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Volunteering law can be complex and confusing. This page is designed to help organisations understand the laws that apply to it and its volunteers. The Managing Volunteers video provides a useful overview of some of the legal issues that your organisations might need to consider.
Your organisation owes its volunteers certain legal obligations and these are sometimes hard to work out. This pages covers the following key issues:
- identifying your volunteers
- screening potential volunteers
- inducting new volunteers
- managing volunteer safety and potential liabilities for volunteer actions, and
- ending the volunteer relationship.
Identifying your volunteers
The law defines the volunteer relationship in a certain way. It is important that your organisation understands what kind of ‘worker’ everyone involved with you is under law, as this affects their rights and your obligations. The question of whether a person is a volunteer (as opposed to an employee or independent contractor) depends on the features of the relationship between a person and an organisation, rather than the name given to that relationship - just because you call a worker a 'volunteer' does not necessarily mean the law agrees with your description!
The fact sheet below has more information about identifying your volunteers and why this is so important. You can also go to our Employees page to read our more in-depth guide and view a recorded webinar on distinguishing between employees, contractors and volunteers.
Engaging volunteers
Recruiting and engaging volunteers raises a number of important legal issues for organisations.
Screening
Screening volunteers appropriately for their position is critical, such as by running Working with Children Checks (WWC Checks) where applicable, police checks, as well as other reference and qualification checks. Each state and territory has a different regime in place in relation to WWC Checks and many funding agreements may also require particular checks to be obtained for all volunteers.
While screening is important, it is also important to not discriminate in the recruitment of volunteers based on screening. There are legal protections against discrimination on the basis of particular protected attributes such as age, sex, marital status and also an irrelevant criminal record. There are more detailed resources on this topic in the Victorian section below.
Volunteer agreement and role description
A volunteer agreement is an important part of engaging volunteers, helping to make sure the volunteer understands their rights, role and responsibilities. It is also important from a risk management perspective – it can help your organisation show when a volunteer is acting within their role or outside their role.
A sample volunteer agreement and consent form are provided below. These documents do not constitute legal advice and may not be appropriate for every organisation. They should be tailored to your organisation’s particular needs and circumstances as well as those of its volunteers.
Inducting and training volunteers
In line with best risk management practices, a volunteer should be inducted into an organisation, appropriately trained, and provided with copies of all relevant policies and key documents.
We suggest completing an induction checklist for each new volunteer. We have included an example below. This is not exhaustive and should be tailored to your particular organisation.
Youth volunteers
If your organisation engages youth volunteers there are number of issues you will need to consider, including working conditions, reporting requirements, appropriate screening processes, supervision, safety and insurance.
The Australian Institute of Family Studies provides an overview of child protection legislation in each state and territory in Australia, as well as other useful resources. We have also developed fact sheets relevant to Victorian and NSW community organisations (see the Victorian and NSW sections below).
Volunteers and visas
Many organisations are uncertain about engaging volunteers who hold temporary visas (especially those with particular work conditions). It is important not to automatically deny volunteering opportunities to these individuals but it's equally important to understand where visas restrict a person’s ability to participate in volunteering. We note that The Department of Immigration and Border Protection has openly encouraged those living in the community, either under community detention arrangements or on a bridging visa, to engage in volunteering as a way to become involved in their local community, build relationships and obtain new skills.
For more information about various visa work restrictions and volunteering, and steps your organisation can take when engaging people holding visas, see our fact sheet below.
Members and Volunteers
Your organisation should understand that its members may also be considered to be volunteers in certain circumstances - in particular when they are helping out your organisation beyond the usual role of a member (eg participating in working bees or helping to run events) The fact sheet below has more information about when members might be volunteers, and why identifying when this takes place is so important for both the volunteer and the organisation.
Managing volunteers
There are many ongoing issues that organisations need to keep in mind in relation to their volunteers. For example, in most cases, volunteers will be entitled to the same protections as employees and workers under work health and safety laws and equal opportunity laws (ie. sexual harassment, discrimination, victimisation and bullying).
There are also laws which provide that, in certain situations, your organisation will be held legally responsible for the actions of its volunteers. These laws vary from state to state. This makes it crucial for your organisation to have good volunteer management practices, policies and insurance in place.
As a part of your risk management strategy, we suggest that your organisation clearly defines the role and tasks of your volunteers in a written document and specifies any prohibited actions. A sample volunteer position description and consent form are provided below. These documents do not constitute legal advice and may not be appropriate for every organisation or every Australian jurisdiction. They should be tailored to your organisation’s particular needs and circumstances as well as those of its volunteers.
