Volunteering Canterbury and Volunteering New Zealand hosted an online seminar on 27 May on volunteer rights and responsibilities, by Julia Yoo, Senior Legal Educator at Community Law Canterbury.
- See Volunteering New Zealand: Volunteering and the law
- See: Community Law Manual – easy to understand responses to queries. Great resource.
Julia’s session covered:
- Who is a volunteer? Different types of volunteers & VIOs
- What are the obligations of the organisation engaging volunteers?
- When and how volunteers are covered by relevant legislation
- What are the obligations undertaken by any volunteers fulfilling such work?
Who is a volunteer?
‘Volunteer’: Not defined in most legislation; no single act, no tribunal for volunteers, to be considered in court has to be through the High Court which is expensive. Have to consider case law e.g. Gloriavale recently. Unclear processes for hiring and firing volunteers. Generally means a person who works for public benefit, community good and who is not rewarded for it, and don’t expect to be. Does not include people doing on-the-job training.
- Campground case: Volunteer on-site manager – resident agreed to role. Given free accommodation and facilities, in return for doing some small tasks on behalf of the campsite. Court determined resident was found to be an employee, even though the person identified themselves as a volunteer. Labels less important than the role or work that they do.
- Dance case: Mr Brook expected to devote four hours per week to a cultural association. His motivation was to improve the community. Given an expense allowance of $1,500 per year. Organisation hadn’t attributed this expense allowance for specific costs received. Hours worked don’t impact on the assessment of a volunteer role or not. Expenses are best tackled.
- Gloriavale decision: released this month, 60-page decision. Main points: plaintiffs born in community; when they left sought declaration that they were employees. Gloriavale claimed they were volunteers. Courts determined they were employees, not volunteers. From the age of six they had to work within community; selected for specific jobs and roles, for benefit of businesses, directed by leaders. Rewards were exchanged – food, from age 16 paid close to minimum wage, but plaintiff had no access to funds. Worked eight hours/ day, like a working day. Ruled they were entitled to holiday pay, sick leave etc. Not ground-breaking decision for volunteers, but garnered media attention. Gloriavale said plaintiffs signed agreement saying they were volunteers; but even with agreement, that in itself isn’t full protection. The nature of the role determines whether people are employees or volunteers. Seek legal advice to ensure you’re doing the right thing.
Health and Safety at Work Act
Defines a volunteer as someone who is acting on a voluntary basis. Two categories – casual volunteers, and volunteer workers.
Volunteer workers are those that are regularly volunteering, integral to the organisation, and organisation has consented for the work to be done by the volunteer. Volunteer workers are owed the same treatment as other staff. H&S obligations.
Casual volunteers: typically are those that might sometimes do the following: fundraising, sports and recreation, helping schools and education, providing care in a volunteer’s home. Not required to undergo same training. May not be covered by the H&S requirements.
Responsibilities of the volunteer
Must take reasonable care: familiar with H&S policies, means volunteers should only do what they are trained to do, if they feel unsafe doing the work, reporting hazards and risks and giving feedback, and using PPE if required and as instructed. Major departures from reasonable care may be grounds for prosecution of the volunteers under the Act.
Obligations of community organisations
Depends on the type of organisations and volunteer:
- Organisations with staff – owe duties to volunteers under the H&S at Work Act to regular and ongoing volunteers, and have same rights as employees. Casual volunteers – same rights as visitors and customers; organisation has fewer obligations.
- Volunteer associations – if organisation does not employ staff, not covered by the H&S at Work Act at all. However, volunteer associations still owe all volunteers a general duty of care under the common law. Not well defined – covers recklessness etc.
Health & Safety Obligations
A volunteer organisations must ensure as is reasonably possible that its volunteer workers are provided with:
- work environment free from H&S risks, monitoring of conditions
- information and training to do work safely
- environment with adequate accessible facilities, and safety gear as appropriate
- safe tools, protection from toxic chemicals
- monitoring worker health and workplace conditions
- Workers must be involved in health and safety:
- Must be opportunities for workers to contribute and participate in the decision-making process and procedures, and that everyone is able to participate.
Responsibilities when selecting volunteers
Human Rights Act applies – cannot discriminate on basis of 13 grounds e.g. sex, religious belief, age.
Can decide if someone is suitable for a role – certain requirements. Can include client needs e.g. older age group. Important how you go about advertising role.
There are some exceptions:
- Age – eg if require a Drivers’ Licence
- Disability – if requires special services
If you wonder if an exception applies, check it out with Human Rights Commission
See: Fact Sheet Volunteers and the Human Rights Act.
When is an organisation responsible for volunteers’ actions?
Liable if volunteer is acting on organisation’s behalf e.g. volunteer driver while doing delivering for an organisation, within their volunteer hours.
Responsibilities when taking on specialist volunteers
An organisation should use all reasonable care when using specialist volunteers otherwise liable for loss or damage caused by volunteer e.g. social workers, health practitioners. Ensure any health-related service your organisation provides is performed by the appropriate person.
Reimbursing volunteers for expenses.
Expenses while volunteering should be reimbursed e.g. mileage when using own car. If an organisation starts giving monetary allowances, volunteer may have misunderstanding of being paid. Affects tax, immigration, driver licensing, Work & Income benefits.
- See IRD information on Volunteer payments and expenses.
- Charities Services Koha implications
- Charities Services – Charities obligations under the law
About The Author: Margaret McLachlan
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