国际红十字会

)NTER 0ARLIAMENTARY�5NION A joint project of the International Federation of Red Cross and Red Crescent Societies, the Inter-Parliamentary Union and United Nations Volunteers 6/,5.4%%2)3- !.$ ,%')3,!4)/.� ! '5)$!.#% ./4% Preface As part of its recognition of the importance of the International Year ofVolunteers, 2001 (IYV 2001), the Inter-Parliamentary Council adopteda resolution at its 168th Session in Havana urging parliaments and their members around the world to identify and adopt policies to encourage volunteerism and to establish a legislative framework supportive of voluntary action from a good governance perspective. In response, the Inter-Parliamentary Union (IPU), the world organisation of sovereign parliaments, agreed with the International Federation of Red Cross and Red Crescent Societies (IFRC), the largest global network of volunteers, and the United Nations Volunteers (UNV), the focal point for follow-up to IYV 2001, to prepare a Guidance Note on Volunteerism and Legislation for use by parliamentarians around the world. The Note was prepared following extensive consultations, primarily through a questionnaire, with parliamentarians from all regions, North and South, volunteer-involving organisations and Red Cross and Red Crescent National Societies. Supplementary information was obtained from research papers, Internet searches, and face-to-face and phone interviews. The preparation of the Guidance Note is, first and foremost, a recognition of the vital role parliaments play in supporting and nurturing volunteerism. Second, the Note responds directly to instruments passed in recent years, inter alia at the 27th International Conference of the Red Cross and Red Crescent, held in 1999, and the 55th Session of the United Nations General Assembly, in 2000, as well as the IPU Resolution adopted in Havana, in 2001. Lastly, it is expected that this initiative will directly benefit all organisations engaged in supporting and promoting volunteerism, and by so doing, will help the many millions of people who give their time freely in support of the general well-being of their communities, and the vast numbers of people who directly or indirectly receive assistance thanks to the generosity and solidarity of others. By playing an active role, parliaments can positively affect levels of voluntary participation in society. However, the reverse is also true. By not enacting enabling legislation for volunteering, there is the real risk of overlooking an extraordinary national asset and, unwittingly, undermining the very social traditions that are the basis for civic engagement and that bind people together in common pursuits. Volunteering, as an expression of the individual’s involvement in her or his community, is not a nostalgic relic 3 4 of the past. It is our first line of defence against social atomisation in a globalising world, and is a fundamental component of good governance practices. Today more than ever before, action by parliaments is needed to help ensure the most favourable environment possible in which civic engagement and expressions of caring and sharing can flourish. Markku Niskala Secretary General International Federation of Red Cross and Red Crescent Societies Anders B. Johnsson Secretary General Inter-Parliamentary Union Ad de Raad Executive Coordinator United Nations Volunteers Table of contents Page I. Introduction 7 II. Forms of volunteerism 7 III. Volunteerism and legislation 9 A. Areas of law that can have an impact on volunteerism 10 1. Fundamental rights and freedoms 10 2. International law 11 3. Labour law 11 4. Tax law 14 5. Social welfare law 14 6. Immigration law 15 7. Regulatory frameworks for non-profit or charitable organisations 16 B. Establishing a legal framework for volunteerism 17 1. Legal definitions 18 2. General principles of volunteerism 20 3. The relationship between volunteers and volunteer-involving organisations 20 4. Recognition of volunteer contributions 22 5. The role of governments 22 6. The role of members of parliament 23 IV. Conclusions and recommendations 23 5 The fact that good deeds grow in the wild does not free us from the obligation to cultivate them. Sharon Capeling-Alakija, Executive Coordinator (1998-2003), United Nations Volunteers. I. Introduction At the core of this Guidance Note are issues concerning the contribution of citizens to development, safety and social growth, and the desirability of recognising, valuing and promoting voluntary action by citizens in every country. Volunteering is a nursery for good citizenship. It helps build strong and cohesive communities. It teaches people to be responsible citizens and schools them in the process of democratic involvement. It promotes trust and reciprocity, which are essential to stable societies. The Human Development Report 2002: Deepening Democracy in a Fragmented World refers to volunteerism as holding enormous scope for broadening participation in governance and promoting more equitable outcomes for people. The International Year of Volunteers, 2001 (IYV 2001), highlighted the existence of an enabling framework for volunteering as being one of the more important determinants of a flourishing volunteer movement. A growing number of countries, both industrialised and developing, have adopted or are considering adopting national legislation on volunteering. This Guidance Note on volunteerism and legislation (henceforth referred to as the Note) does not purport to cover all areas of legislation on volunteering nor is it a technical document with detailed consideration of each issue covered. It does, however, highlight the principal considerations in any legal framework, including recognition of the legal status of volunteers; the treatment of certain aspects of volunteerism under labour, social welfare and tax laws; the relationship between volunteers and volunteer-involving organisations; and legal provisions for the further development of volunteerism. It also respects the fundamental role of parliaments to enact laws and to have a direct impact on policies that support and promote improved livelihoods for all citizens, especially the more disadvantaged members of society. Finally, it needs to be emphasised that the Note is an advisory, not a prescriptive, document. It should be discussed among interested parties at country level, and a consensus should be arrived at as regards those elements which are likely to enhance the environment within which volunteerism can flourish in any given set of country-specific circumstances. II. Forms