The information on this website is intended as a guide only, and is not legal advice.

The Legal Status of a Volunteer

It is very important that a distinction is made in your organisation between an employee and a volunteer. The law treats volunteers differently to employees. A volunteer also needs to understand the basis on which they are engaged. A solid policy on volunteers will not only avoid any lawyers and legal action but will attract volunteers to your organisation because they know they will be properly covered.

To be truly a volunteer (and not an employee or independent contractor) there must be:

- No intention to create legal relations of any kind

- Attendance at the organisation should be truly voluntary

- No expectation of payment or remuneration related to work performed (except reasonable reimbursement of expenses)

- Substantive motive for the work should be altruism (not commercial)

Using a Volunteer Agreement and having it signed by both the organisation and the volunteer can help clarify the status of the person within your organisation.

Negligence and Duty of Care

The law requires you to take reasonable precautions against a risk of harm to a volunteer performing their role if:

- The risk is foreseeable

- The risk is not insignificant

- A reasonable person/group in your position would have taken the required precautions

It’s important to note that recent changes to the legislation in the Wrongs Act means that if a volunteer injures others while performing their role, the organisation could be liable for the volunteers actions if it has not taken reasonable care. If the volunteer injures themselves in the course of their duties, the organisation can also be liable for the same reason. You cannot ask your volunteer to sign a waiver form as this is not allowed. Occupational Health and Safety Laws, however, do apply to volunteers.

Including a Volunteer Role Description with the Volunteer Agreement can help clarify or outline what the authorised actions and the scope of the role of the volunteer actually are.

Equal Opportunity Laws

Currently the only Equal Opportunity Law that applies to volunteers is the Sexual Harassment Law (in VIC from August 2011, already in NSW). Racial, Age and Sexual Discrimination Laws do not currently apply but there are plans to change the legislation in the future. It is important to keep up-to-date on legislation to do with employment and volunteering. It is, however, a good idea and best practice to make sure that any volunteer advertisements stick to the EO laws unless the attribute is an inherent requirement of the volunteer role, e.g. recruiting women to work in women’s shelters.

Legal Checks

If a volunteer will be working with children or has access to children in any way, it is mandatory for them to have a current Working with Children check. Go to the following links for more information:

VIC- www.justice.vic.gov.au/workingwithchildren

NSW- https://check.kids.nsw.gov.au/

WA- http://www.checkwwc.wa.gov.au/checkwwc

If the volunteer is working with money or confidential information you can request a police check, but it is discretionary. Conduct a risk assessment to determine whether checks other than Working with Children need to be requested.

Intellectual Property Rights

Another way that a volunteer differs from an employee is a volunteer maintains all rights over intellectual property they worked on or created in the course of their volunteer duties. This includes website design and content, training materials, databases, logos, etc. If this is ever likely to be an issue one option is to contract with the volunteer to at least grant your organisation an irrevocable license to use the materials.

Insurance

Whilst employees are covered by workers compensation should any injuries occur, volunteers are not. Public Liability insurance should usually cover injuries volunteers cause to others (though you should check this) but may not cover your organisation for injuries caused to volunteers. The only way to make sure volunteers and yourselves are covered is with Volunteer Insurance. For more information you can go to http://www.pilch.org.au/insurance/ or the OurCommunity website at http://www.ourcommunity.com.au/insurance/insurance_article.jsp?articleId=1245

You can also download the new Volunteers Vital Pack - Summary of Insurance Cover for Charities" here.

Work Health and Safety

For information about Work Health and Safety relating to volunteers please go to the Safe Work Australia website.

For more help

For more information on Volunteers and the Law (based on Victorian state law) and links to many useful websites go to http://www.pilch.org.au/volunteers

For PilchConnect is a legal service set up by PILCH (a specialist community legal centre) to provide legal help tonot-for-profit community organisations. They have a range of legal services, including a legal information webportal, a low-cost legal seminar series for not-for-profits and are able to refer eligible organisations for pro bono (free) legal assistance.Their website is www.pilch.org.au/community_org/ for Victoria and http://www.pilchnsw.org.au/ for NSW.

NSW community groups can also find lots of useful information at http://www.volunteering.com.au