By James Thomson, Associate
There is no doubt that volunteers play an integral role within the charitable and not-for-profit sector within Australia.
The services provided by volunteers help supplement the efforts of paid employees and management, whilst allowing the organisation to use funds it would otherwise spend on wages, to pursue its objects and activities.
Most people would assume that a volunteer relationship is simply one in which an individual assists an organisation to carry out its objects and activities, whilst not receiving any “wage” or “salary” in return.
But are there other factors involved in determining whether a person is truly a volunteer?
Also, what liabilities might arise for a charity or not-for-profit organisation in engaging volunteers?
For the purposes of this article, we will examine the nature of a volunteer relationship within the context of charitable and not-for-profit organisations. This article does not consider, for example, the legalities of unpaid internships or work experience arrangements, which are separate arrangements.
When engaging volunteers, it is important to understand what makes a volunteer a volunteer.
The law in this area tries to strike a balance between allowing organisations to utilise the valuable resources which are volunteers, and stopping organisations taking advantage of individuals, who really ought to be employed as paid employees.
There is no uniform strict legal definition of a “volunteer” in the context of employment law (although legislation in some Australian jurisdictions has attempted to define the term in other contexts – for example, the Civil Liability Act 2002 (NSW) defines a volunteer as a person who does community work on a voluntary basis).
Although each relationship must be examined on its individual circumstances, the following factors will generally support the proposition that a person is a volunteer of the organisation, rather than an employee:
|(a)||the parties did not intend to create an employer / employee relationship;|
|(b)||the person is not obligated to attend the organisation’s workplace or carry out duties (i.e. the person ultimately decides whether to attend on a particular day and at a particular time);|
|(c)||the person does not expect to receive payment in return for the work performed; and|
|(d)||the person is undertaking the work for the purpose of benefiting the organisation, and not to obtain a private benefit for themselves.|
Importantly, factor (a) will not be persuasive on its own. In other words, even if a person is referred to as a volunteer in an agreement or other documentation, the presence of other factors may determine that the person is in fact an employee.
When it comes to charities and not-for-profits, the issue of whether a person is genuinely a volunteer or employee, is often much more clear-cut than in for-profits.
Despite this, following these tips will help reduce the risk of an employment relationship arising:
(a) You should consider entering into a short form agreement with volunteers, which should outline, among other things:
(i) that the person is a volunteer, and that neither your organisation nor the person intends for an employment or contractor relationship to arise;
(ii) that the person is not obligated to attend your workplace or to provide any certain level of volunteer work, and that volunteer arrangements are flexible;
(iii) that the person is not entitled to receive any payment or remuneration for their work, apart from a reimbursement of reasonable expenses (see below);
(iv) that the person is undertaking the volunteer work for the benefit of the organisation to help it achieve its objects; and
(v) that the person agrees to comply with all workplace health and safety and other policies and procedures of your organisation.
(b) You should avoid formalising regular rosters for volunteers, as this may indicate that the volunteer does not have control over when they attend the workplace.
(c)You should carefully consider any benefits provided to volunteers in return for their work. Whilst small gifts, tokens of appreciation (e.g. certificates of appreciation) and the reimbursement of expenses will almost always be acceptable, the payment of a lump sum to a volunteer should not be made, as that may constitute a payment for services.
Whilst your organisation will not be required to make payments of salary or employment benefits to volunteers, do other liabilities arise?
The workplace health and safety legislation enacted throughout Australia requires that an organisation ensures the health and safety of its volunteers insofar as is reasonably practicable. Although different legislation has been enacted by each of the States and Territories separately, broadly speaking, they can be summarised as follows:
(a) Australian Capital Territory, Commonwealth, New South Wales, Northern Territory, Queensland and South Australia – your organisation will owe duties to its volunteers under the workplace health and safety legislation, unless it is a “volunteer organisation” (i.e. a group of volunteers working towards a community purpose with no paid employees); and
(b) Western Australia – employers must ensure, as far as is reasonably practicable, that the health and safety of other persons (including volunteers) is not adversely affected by things such as work that is undertaken by the employer or their employees, any hazard that arises from that work, or from the system of work that is being operated by the employer generally.
Importantly, in each jurisdiction, directors and other officers of an organisation can be held personally liable for failing to exercise due diligence to ensure that the organisation is complying with its workplace health and safety duties. Directors or officers found personally liable can be subjected to fines and in some cases imprisonment.
It is therefore imperative that organisations (and their directors and officers) ensure that adequate procedures and policies are in place to meet their duties under the legislation, not only to volunteers but to workers in general.
In addition to owing duties to volunteers themselves, in some jurisdictions of Australia, an organisation can become responsible for the acts or omissions of its volunteer.
The law around the vicarious liability of an organisation for the acts or omissions of its volunteers has been legislated by the States and Territories. Although the relevant principles differ between the States and Territories, broadly speaking, they can be summarised as follows:
(a) New South Wales – Generally speaking, a volunteer will not be liable for their acts or omissions done or made whilst volunteering, unless they fall within a specific exception under the legislation (see below). Where a volunteer is not liable, the organisation will ordinarily not be liable for the acts or omissions of that volunteer;
(b) Queensland – Unlike New South Wales, the legislation does not specifically state that an organisation will avoid liability where their volunteer is not liable. Nevertheless, case law suggests that the Courts will be willing to extend the protection from liability to the organisation, similar to the approach of the New South Wales legislation;
(c) Australian Capital Territory, Northern Territory, South Australia, Tasmania, Victoria, Western Australia – Generally speaking, a volunteer will not be liable for their acts or omissions done or made whilst volunteering, unless a specific exception under the legislation applies (see below). In circumstances where an exception applies, an organisation can be held liable for the acts or omissions of that volunteer.
Although it differs between the States and Territories, some examples of the exceptions to the protections afforded to volunteers are as follows:
(a)the volunteer was under the influence of a recreational drug (including alcohol) which impaired their ability to carry out their duties with due care and skill;
(b) the volunteer is acting outside the scope of the activities authorised by your organisation or contrary to instructions given to the volunteer by your organisation;
(c) the liability arises out of the use of a motor vehicle, for which your organisation is required to hold compulsory third party insurance;
(d) the volunteer commits a criminal offence; and
(e) the volunteer’s liability arises out of defamatory conduct.
There is no doubt that volunteers play an integral role in the charitable and not-for-profit sector in Australia.
Whilst engaging volunteers does carry with it some risk both with respect to the volunteer and third parties, the benefits of that vital resource will far outweigh the risks, where that risk is properly managed.
Some practical tips for reducing the risk associated with volunteers, is as follows
(a) have volunteer agreements in place with each of your volunteers, covering at least those matters set out above;
(b) ensure that the volunteer’s role and duties are clearly defined either in the volunteer agreement or in a separate volunteer workplace policy referenced in the volunteer agreement;
(c) ensure that you have other effective policies and procedures in place covering things such as workplace health and safety, bullying / harassment and the use of recreational drugs; and
(d) ensure that all workplace policies and procedures are reviewed regularly.
Directors and officers should also consider committing a portion of Board meetings to discuss and address any workplace health and safety issues that have arisen since the previous Board meeting.
This article originally appeared in Third Dimension- Winter 2016