of volunteerism Volunteerism is an ancient and global phenomenon. Since the beginning of civilization, a fundamental human value has been people helping people and, in the process, helping themselves. Most cultures have names to describe it: Baranguay in the Philippines; bénévolat and volontariat in France; gotong royong in Indonesia; harambee in Kenya; shramadana in India; mingu in Andean countries; and al taawun wal tawasul in many Arab States. The act is familiar even where the word “volunteer” is not. Volunteerism is strongly influenced by the history, politics, religion and culture of communities. What may be valued as volunteerism in one 7 8 country may be dismissed as low-paid or labour-intensive work in another. Despite the wide variety of understandings, it is possible to identify some core characteristics of what constitutes voluntary activity. First, voluntary activity is not undertaken primarily for financial reward, although reimbursement of expenses and some token payment may be allowed and even recommendable to facilitate access of individuals from all economic backgrounds. Second, it is undertaken voluntarily, according to an individual’s own free will. Third, voluntary activity brings benefits to people other than the volunteer, although it is recognised that volunteering brings significant benefit to volunteers as well. Volunteerism is about people helping, learning and actively participating in communities. Volunteerism has no borders. It is a cross-cutting social phenomenon that involves all groups in society and all aspects of human activity. It can take many different forms, depending on cultural and economic realities of countries and communities. Four expressions of volunteerism evolved out of IYV 2001. Mutual aid in many parts of the world constitutes the main system of social and economic support. It often plays a primary role in the welfare of communities in developing countries, from small informal kinship and clan groupings to more formal associations and welfare groups. It also plays an important role in industrialised countries, particularly in the health and social welfare field, providing support and assistance to those in need. Philanthropy or service to others is distinguished from mutual aid in that the primary recipient of the volunteering is not the member of the group him or herself, but an external third party, although most people would acknowledge that philanthropy includes an element of self-interest. This type of volunteering takes place typically within voluntary or community organisations, although in certain countries there is a strong tradition of volunteering within the public sector and a growing interest in volunteering in the corporate sector. There is also a long-standing tradition of volunteers being sent from one country to another to offer development and humanitarian assistance, both North to South and South to South. A third expression of volunteerism is participation or civic engagement. This refers to the role played by individuals in the governance process, from representation on government consultation bodies to user involvement in local development projects. As a form of volunteering, it is found in all countries, although it is most developed in countries with a strong tradition of civic engagement. Finally, advocacy or campaigning is a form of volunteerism which may be instigated and maintained by volunteers. It may include working towards a change in legislation affecting the rights of people with disabilities, or the introduction of anti-discrimination measures. Through advocacy and campaigning, volunteers have paved the way for the introduction of new welfare services in the field of HIV/AIDS, have raised public consciousness about human rights and the environment, and have been active in the women’s movement. This Note focuses on volunteering channelled through formally constituted volunteer-involving organisations from the voluntary or private sector, as well as through government agencies. However, volunteerism is also very dynamic, and different types of volunteer involvement are not mutually exclusive. Volunteers engaged in philanthropic or service delivery agencies may be involved in advocacy and campaigning as well as in mutual aid arrangements. III. Legislation and volunteerism Until IYV 2001, few States had seen a need to pay attention to the legal issues which have an impact on the willingness and ability of citizens to volunteer. During the extensive preparatory work undertaken for the Year it became increasingly clear that the existence of enabling legislation may be in fact an important contributor to the extent to which volunteerism flourishes in any given situation. The United Nations General Assembly took up this theme and included legislation which encourages or inspires citizens to volunteer among the recommendations for supporting volunteering in Resolution 56/38, adopted at its 56th session, in 2001. The context for this document is the widely recognised need, especially since IYV 2001, to clarify the nature of volunteer environments in the modern world. First, as has been seen, volunteerism takes many forms and makes contributions in many different ways. It is also affected by many influences. These include socio cultural characteristics, the political system, economic structures and wealth distribution, institutional divisions of labour, beliefs and values, traditions and other principles and norms. Some of these features are defined in laws, but many are not. Second, laws and statutes alone cannot fully define the environment for volunteerism. For by its very nature, volunteerism succeeds because of the wish of citizens to make their own contribution. Not only would the spirit of volunteerism be harmed if legislation were drafted with a purpose of control, instead of facilitation, but its very purpose would be distorted. Third, there is a clear trend away from public sector involvement in many of the activities traditionally supported by volunteers. Parliamentary action should also aim to ensure that laws with specific purposes do not restrict opportunities for the enhancement of an enabling volunteer environment. It should also ensure that principles supporting volunteerism are understood and appreciated in wide government circles, including at the local level. In summary, legislation on volunteerism has to be approached with care and with openness as regards the social and cultural make-up of a given country 9 10 and the governance systems in