Working with volunteers - the legal issues

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1. Do you or are you planning to have a volunteer position description?

You answered yes

Good! We certainly recommend using a Volunteer Position Description as part of your community organisation’s recruitment processes (which should be fair and non-discriminatory). For more information about Volunteer Position Descriptions and to access a sample Volunteer Position Description, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers. 

You answered no

We recommend using a Volunteer Position Description for all volunteer positions in your community organisation. It should focus on setting out the specific requirements of the position, being the skills or qualifications needed for the role (not the personal attributes of a potential volunteer). A Volunteer Position Description should be used when your organisation looks for volunteers (e.g. advertises) and in making decisions about potential volunteers, for example, when deciding if the volunteer has the skills to undertake the role and what background checks might be necessary. For more information, including a sample Volunteer Position Description, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

If you are planning on advertising a volunteer position, we recommend your organisation first develop a Volunteer Position Description that focuses on the specific skills and qualifications required for the role (not on personal attributes). Use the Volunteer Position Description to develop the advertisement for the volunteer position. Whilst it is unclear whether discrimination law applies to the recruitment of volunteers, best practice dictates that any protections available to other types of workers (for example, employees) should be provided to volunteers.

Discrimination is treating, or proposing to treat, someone unfavourably because of a personal attribute which is protected by law. Personal attributes of a person that are protected by laws include (but are not limited to) age, sexuality, gender identity, disability and race. The particular protected attributes that are covered vary under the different state and federal laws. For more information on recruitment and discrimination law, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers. 

You answered no

If in the future you decide to advertise your volunteer position, we recommend your organisation first develop a Volunteer Position Description that focuses on the specific skills and qualifications required for the role (not on personal attributes). We recommend that your organisation use the Volunteer Position Description to develop the advertisement for the volunteer position. Whilst it is unclear whether discrimination law applies to the recruitment of volunteers, best practice dictates that any protections available to other types of workers (for example, employees) should be provided to volunteers.

Discrimination is treating, or proposing to treat, someone unfavourably because of a personal attribute which is protected by law. Personal attributes of a person that are protected by laws include (but are not limited to) age, sexuality, gender identity, disability and race. The particular protected attributes that are covered vary under the different state and federal laws. For more information on recruitment and discrimination law, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

Good! We certainly recommend using a Volunteer Agreement. It is an important part of engaging volunteers, helping to make sure the volunteer understands their rights, role and responsibilities, along with those of the organisation. It is one way of making clear that the relationship between your organisation and the worker is voluntary (and not for example, an employee-employer relationship). It is also important in helping your community organisation manage its obligations in relation to health and safety.

A Volunteer Agreement will also help where a community organisation wants a volunteer to be under a legal obligation to do (or not do) something, for example, to protect the organisation’s confidential information and/or intellectual property. These legal obligations (provided they are not extensive and do not for example create legal obligations around tasks, hours or the work) will not affect the non-binding nature of the volunteer relationship. For more information, including a sample Volunteer Agreement, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered no

We strongly recommend using a Volunteer Agreement with all volunteers in your community organisation. It is an important part of engaging volunteers, helping to make sure the volunteer understands their rights, role and responsibilities, along with those of the organisation. It is one way of making clear that the relationship between your organisation and the worker is voluntary (and not for example, an employee-employer relationship). This will also be important in helping your community organisation manage its obligations in relation to health and safety.

A Volunteer Agreement will also help where a community organisation wants a volunteer to be under a legal obligation to do (or not do) something, for example, to protect the organisation’s confidential information and/or intellectual property. These legal obligations (provided they are not extensive and do not for example create legal obligations around tasks, hours or the work) will not affect the non-binding nature of the volunteer relationship. For more information, including a sample Volunteer Agreement, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

Good! We certainly recommend your community organisation inducts its volunteers before they begin their role as a volunteer. For more information about inducting your volunteers, and a sample Volunteer Induction Checklist, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered no

We recommend your community organisation inducts volunteers before they begin any volunteer work. We recommend using a Volunteer Induction Checklist. After completing the induction, volunteers should know where to access your organisation's policies and procedures, and have copies of those most relevant to them and their role, for example, health and safety, privacy and volunteer grievance policies. For more information about inducting your volunteers, and a sample Volunteer Induction Checklist, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

Good! Whilst it is generally not compulsory (although it may be under a funding or other form of agreement your organisation has), we recommend that community organisations maintain this type of insurance. Volunteers are a central part of many community organisations and it is useful to ensure that both the organisation and its volunteers are protected in the event of an accident. For more information about insurance and your volunteers, see Part 3 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered no

We recommend that your community organisation consider whether it needs volunteer personal accident insurance. Your community organisation might do this as part of an organisational risk assessment.

