Volunteers
Many community organisations are completely volunteer-run, or rely heavily on the commitment and support of their volunteers. There are many organisations, like Volunteering Victoria, Volunteering Australia, and local volunteer resource centres and skilled volunteering groups which can link you with potential volunteers. They often have online resources about volunteer recruitment and management issues. We have provided links to some of these organisations in the Related Resources section below.
However, the focus of PilchConnect is on the legal issues that may arise when attracting, screening, selecting and managing volunteers. Your organisation owes its volunteers certain legal obligations. These are sometimes hard to work out - the way that the law applies to volunteers is often very different from the way that it applies to employees and independent contractors. Also, there are laws which provide that, in certain situations, your organisation will be held legally responsible for the actions of its volunteers. This makes it crucial for your organisation to have good volunteer management practices and policies (and insurance) in place.
The following resources are designed to provide Victorian community organisations with basic legal information about volunteers. We will be adding more resources in the near future.
The information on this website is intended as a guide only, and is not legal advice. If you or your organisation has a specific legal issue, you should seek advice before making a decision about what to do.
Who is a volunteer?
While this might seem a simple question to answer, in legal terms it is not. But it is a very important distinction to understand. Very different legal rights, financial benefits, entitlements and obligations apply, depending on whether a person doing work for your organisations is an employee, an independent contractor or a volunteer. The line between these different types of 'workers' is not always clear!
In Victoria, the law does not have one settled definition of a volunteer. Instead, to decide whether a person involved in your organisation is a volunteer (as opposed to an employee or independent contractor), your organisation will need to look at the nature of the relationship between your organisation and person. The law says that there are certain indicators (attributes) which are usually present in each type of relationship and these help determine what kind of 'worker' that person is.
Your organisation should be aware of the generally accepted 'attributes' of a volunteer, to make sure it does not engage in the kind of actions (such as certain payments or arrangements) which might lend weight to a claim that a person is no longer a volunteer but has become, for example, an employee.
We have provided a guide on this issue (below).
Guide: Employee, contractor or volunteer?
The law recognises many different categories of relationships where one party (a worker) performs work for another party in exchange for payment or reward. These include, among others, the relationships of 'employer and employee' and 'principal and independent contractor'.
The law also recognises a separate category of worker known as a 'volunteer'. This type of worker performs work for another without an expectation of, or legal requirement of, payment or reward.
It is important for your community organisation to know which category of ‘worker' is undertaking work in your organisation. This is because different legal entitlements and obligations apply, depending on whether the worker is an employee, an independent contractor or a volunteer.
This Guide will help Victorian not-for-profit community organisations to understand how the law treats different kinds of working relationships. It outlines:
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the importance of correctly classifying different working relationships;
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the basic legal differences between employees, independent contractors and volunteers; and
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an overview of some of the main legal obligations an organisation owes to its employees, independent contractors and volunteers.
The Guide is available for you to download, below:
What legal issues should we consider when we take on a new volunteer?
The attraction, recruitment and appointment of new volunteers is a critical period, in terms of the legal issues that may arise for a community organisation. Putting in a bit of effort to get your organisation's 'volunteer engagement' process right will save your organisation a lot of potentially difficult legal issues further down the track. A simple document like a volunteer agreement, which sets out the role and responsibilities of the volunteer, and is signed by your organisation and the volunteer, can go a long way to prevent legal issues arising in the future.
Do occupational health and safety laws apply to volunteers?
All community organisations that have employees, or that operate in a 'workplace' have an obligation under the Occupational Health and Safety Act 2004 (Vic) to protect the health and safety of their volunteers.
PilchConnect have developed a guide to help community organisations to work out their obligations under Victoria's occupational health and safety laws. Please see our Running the organisation > Occupational health and safety page.
WorkSafe Victoria has also recently (October 2008) released resources for community organisations which we have linked to in the Related Resources section below.
What other legal obligations might our organisation owe to our volunteers?
Even if not covered by the provisions of the Occupational Health and Safety Act 2004 (Vic), a community organisation may owe its volunteers a duty of care under the common law (case made law) of negligence, or under the negligence provisions in the Wrongs Act 1958 (Vic).
This means a community organisation may be liable for any acts or omissions made by the organisation, which result in an injury to a volunteer or damage to their property. There are a number of legal tests that must be satisfied, before your organisation will be held liable for negligence.
Negligence claims (by volunteers or, for that matter, anyone) against community organisations are rare and we have not developed any resources in relation to this topic. Your organisation should look to operate in a way that reduces the risk that your volunteers will be injured whilst volunteering for your organisation, and should also look at getting appropriate insurance coverage (see Getting started > Insurance and risk management). Your organisation should seek legal advice about its potential liability if you think legal action may be brought against your organisation.
Can our organisation be legally responsible for the actions of our volunteers?
The answer is yes - in certain circumstances. In Victoria, there are laws which provide that some volunteers are not personally liable for anything done (or not done) in good faith while doing community work that is organised by a community organisation.
These laws provide that any liability (legal responsibility) resulting from the actions of these volunteers may transfer to the community organisation, and the community organisation will be held liable for compensation to people who are injured, instead of the volunteer.
These laws are set out in the Wrongs Act 1958 (Vic) and are known as the volunteer civil liability protection provisions. The policy aim is to not let the fear of liability discourage people from volunteering.
The fact sheet and checklist below are designed to help your community organisation understand the provisions, and to work out if and how your organisation may be liable for its volunteers under the Victorian Wrongs Act.
