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Introduction
When disasters occur, community organisations often experience a surge in demand without a corresponding increase in funding. Sometimes, employees may offer to work as a volunteer.
Can an organisation ask employees to work additional hours without pay?
Under the Fair Work Act 2009 (Cth) (Fair Work Act), an employee may refuse to work additional hours if they are ‘unreasonable’. Factors to consider when assessing whether additional hours are ‘unreasonable’ include risk to employee health and safety, the employee’s personal circumstances (such as family responsibilities), the needs of the workplace, and whether the employee is entitled to receive overtime payments or other compensation for working additional hours.
Although there is no specific provision in the Fair Work Act that allows a not-for-profit organisation to request an employee to work unpaid hours, subject to our cautions below, it may be possible for a paid employee to also work as a volunteer.
Your organisation must manage this process carefully and seek legal advice to ensure compliance with relevant legal requirements.
Caution – staff working additional hours as a volunteer
There is a risk that it may be difficult to distinguish between a person's paid work and unpaid voluntary work. This puts your organisation at risk of legal claims such as claims for underpayment of wages and other employee entitlements, amounting to wage theft, and other significant penalties for breaching the Fair Work Act.
Importantly, individuals who are involved in breaches of the Fair Work Act, such as underpayment of wages, can be held personally liable for penalties.
To manage the legal risks, for example, as a bare minimum, you would likely need a separate written agreement with each individual employee dealing the voluntary arrangement, specifying relevant matters such as what the voluntary work involves and when it is to be done. You should also consider whether additional fatigue management protections are required.
You will also need to implement a system (such as a time or attendance recording system) that allows your organisation to confirm when an employee is doing voluntary work and clearly distinguishes the voluntary work from their paid work. The work performed as an employee should be kept separate and look completely different from the work performed as a volunteer.
Tips for organisations
- employees should never feel coerced into volunteering
- clearly communicate the voluntary nature of the work to staff
- outline the scope of the volunteer work, confirm its voluntary nature, and detail any honorariums provided in written agreements
- confirm that insurance coverage covers volunteers
- comply with relevant federal and state legislation
Volunteers, including paid staff who volunteer, are often protected from personal liability for acts done in good faith during their volunteer work. This legal protection is vital as it encourages people to volunteer without fear of legal consequences.
To alleviate challenges your organisation may be facing during a disaster, you could recruit new volunteers. However, your organisation must ensure the recruitment process complies with any applicable state and federal government directions and public health orders. See our webpage spontaneous volunteers for more information.
Disclaimer: These resources provide general information about legal issues that may arise for not-for-profit organisations in managing disasters. This information is a guide only and is not legal advice. If you or your organisation has a specific legal issue, you should seek legal advice before deciding what to do. See full disclaimer and copyright notice.
The content on this webpage was last updated in December 2024.