Volunteers often fall between the gaps as they are not covered by an organisation’s insurance policies when they suffer injuries in their role unless the organisation holds specific insurance for volunteers. It is important to remember that:

• workers’ compensation insurance does not cover volunteers (except in rare circumstances), and
• public liability insurance will usually cover injuries a volunteer causes to others but may not cover injuries caused to volunteers.

This type of insurance is generally not compulsory (although it may be under a funding or other form of agreement your organisation has), however, because volunteers are a central part of many community organisations it is useful to ensure that both the organisation and its volunteers are protected in the event of an accident. For more information about insurance and your volunteers, see Part 3 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

Good! We recommend your community organisation continues to undertake background checks (also called screening checks). This is because certain background screening checks are required by law (under legislation or contract) and others are optional. It is important that community organisations screen potential volunteers in a systematic way.

When considering the types of checks your organisation should undertake on volunteers, you should consider whether the volunteer’s role and responsibilities will include contact with vulnerable clients or children, access to sensitive information, handling monies, or operating certain machinery (including vehicles). Ideally this should already have been considered as part of the recruitment process – in the preparation of a Position Description and the subsequent advertising for volunteers.

For more information about background checks and volunteers, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers and our Screening Checks Guide at www.nfplaw.org.au/recruitment (these guides are applicable to volunteers as well as other types of workers).

You answered no

We would strongly recommend your community organisation considers undertaking background checks (also called screening checks). Certain background screening checks are required by law (under legislation or contract) and others are optional. It is important that your community organisation screens potential volunteers in a systematic way. Even when not required, your organisation ought to undertake some level of screening for volunteers. This is because all community organisations have a responsibility to ensure they maintain a safe environment for all workers, so your organisation should always try to be well informed about the people it engages.

When considering the types of checks your organisation should undertake on volunteers, you should consider whether the volunteer’s role and responsibilities will include contact with vulnerable clients or children, access to sensitive information, handling monies, or operating certain machinery (including vehicles). Ideally this should already have been considered as part of the recruitment process – in the preparation of a Position Description and the subsequent advertising for volunteers.

For more information about background checks and volunteers, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers and our Screening Checks Guide at www.nfplaw.org.au/recruitment (these guides are applicable to volunteers as well as other types of workers).

1. Do you or are you planning to have policies, procedures or strategies in place to ensure the safety of your volunteers?

You answered yes

Good! We recommend your community organisation continues to have policies, procedures or strategies in place to ensure the safety of your volunteers. This is because you have a common law (judge made law) legal duty under negligence laws to do so. Your organisation may also have a duty under legislation to do so.

Implementing a regularly reviewed risk management strategy and putting in place policies, procedures or strategies to prevent risks from eventuating is one way that your organisation can minimise the chance of them occurring or minimise the consequences if they occur.

If your organisation is found to have been negligent (that is, it failed to meet its obligations) the court will order a remedy be provided to the volunteer as a result of the community organisation’s actions or failure to act. This could be a costly mistake reputationally and financially.

For a comprehensive summary of negligence laws and volunteers for each state and territory, as well as a summary on risk management strategies, see Part 3 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered no

We strongly recommend your community organisation considers how it will ensure the safety of its volunteers. Your organisation has a duty of care (that is, a duty to prevent loss or injury) to its volunteers. This is called the law of negligence, which involves the common law (judge made law) and legislation in each state and territory.

Your organisation must consider both its duty of care to prevent injury, loss or harm to its volunteers, as well as the standard of care that it must meet – that is, what would the reasonable person (or community organisation) in the same position and with the same knowledge expect of your community organisation.

If your organisation is found negligent (that is, it failed to meet its obligations) the court will order a remedy be provided to the volunteer as a result of the community organisation’s actions or failure to act. This could be a costly mistake reputationally and financially.

Your community organisation should operate in a way that reduces the risk of damage and upholds the safety of its volunteers. Implementing a regularly reviewed risk management strategy and putting in place policies, procedures or strategies to prevent those risks from eventuating is one way that your organisation can minimise the chance of them occurring or minimise the consequences if they occur.