Ending the volunteer relationship
The legal rights, obligations and processes that arise when ending a volunteer relationship differ from those arising in the termination of employment. For more information about these differences and how to minimise risks associated with ending a volunteer relationship, see our fact sheet below.
Further Not-for-profit Law resources
We have developed a comprehensive suite of state-specific resources for Victoria with support from the Victoria Law Foundation, as well as a number of resources for New South Wales.
Some resources are relevant to all states and territories, and these resources will display for all jurisidiction selections. To view the more comprehensive Victorian resources, make sure you have Victoria selected as a jurisdiction (in the menu bar above).
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.
Peak volunteering organisations
Peak organisations for volunteering have lots of information on volunteer issues more generally:
- Volunteering Australia
- Centre for Volunteering (NSW)
- Volunteering Victoria
- Volunteering Queensland
- Volunteering WA
- Volunteering SA & NT
- Volunteering Tasmania
- Volunteering ACT
Volunteering matching organisations
It may also be helpful for your organisation to look for someone by contacting the various volunteer brokers and support organisations. You can also advertise online or in your local paper. Organisations who can help include:
- Volunteering Australia: www.govolunteer.com.au and www.volunteeringaustralia.org
- Centre for Volunteering (NSW focused)
- Leadership Victoria, which now includes the Greatconnections program
- Goodcompany, which fosters corporate and skilled volunteering
- Creative Partnerships Australia, for arts organisations
- Pro Bono Australia's volunteer advertising and matching service
- Seek Volunteering
- OurCommunity has resources, particularly on corporate volunteering
- Volunteering Victoria has resources and is also piloting a new service called HelpOut, linking spontaneous volunteers with organisations working on disaster relief, recovery and preparation in affected communities
- Regional groups, such as Volunteering Geelong, Leadership Ballarat and Western Region, Hunter Volunteer Centre and Gladstone Region Volunteering
- Local Councils also often have volunteer matching services
This part of the Volunteers page has resources that are specific to organisations and volunteers in Victoria. They should be read in addition to the general resources set out above.
What laws apply to our organisation and its volunteers in Victoria?
For an overview of legislation that most commonly arises when dealing with legal issues involving volunteers and employees, see the following fact sheet.
Volunteer recruitment
Your organisation should recruit its volunteers in a fair and non-discriminatory way and implement a well-planned and relevant induction and training plan, so that your volunteers can perform the role expected of them competently and safely. For more information about discrimination in the recruitment process and the induction and training of volunteers, including spontaneous volunteers, see our fact sheet below:
Before engaging a volunteer, as a part of the recruitment process, it is important to undertake the background checks required by law, as well as to consider other appropriate background screening checks to manage risk. For more information about conducting Working with Children Checks, Police Checks and other qualification, reference and ID checks in Victoria, see our fact sheet below.
Emerging types of unpaid work
There are a number of ways an individual can engage in unpaid work that do not fit within a traditional volunteer role. Some of these are new or emerging, and can raise particular risks or cause confusion. The following fact sheet has more information about:
- placements and internships
- work for the dole
- court ordered 'volunteering', and
- mutual obligation 'volunteering'.
Youth volunteers
If your organisation engages and manages youth volunteers, there are a number of specific issues you will need to consider. Most legal information covered in our resources relating to volunteers will also be relevant to youth volunteers. However, there are some extra legal considerations your organisation should turn its mind to when engaging and working with volunteers.
Unlawful workplace behaviour
Your organisation must take reasonable steps to protect volunteers from unlawful workplace behaviour directed towards them. Your organisation can also be held responsible for the actions of your volunteers if they engage in unlawful workplace behaviour towards another person, if no reasonable action is taken to prevent this behaviour.
The following fact sheet outlines the avenues available to volunteers subject to the following potentially unlawful workplace behaviours and steps your organisation can take to make sure your volunteers are protected from:
- sexual harassment
- discrimination
- bullying, and
- victimisation.
Safety and risk management
Your organisation owes its volunteers certain legal obligations to provide and maintain a safe working environment. There are also laws which provide that, in certain situations, your organisation will be held legally responsible (liable) for the actions of its volunteers. Therefore, it is crucial for your organisation to have good volunteer management practices, policies and insurance in place. The following fact sheet outlines:
- your organisation’s responsibility for the safety of your volunteers
- your organisation’s responsibility for the actions of your volunteers, and
- ways to minimise the risk to your volunteers and others.
The following checklist can be used as a tool to consider whether your organisation may be legally responsible for the actions of its volunteers because of the application of Victorian legislation.
