Volunteers are integral to supporting many charities with their services. If you are involved in managing a charity, it’s important to that you understand the process involved when hiring volunteers as well as any legal issues that may arise. Hiring and managing volunteers in the appropriate manner is also a necessary risk management measure, as you may be responsible for the actions of your volunteers in certain circumstances.
Definition of Volunteer and Employment Relationships
When bringing on volunteers, you should think about the type of work the volunteer will be doing, the level of commitment and expected outcomes. Volunteers should not replace the role of an employee but rather enhance and increase the amount of assistance the charity can provide to the community. If the commitment is very formal and not based on how much time the volunteer wishes to commit, the role may be classified as an employment relationship under the Fair Work Act 2009 (Cth).
Factors that differentiate a volunteer from an employee include:
- A volunteer and charity are not intending to create a legally binding relationship, as an employee and employer would.
- A volunteer has entirely different expectations than that of an employee as they are not required to attend if they have another commitment.
- The volunteer has no expectation of payment for working for the charity.
After defining the type of work you would like from your volunteers, you need a thorough hiring process. Volunteers are there to assist because they believe in the cause or issue the charity addresses, not to meet the charities’ ongoing needs. The volunteer should gain benefit through the work, rather than the charity itself benefiting from the volunteer’s work. Internships can also be problematic as organisations can sometimes hire interns who are deemed employees. For more information on the legal issues around internships specifically, you can read our article here.
Volunteer Agreement and Hiring Process
This process involves finding appropriate volunteers for the opportunities you have available and ensuring that the volunteer is best placed to help. At this stage, many charities request working with children or police checks depending on the nature of the work the volunteer will be doing.
Charities must develop a clear job description and requirements document so the volunteer can determine whether the charity is the right fit for them. Charities who work with volunteers should draft a Volunteer Agreement clearly setting out the volunteer’s role, what it entails and also make clear that the role is unpaid and not employment. A Volunteer Agreement should set out obligations, role, rights, IP issues, privacy, workplace health and safety, discrimination legislation and how to terminate the agreement.
Volunteer Rights and Protections
Even though volunteers are not employees, they still have many legal rights. It’s then important that you use your workplace, health and safety policies and procedures as you would with any employees. Volunteers should be properly trained and educated on workplace, health and safety in their capacity as volunteers working in your office or out in the field.
Working with Volunteers, Insurance and Liability
When working with volunteers, ensure that you have the correct insurance in place (e.g. Personal Accident to Volunteers Insurance) and know whether you could be held liable for the actions of your volunteers. In many states and territories, liability may automatically be transferred from the volunteer to the charity.
Contrastingly in NSW, Part 9 of the Civil Liability Act 2002 (NSW) (the Act) addresses this and liability does not automatically transfer.
This set out in section 61 of the Act:
A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:
(a) Organised by a community organisation, or
(b) As an office holder of a community organisation.
The protection does not apply to defamation or any other civil liability excluded from the Act generally under clause 3B. It also does not apply to accidents that would be covered by third party insurance or any other that the volunteer is required to have in place by law.
In Victoria, a similar provision is set out in the Wrongs Act 1958 (Vic) s 37. Part 9 of the Act also sets out some exceptions to the limiting of volunteer’s personal civil liability, for example:
- If they were intoxicated or impaired at the time and failed to “exercise reasonable care and skill,”
- They were undertaking a criminal act at the time the act or omission took place, or
- They were acting outside the confines of the volunteer work, or against the instructions provided.
The laws differ in each state and so you should seek legal advice if you are unsure of your obligations and if your charity operates across multiple states.
As discussed above, defining the role of the volunteer is an important risk management step. If the volunteer’s role and obligations are clear and they step outside these obligations, it will be much easier to show that they should have known what they were doing was wrong.
Ending Volunteer Relationships
Your Volunteer Agreement should set out the termination process. Although the requirements are not the same as an employment relationship regarding notice or reasons for dismissal, it is still best practice to have a process in place. Volunteers still have rights in respect of discrimination so it’s important that you end a volunteer relationship in a structured manner and clearly set out your reasons.
When relying on and working with volunteers as a charity, it is important to have policies around interviewing, hiring, working with and terminating the relationship. As a volunteer manager, you should take risk management steps around safety and insurance seriously to avoid leaving your charity open to liability for the acts of your volunteers. Even if your volunteers are not receiving payment for their work, your organisation is open to risk for injuries caused by them. If you have any questions, find out more about engaging volunteers on the ACNC website.
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