Each state and territory has legislation that deals with negligence.  For a comprehensive summary of each state and territory, as well as a summary on risk management strategies, see Part 3 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

Good! We recommend that your organisation continues to have policies, procedures or strategies in place to ensure the safety of the people that your volunteer interacts with. This is because you have a common law legal duty under negligence laws to do so. Your organisation may also have a duty under legislation to do so.

There are two sides to safety: the legal duty you have to take steps to ensure the safety of your volunteers, and your legal duty to the people that your volunteer interacts with - this includes clients, employees, other volunteers and members of the public.

In some circumstances, your organisation may be held liable, that is ‘legally responsible’ for the negligent actions (or the failure to act) of your volunteers. This is because each state and territory has legislation that sets out a special protection for volunteers from personal civil liability for anything done or not done in good faith when performing community work for your organisation. In some circumstances, the liability will instead transfer from the volunteer who caused the damage to your organisation.

The law differs slightly in each state and territory, and there are a set of tests that must be satisfied before a volunteer is protected and liability is transferred to your organisation. For more information about this, see Part 3 (in particular the annexure to Part 3) of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

Implementing a regularly reviewed risk management strategy and putting in place policies, procedures or strategies to prevent those risks from eventuating is one way that your organisation can minimise the chance of them occurring or minimise the consequences if they occur. For a more information about risk management strategies, see Part 3 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered no

We strongly recommend that your community organisation considers how it will ensure the safety of the people that your volunteers interact with. This is because you have a legal duty under common law negligence laws to do so. Your organisation may also have a duty under legislation to do so.

There are two sides to safety: the legal duty you have to take steps to ensure the safety of your volunteers, and your legal duty to the people that your volunteer interacts with - this includes clients, employees, other volunteers and members of the public.

Your organisation must consider both its duty of care to prevent injury, loss or harm to the people that your volunteers interact with, as well as the standard of care that it must meet – that is, what would the reasonable person (or community organisation) in the same position, and with the same knowledge, expect of your organisation.

In some circumstances, your organisation may be held liable, that is ‘legally responsible’ for the negligent actions (or the failure to act) of your volunteers. This is because each state and territory has legislation that sets out a special protection for volunteers from personal civil liability for anything done or not done in good faith when performing community work for your organisation. In some circumstances, the liability will instead transfer to your organisation.

The law differs slightly in each state and territory, and there are a set of tests that must be satisfied before a volunteer is protected. For more information about this, see Part 3 (in particular the annexure to Part 3) of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

Your community organisation should operate in a way that reduces the risk of damage and upholds the safety of the people that your volunteers interact with. Implementing a regularly reviewed risk management strategy and putting in place policies, procedures or strategies to prevent those risks from eventuating is one way that your organisation can minimise the chance of them occurring or minimise the consequences if they occur. For a more information about risk management strategies see Part 3 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

Good! We recommend your organisation continue to comply with the relevant work health and safety laws (also referred to as occupational health and safety) in your state or territory. Work health and safety obligations are separate to, and in addition to, the obligations your community organisation has under negligence laws.

Work health and safety laws will apply to many community organisations, but not all. If work health and safety obligations apply to your organisation, the laws will impose a variety of obligations on your organisation. Compliance with these laws is very important. If your organisation does not comply with these laws, it risks substantial fines. Directors and officers of organisations risk further fines and imprisonment if they do not exercise due diligence in relation to work health and safety of volunteers.

The laws are different in each state and territory. To find out more about how work health and safety laws apply to your community organisation, including what your obligations are, see our comprehensive guide in Part 3 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered no

We recommend you find out if your organisation must comply with the relevant work health and safety laws (also referred to as occupational health and safety) in your state or territory. Work health and safety obligations are separate to, and in addition to the obligations your organisation has under negligence laws.

Work health and safety laws will apply to many community organisations, but not all. If work health and safety obligations apply to your organisation, the laws will impose a variety of obligations on your organisation. Compliance with these laws is very important. If your organisation does not comply with these laws, it risks substantial fines. Directors and officers risk further fines and imprisonment if they do not exercise due diligence in relation to work health and safety of volunteers.

The laws are different from state to state, but in essence the obligation is to, so far as reasonably practicable, ensure the health and safety of workers in the workplace, which is taken to include volunteers. In some circumstances this is extended to the people that your volunteers are interacting with, as well as a duty on the volunteer themselves to ensure their own safety.

As mentioned above, the laws are different in each state and territory. To work out whether work health and safety laws apply to your organisation, including what your obligations are, see our comprehensive guide in Part 3 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

In addition to the duty of care your community organisation owes to volunteers and the people that your volunteer interacts with, you should consider the special responsibilities your organisation may have in relation to children or young people it comes into contact with when providing services, or when children or young people are volunteers for your organisation.