place. Legal reform should not be over emphasised at the cost of attention to the actual norms by which citizens choose to undertake voluntary action. Great care is needed, moreover, to ensure that legislation on volunteering is considered in full consultation with the principal stakeholders, especially from civil society, so that it is fully aligned with real needs and possibilities and does not create additional obstacles. The core of the Note is divided into two sections: Section A discusses the impact that different existing laws have on volunteerism, including: fundamental rights and freedoms, international law, labour law, tax law, social welfare laws, immigration law, and the regulatory framework for non-profit or charitable organisations. Suggestions on ways to promote a favourable legal framework for volunteerism are offered following the presentation of each of the different issues affecting volunteerism. Section B discusses the need for laws which apply specifically to volunteer work. The Note will highlight the importance of having a framework law on volunteerism as a means to ensure, on the one hand, proper legal recognition for all forms of voluntary action, and on the other hand, appropriate treatment of the different elements of volunteerism under areas of law that currently affect its development. Suggestions are offered on legal provisions which can promote engagement in voluntary activity, drawing on existing laws and regulations on volunteering that are in force in different countries around the world. A. Areas of law that can have an impact on volunteerism In the absence of a clear legal definition of what constitutes voluntary work and a volunteer, some laws and regulations can inadvertently have an impact on voluntary action. States should pay careful attention to the way in which international and domestic regulations can affect volunteerism in their country. The following are examples of legal issues that affect volunteerism worldwide. Suggestions are offered on how laws could support an enabling environment for volunteerism. 1. Fundamental rights and freedoms International and domestic laws on fundamental rights and freedoms pro- tect volunteers and delimit the legal scope of voluntary activity, inter alia, when they provide for: • the right to free assembly and peaceful association; • the right not to be required to perform forced or compulsory labour; • the right to participate actively in the political, economic, cultural, and social life of the country; • the right to freedom of thought, conscience and religion; • the right to a safe environment; and • the right to promote human rights and fundamental freedoms.1 Volunteerism should be promoted within the context of these fundamental rights and freedoms. The law should prevent the term “volunteerism” from being misused, for example, to cover illegal forms of compulsory labour. 2. International law Many laws and regulations on international development cooperation and aid provide for volunteer participation through public and private institutions, agencies, and national and international organisations.2 Though these laws encourage and in some way support volunteer participation in international missions and programmes, the protection afforded may not always suffice. In the absence of any nationally and internationally recognised legal status for volunteers, they are often denied the strengthened diplomatic protection that is afforded under public international law to staffs of organisations for which they work.3 To avoid discouraging volunteer participation in international development cooperation and aid programmes run by intergovernmental, government and acknowledged non-governmental organisations whose non-voluntary staff enjoy such protection, governments and parliaments should demand that similar privileges and immunities extend to volunteers. 3. Labour law In the absence of a legally recognised status for volunteers and voluntary work, domestic labour law provisions affect volunteerism in many different ways. The intention of some labour laws is to be inclusive. They expressly or tacitly extend the scope of their application to protect individuals other than paid employees. The issue is whether such protection benefits volunteerism or whether it otherwise imposes unnecessary and undesirable burdens on volunteer users or the beneficiaries of volunteers' services. Unpaid vol- untary work often shares very similar characteristics to paid work or employment: it is productive, valuable and contributes to the economy. Careful attention should 11 Labour law provisions should not discriminate against volunteers. Volunteerism should be promoted within the context of fundamental rights and freedoms. 12 therefore be paid to ensuring that labour law provisions do not discriminate against volunteers. To avoid confusion between the concepts of employment and volunteerism, it may be necessary for some labour law provisions expressly to exclude volunteers from the scope of their application. For example, the general presumption that “work” is “paid work” should not apply to voluntary workers serving non-profit purposes. Volunteerism is non-paid, but it is not always cost-free. The legal concept of “consideration for work” should not apply to any reasonable amounts volunteers may receive, such as reimbursements of out-of-pocket expenses related to their voluntary activities or the board or lodging they may be provided in the course of their work. The law should clarify what kind of compen- sation volunteers may reasonably receive, according to their specific needs and service re- quirements, without being subjected to the general labour law system as “employees”.4 Health and safety Provisions establishing the right to a healthy and safe environment at work are very often inclusive. They require diligent and responsible behaviour on the part of employers with respect to all those who may be affected by their undertaking. These provisions actually guarantee some basic protection for volunteers without imposing any untenable burdens on volunteer-involving organisations. Provisions on the right to a healthy and safe environment should be extended to cover volunteers at work.5 Liability of volunteers Volunteers should be protected in the event of damages or injuries they may cause in the course of their work.6 National law should clarify what kind of compensation volunteers may reasonably receive without being considered as “employees” by the labour law system. The right to a healthy and saf