Fact sheet: Volunteer civil liability protection in Victoria
Checklist: Is our organisation liable for its volunteers under the Wrongs Act 1958 (Vic)?
Do we need insurance for our volunteers?
There are a number of risk management practices that organisations can take to:
- ensure its volunteers work in a safe environment;
- reduce the risk of harm or injury to volunteers; and
- ensure that any potential liability the organisation may have for the actions of its volunteers is minimised.
Having appropriate insurance coverage should be one feature of a community organisation's risk management plan.
PilchConnect have developed a guide to provide community organisations with a basic overview of risk management planning and the types of insurance that your community organisation may wish to consider. It looks at some of the legal issues that may arise when your organisation enters into a contract for insurance. To access the guide, see Getting started > Insurance and risk management. We have also included links to other volunteer risk management and insurance resources in the Related Links section below.
Does our organisation own the intellectual property in material produced by a volunteer?
The way the law treats volunteers, for the purpose of intellectual property law in Australia, is very different from the way it treats employees.
In very general terms, if an employee of a community organisation creates material or an invention during the course of their employment, the law considers that the community organisation employer will own the intellectual property in the material or invention.
However, if a volunteer creates material or an invention for your community organisation, the law considers that the volunteer retains the intellectual property in the material or invention. Your organisation will only be the owner of the intellectual property if the volunteer assigns (gives) their rights in the intellectual property to your organisation. If your community organisation wants to own the intellectual property rights in materials created by its volunteers, it should include this as part of the volunteer agreement when a volunteer commences with an organisation.
To find out more about community organisations and intellectual property, see our Guide to intellectual property law for community organisations at Getting started > Protecting your name, ideas and material.
Do tax laws apply to payments we make to our volunteers?
There are a number of situations where an organisation may make transactions with, or on behalf of, its volunteers. These include:
- making payments to its volunteers, such as reimbursement for out-of-pocket expenses (for meals, accommodation, postal costs), allowances, or honoraria;
- providing volunteers with non-cash benefits, such as meals or gifts; and / or
- purchasing goods (or services) for its volunteers.
Your organisation needs to consider whether and how tax laws (for example income tax, goods and services tax, fringe benefits tax or other taxes) apply to these types of transactions.
The Australian Taxation Office (ATO) has developed a specific guide for organisations to work out how the tax laws might apply to these kinds of payments. The publication is called Volunteers and Tax. The Guide includes case examples of the kind of transactions that might take place between a community organisation and its volunteers, and the way that the tax laws will apply. We have included a link to the Guide in the Related Resources section below.
Related legislation
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This is a link to the legislation which contains the volunteer civil liability provisions that make some community organisations legally responsible for the actions of their volunteers. The relevant provisions are contained in Part IV of the legislation. The Act also contains some statutory provisions about negligence actions.
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This is a link to the legislation that sets out Victoria's occupational health and safety laws, which set out the legal obligations that community organisations owe to their employees and, often, volunteers.
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This is a link to the legislation which requires that volunteers who are involved in 'child-related work' must have a valid 'working with children check' (WWC). The legislation is being phased in from 2005-2010 but already will apply to many community organisations.
Related links - Volunteer support organisations and brokers
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Volunteering Victoria is a not-for-profit, non-government state peak body representing all aspects of the volunteering sector in this state.
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Volunteering Australia is the national peak body working to advance volunteering in the Australian community. The site includes resources to assist not-for-profit organisations with volunteer management, including an information pack on volunteers and sexual harassment laws (2011).
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This guide developed by the Victorian Council of Social Service (VCOSS) provides community organisations with information about a range of 'brokers' that can match them with skilled volunteers.
Related links - Who is a volunteer?
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This page of the ATO's site provides an overview of the ATO's interpretation of the difference between an employee, an independent contractor and a volunteer, and the importance of this difference for tax purposes.
Related links - Assessing and screening new volunteers
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This section of the Victorian Department of Justice's website provides information about the requirement for your volunteers to get WWC checks if they are involved in 'child-related work'. The site includes application forms and details of the fields of work covered by the legislation.
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This section of the Victoria Police website provides information about VicPol procedures for conducting police records checks. It includes guidelines about the process and application forms.
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CrimCheck is a not-for-profit organisation started by the Monash Volunteer Resource Centre Inc. that provides a service for conducting police record checks.
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This page of the Our Community website provides information on recruiting, screening and managing volunteers.
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This resource from Volunteering Australia provides an overview of background check requirements and the associated costs across the various states and territories.
Related links - Volunteers and occupational health and safety
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This WorkSafe handbook includes general health and safety information for people who manage volunteers in community services organisations.
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This Worksafe publication provides information about health and safety rights and responsibilities for volunteers in community service organisations.
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This WorkSafe fact sheet outlines the health and safety responsibilities of volunteers who are members of a board or committee of management in the community services sector.
Related links - Volunteer insurance and risk management
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This publication outlines why it is important to manage risk and provides a simple 4-step guide to identifying and treating risks in organisations that have volunteers. It includes templates and other tools that your organisation can use as well as case studies.
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This section of the Our Community website provides information on insurance and risk management for community organisations who have volunteers.
Related links - Volunteers and tax
Related links - Volunteers and equal opportunity
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The Victorian Equal Opportunity and Human Rights Commission has released a fact sheet and FAQs for volunteer-involving community organisations on sexual harassment and discrimination under the Equal Opportunity Act 2010 (Vic)
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Volunteering Victoria has produced an information pack to support volunteers and organisations to understand and meet their responsibilities under the Equal Opportunity Act 2010