As discussed above, when considering safety, there are two primary sources of law that your community organisation will need to be aware of – negligence laws and work health and safety (or occupational health and safety) laws. If you are dealing with children, you should consider any special measures you may need to take to meet these obligations under negligence laws and/or the work health and safety laws.

It is crucial your organisation undertakes a careful risk assessment of the activities involving and interactions it has with children, in order to determine whether it needs to implement any further safeguards and processes to help ensure their safety. One important safeguard to put in place is comprehensive induction and training of workers and volunteers.

All states and territories also have certain legal requirements for conducting checks in relation to people who are working with children. For more information, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers and our Screening Check Guides at www.nfplaw.org.au/recruitment, (which are applicable to volunteers as well as other types of workers)

The Royal Commission into Institutional Child Abuse made a suite of recommendations that will impact community organisations working with or involving children and young people. Your organisation may have extra responsibilities or duties arising out of the implementation and adoption of these recommendations by governments at all levels. See our summary at www.nfplaw.org.au/state-and-territory-progress-implementing-recommendations-made-royal-commission-institutional.

For more information about safety, your organisation and children and young people, see Part 3 of our National Volunteer Guide, and our freely available webinar Youth Volunteers at www.nfplaw.org.au/volunteers.

You answered no

If in future your organisation engages children or young people as volunteers, or if your organisation comes into contact with children or young people when providing services, your organisation must carefully consider the special responsibilities it may have.

As discussed above, when considering safety, there are two primary sources of law that your organisation will need to be aware of – negligence laws and work health and safety (or occupational health and safety) laws. If you are dealing with children, you should consider any special measures your organisation may need to take to meet these obligations under negligence laws and/or the work health and safety laws. You may also be required to undertake Working with Children Checks.

Your organisation may also have extra responsibilities or duties arising out of the implementation and adoption of the recommendations contained in the 2017 Royal Commission into Institutional Child Abuse final report. A summary of this can be found at www.nfplaw.org.au/state-and-territory-progress-implementing-recommendations-made-royal-commission-institutional.

For more information about safety, your organisation and children and young people, see Part 3 of our National Volunteer Guide, and our freely available webinar Youth Volunteers at www.nfplaw.org.au/volunteers.

1. Do you have a plan in place for managing the performance of your volunteers?

You answered yes

Good! We recommend your organisation continue to undertake performance management procedures and processes with your volunteers. A well-structured performance management system provides a number of benefits both to the community organisation and the volunteer. For more information about managing the performance of volunteers, including what a performance management plan should include and tips on performance management processes, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered no

We recommend your organisation considers a performance management plan along with procedures and processes. A well-structured performance management system provides a number of benefits both to the organisation and the volunteer.

Although managing the performance of employees involves risks that do not apply to volunteers (e.g. unfair dismissal), best practice dictates the management of volunteers should not differ significantly from the management of employees. This ensures all workers are treated consistently and provides some certainty on the process to expect when issues arise.

A useful way to think about performance management is to think in terms of both conduct and performance. ‘Performance’ generally refers to the quality of work. For example, only partly recording a client’s contact details in the organisation’s systems or failing to collect necessary information from a client. This differs to ‘conduct’ which generally refers to the deliberate breaking of workplace rules, such as misuse of the organisation’s equipment (e.g. using a vehicle without permission or in breach of the organisation’s policies), disclosure of confidential information, or inappropriate workplace behaviour (i.e. bullying or sexual harassment). For more information about managing the performance of volunteers, including what a performance management plan should include and tips on performance management processes, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

Good! Volunteers are a central part of many community organisations. We recommend your organisation continues to recognise the value of your volunteers’ contributions. This is recommended by Volunteering Australia in its National Standards for Volunteer Involvement. Standard 7 says “Volunteer contribution, value and impact is understood, appreciated and acknowledged”. This includes, for example, providing a volunteer with feedback on the impact and value of their contribution to the organisation and its work. Periodic appraisals of a volunteer’s performance is one way to provide a volunteer with the opportunity for feedback on their contribution. You can access the National Standards for Volunteer Involvement at www.volunteeringaustralia.org.

