerning persons
wishing to work as volunteers and about institutions and persons wishing to make use
of their assistance. A volunteer contacting such a Centre receives proposals to apply to
a suitable institution wishing to employ him. Such institutions might consist of other
non-government organisations, but also of other entities, such as hospitals, social
welfare homes, etc. If the provision proposed in the draft law would be adopted, it
seems that the work of a volunteer referred by the above kind of Cent re to a hospital in
order to provide care for the sick patients w ould not be covered by the content of Art.
21 section 1 sentence 1, as care for the sick is not the statutory task of the Voluntary
Work Centre.
Negative consequences of the adoption of a contrario interpretation may also
concern the other provisions of Art. 21 of this draft law. For example, according to
Art. 21 sentence 1, persons w ho perform work in that manner for the benefit of a given
organisation, may have the necessary relate d costs covered by that organisation. At
present, the expenses incurred directly by volunteers are covered anyway (although
some tax privileges applicable to employees are not available – see more extensive
discussion of this issue in chapter III, section II.2.). The introduction of the discussed
regulation as formulated in the present dr aft can give rise to doubts, whether the
respective expenses may be covered by institutions other than non-government
According to Art. 21 section 3 of the dr aft law, the value of the work performed
by a volunteer is not a donati on for the benefit of the given organisation. This
provision when interpreted a contrario might give rise to doubts, whether unpaid
work performed for other entities should not be regarded as a donation. At present
there can be no doubt that such work is not a donation (more about this issue in
Chapter II, section IV).
When presenting the above doubts I do not claim that a contrario interpretation
in the above described cases is the only co rrect one, and that by adopting appropriate
methods of interpretation one could not defend the opposite position. But it should be
stressed that the appearance of doubts as the ones depicted above may be regarded as a
serious threat resulting from the adoption of the definition of voluntary work as
contained in the proposed draft law.
At the present moment, in the situation of absence of any such definition, the
issues that are relevant from the legal point of view, consist of determining, whether
work performed voluntarily and without re muneration, is done on the basis of a
contract of mandate, whether the party benef iting from such work is liable with respect
to third parties on the basis of Art. 429 or 430 C.C., etc. From this point of view it is a
neutral issue whether such performance is to be qualified as a case of voluntary work.


The current legal problems may be resolved on the basis of many years of practical
experience and tradition. The introduction of a definition of voluntary work, most
likely cutting across the traditional legal concep ts, could lead to chaos with regard to
this issue.
In consequence I believe that a comp rehensive regulation of this phenomenon,
whether in the form of a separate legislative act, or as a pr ovision in the law on non-
government organisations is unde sirable. The necessity connected with such a step of
adopting a legislative definition could le ad to many threats to the dynamically
developing phenomenon a nd deprive some forms of voluntary work of the privileges
that they enjoy already at the present time.

dr Marcin Krajewski