Related links
-
Victorian Department of Human Services
For more information relating to the new mandatory Child Safe Standards and mandatory reporting requirements. -
Child protection toolkit
Moores, together with Our Community, have created a Child Protection Toolkit for not-for-profit organisations, to help them comply with the new standards in Victoria and other legislative requirements. The Toolkit discusses child safe recruitment processes, creating a child safe culture and various reporting obligations. It also includes a sample Child Protection Policy and Child Safety Code of Conduct (that can be tailored to your organisation). -
Victorian Department of Justice and Regulation - Working with Children
The Working with Children section of the Victorian Department of Justice's website provides information about the requirement for your employees 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. - Victoria Police
For information in response to Frequently Asked Questions about National Police Certificates. - Volunteering Victoria
Volunteering Victoria has a range of resources in relation to the recruitment of volunteers in its Volunteer Management Toolkit. - Australasian Legal Information Institute (AUSTLII)
For access to all Victorian and Federal legislation.
This part of the Volunteers page has resources that are specific to organisations and volunteers in New South Wales. They should be read in addition to the general resources set out above.
What laws apply to our organisation and its volunteers in NSW?
For an overview of legislation that most commonly arises when dealing with legal issues involving volunteers and employees, see the following fact sheet.
Identifying your volunteers
The fact sheet below has information about identifying your volunteers and why this is so imporant.
Volunteer recruitment
Your organisation should recruit its volunteers in a fair and non-discriminatory way and implement a well-planned and relevant induction and training plan, so that your volunteers can perform the role expected of them competently and safely. For more information about discrimination in the recruitment process and the induction and training of volunteers, including spontaneous volunteers, see our fact sheet below:
Screening
Before engaging a volunteer, as a part of the recruitment process, it is important to undertake the background checks required by law, as well as to consider other appropriate background screening checks to manage risk. For more information about conducting Working with Children Checks, Police Checks and other qualification, reference and ID checks in New South Wales, see our fact sheet below.
Engaging volunteers
Volunteer agreement, position description and consent and release form
A volunteer agreement is a crucial part of engaging volunteers. It is also important that organisations clearly define the role and tasks volunteers and prohibited actions in a written document. A sample volunteer agreement, position description and consent and release form are provided below. These documents do not constitute legal advice and may not be appropriate for every organisation.
Volunteers and visas
For information about various visa work restrictions and volunteering, and steps your organisation can take when engaging people holding visas, see our fact sheet below.
Youth volunteers
If your organisation engages and manages youth volunteers, there are a number of specific issues you will need to consider. Most legal information covered in our resources relating to volunteers will also be relevant to youth volunteers. However, there are some extra legal considerations your organisation should turn its mind to when engaging and working with volunteers.
Unlawful workplace behaviour
Your organisation must take reasonable steps to protect volunteers from unlawful workplace behaviour directed towards them. Your organisation can also be held responsible for the actions of your volunteers if they engage in unlawful workplace behaviour towards another person, if no reasonable action is taken to prevent this behaviour.
The following fact sheet outlines the avenues available to volunteers subject to the following potentially unlawful workplace behaviours and steps your organisation can take to make sure your volunteers are protected from:
- sexual harassment
- discrimination
- bullying, and
- victimisation.
Safety and risk management
Your organisation owes its volunteers certain legal obligations to provide and maintain a safe working environment. Not-for-profit law has developed a guide to help community organisations to work out their obligations under New South Wales' work health and safety laws. Go to our WHS page.
There are laws which provide that, in certain situations, your organisation will be held legally responsible (liable) for the actions of its volunteers. These laws provide that any 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. Therefore, it is crucial for your organisation to have good volunteer management practices, policies and insurance in place.
These laws are set out in the Civil Liability Act 2001 (NSW) 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 following fact sheet on safety, risk management and volunteers will help your community organisation understand the provisions, and to work out if and how your organisation may be liable for its volunteers under the Civil Liability Act 2001 (NSW).
The following checklist can be used as a tool to consider whether your organisation may be legally responsible for the actions of its volunteers because of the application of NSW legislation.
Ending the volunteer relationship
The legal rights, obligations and processes that arise when ending a volunteer relationship differ from those arising in the termination of employment. For more information about these differences and how to minimise risks associated with ending a volunteer relationship, see our fact sheet below.
Emerging types of unpaid work
There are a number of ways an individual can engage in unpaid work that do not fit within a traditional volunteer role. Some of these are new or emerging, and can raise particular risks or cause confusion. The following fact sheet has more information about:
- placements and internships
- work for the dole
- court ordered 'volunteering', and
- mutual obligation 'volunteering'.