You answered no

Volunteers are a central part of many community organisations. Your organisation may want to consider ways in which you can recognise the value of your volunteers’ contributions. This is recommended by Volunteering Australia’s National Standards for Volunteer Involvement. Standard 7 says “Volunteer contribution, value and impact is understood, appreciated and acknowledged”. This includes, for example, providing a volunteer with feedback on the impact and value of their contribution to the organisation and its work. Periodic appraisals of a volunteer’s performance is one way to provide a volunteer with the opportunity for feedback on their contribution. You can access the National Standards for Volunteer Involvement at www.volunteeringaustralia.org.

You answered yes

Good! We recommend your community organisation continues to have, use and update its plan or system for handling volunteer grievances. Remember, volunteers should be told about your organisation’s procedure for handling grievances. This will assist in preventing issues becoming more problematic.

For more information about handling volunteer grievances, including tips on what should be included in a Volunteer Grievance Policy, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered no

We recommend your community organisation considers putting in place a system for handling volunteer grievances. Grievances occur in most community organisations and volunteers may want to express grievances about the volunteer program, or your organisation.

One way that your organisation can ensure that the volunteer’s grievances are heard and dealt with in an appropriate manner is by implementing a Volunteer Grievance Policy. This is a written document that outlines the process of making a complaint, how it is resolved and who is responsible for resolving it.

Volunteers should be told about your organisation’s procedure for handling grievances. This will assist in preventing issues becoming more problematic.

For more information about handling volunteer grievances, including tips on what should be included in a Volunteer Grievance Policy, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered yes

Your organisation may come across a volunteer that it wishes to engage as an employee or independent contractor. Whilst there is no issue with doing this, it is important to recognise the different legal entitlements and obligations for volunteers, employees and independent contractors. So that the relationship does not get blurred (which can be confusing for the individual and a costly legal mistake for your organisation) it is important to clearly distinguish the transition from a volunteer to employee or independent contractor. One way of doing this is by confirming the volunteer arrangement has come to an end in writing, entering into a separate employment or independent contractor agreement and keeping a record of the signed and dated documentation provided to the volunteer.

For more information about ending the volunteer relationship, see Part 5 of our National Volunteer Guide or at www.nfplaw.org.au/volunteers or Part 2 for information about the differences between volunteers, employees and independent contractors.

You answered no

Remember it is important to manage the process of ending a volunteer relationship well. This will help your organisation avoid any potential legal consequences or reputational damage.

You answered yes

There may be a number of reasons why your community organisation may choose to end a relationship with one of its volunteers. These include:

• there is no longer a need for the volunteer’s services
• the volunteer’s performance
• the volunteer’s conduct is not satisfactory (or has not improved following a review process) or there has been serious misconduct, or
• the volunteer’s presence may be detrimental to the health and safety of others in the organisation.

Ending a genuine volunteer relationship is different to ending an employment relationship by termination (which involves certain legal rights, obligations and processes). It is important that both your organisation and the volunteer understand these differences. Your organisation should have processes in place for the ending of a volunteer relationship, which include the keeping of volunteer records once the relationship has come to an end. For more information about ending the volunteer relationship, see Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers or Part 2 for information about the differences between volunteers, employees and independent contractors.

You answered no

Remember it is important to manage the process of ending a volunteer relationship well. This will help your organisation avoid any potential legal consequences or reputational damage.

You answered yes

Good! We recommend your organisation keeps records about its volunteers for at least 7 years. More information can be found in Part 5 of our National Volunteer Guide at www.nfplaw.org.au/volunteers.

You answered no

Whilst community organisations have limited legal obligations to keep specific records relating to volunteers we recommend that your organisation keeps records about its volunteers for at least 7 years. The reasons for this include that legal action can generally brought up to 6 years after an event to which the legal action relates (for example, a former volunteer alleges your organisation’s negligence was the cause of the injury to the person while they were volunteering for your organisation and it may take up to 6 years before they start this legal action). Some claims have even longer limitation periods. Further, if your community organisation is bound by work health and safety laws in most jurisdictions these laws generally require certain records be kept for 5 years.

Keeping volunteer records for 7 years is also consistent with any obligations your organisation has under employment law in relation to employee records. This obligation does not specifically extend to volunteer records, however, best practice dictates that the management of volunteers should not differ significantly from the management of employees, which includes record keeping.

If your community organisation is a registered charity with the Australian Charities and Not-for-profits Commission (ACNC), you will need to report on your volunteers.

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While we aim to develop apps that are helpful and informative, information provided in the app and in this report is information only, and does not constitute legal advice, and should not be used as or considered to be a substitute for tailored legal advice. Using this app does not create a lawyer-client relationship.

© Justice Connect 2019. This legal content in this app was last updated in August 2019.

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