Emerging issues in managing volunteers

Transcription

1 Emerging issues in managing volunteers 23 March 2016 Not-for-profit Masterclass Juanita Pope and Kaela Snibson Lawyers Justice Connect Not-for-profit Law PO Box Melbourne VIC Tel Fax justiceconnect.org.au/nfplaw

2 Introduction

3 Introduction 3

4 Introduction 4

5 Introduction What we will cover today Introduction 1. Who is a volunteer? 2. Screening volunteers 3. Volunteers and safety 4. Child safety standards 5

6 Introduction About today s session Legal information not legal advice Focus today is on the law as it applies in Victoria the law in other states may differ Questions any time but if complex or very specific we might defer or refer Workbook 6

7 1. Who is a volunteers

8 Getting volunteers involved the infinite variety of human affairs means that work relationships present as a spectrum, some of which are clearly relationships of employment and others of which are clearly relationships of independent contract [and some of which are clearly volunteer relationships] but some of which are less clear cut French Accent v Do Rozario [2011] FWAFB 830 (with colour emphasis and words in italics added by NFP Law!) 8

9 Getting volunteers involved Spectrum Potential or spontaneous volunteers Traditional volunteer Mutual obligation volunteering / work (related to government payment or court order) Unpaid work Employment relationship Contract of service Contractor relationship Contract for services Member of public Spontaneous Volunteer Volunteer Voluntary work under Court Order Work activity for Govt. payment Work for the dole Work experience Voluntary work Green Corps Vocational placement or Internship / work experience or Unpaid work trial Casual employee Fixed-term contract employee Permanent employee Independent contractor or consultant 9

10 Getting volunteers involved Mr Bell says Mr de Castella owes him $100,000 in wages for 20 months work but Mr de Castella says Mr Bell was a volunteer and declined to accept money so as not to affect a disability pension Alice Springs News Online 18 June

11 Getting volunteers involved Legal entitlements of people organisation engages Issue Contractor Employee [ongoing or fixed term] Casual employee Volunteer Payment for work National Employment Standards /award etc. Superannuation possibly Workers compensation possibly Paid sick and annual leave Paid long service leave Termination rights Contractual Redundancy / Unfair dismissal Unfair dismissal

12 The spectrum Further issues In addition to entitlements, there are other legal issues which will turn on status of person engaged: Insurance Work health and safety laws Vicarious liability for actions Workplace behaviour laws Other benefits (government payments / visas) 12

13 The spectrum Step 1 Is there a contract? Step 2 Yes If yes, what kind of contract is it? Step 3 Contract of service? Contract for services? Volunteer Employee Independent consultant No Other? Member of public 13

14 The spectrum Step 1 Is there a contract? Step 2 Yes If yes, what kind of contract is it? Step 3 Contract of service? Contract for services? Volunteer Employee Independent consultant No Other? Member of public 14

15 Getting volunteers involved Is there a contract? Some case examples: Case example: the camp hand and the horseriding camp Teen Ranch Pty Ltd v Brown (1995) 87 IR 3068 NSW SCA Case example: the camp caretakers Morris v Anglican Community Services (2000) SA IRC 24 15

16 Getting volunteers involved Is there a contract? Cases show 3 things are needed to show an employment contract Intention to create legal + Consideration + relations Mutuality of obligation = contract 16

17 The spectrum Step 1 Is there a contract? Step 2 Yes If yes, what kind of contract is it? Step 3 Contract of service? Contract for services? Volunteer Employee Independent consultant No Other? Member of public 17

18 Getting volunteers involved If no contract, what s the person s status? If there is no contract and the person is undertaking voluntary tasks for the NFP they are probably a volunteer No set definition of volunteer in law or legislation Case law indicates there will be a volunteer relationship if: the parties did not intend to create a legally binding relationship the person is under no obligation to attend the workplace or perform work the person doesn t expect to be paid for their work (but reasonable reimbursement of expenses is OK 18

19 Getting volunteers involved Spectrum Potential or spontaneous volunteers Traditional volunteer Mutual obligation volunteering / work (related to government payment or court order) Unpaid work Employment relationship Contract of service Contractor relationship Contract for services Member of public Spontaneous Volunteer Volunteer Voluntary work under Court Order Work activity for Govt. payment Work for the dole Work experience Voluntary work Green Corps Vocational placement or Internship / work experience or Unpaid work trial Casual employee Fixed-term contract employee Permanent employee Independent contractor or consultant 19

20 Getting volunteers involved Volunteer agreement 20

21 Getting volunteers involved Top tips: Have a volunteer agreement: or implement a simple system for being able to determine when someone is a volunteer or when they have another status Be clear and consistent in use of language: use volunteer reimbursement, agreement and we would be pleased if you would instead of pay, salary, contract or you must Seek advice early: if your group is uncertain of the basis on which you are engaging, or proposing to engage a person to do work 21

22 2. Screening volunteers

23 Screening volunteers 23

24 Screening volunteers Summary Working with Children Checks Mandatory where child-related work as defined by the Working with Children Act 2005 (Vic) Criminal record checks Contractual requirement (including via funding) Otherwise discretionary analyse volunteer role Other Licence checks Qualification checks Reference and identification checks 24

25 Screening volunteers Working with Children Checks The Working with Children Act 2005 (Vic) requires anyone involved in child-related work to have a Working with Children Check Child-related work is work which usually involves (or is likely to usually involve) direct contact with a child and the contact with the child is not directly supervised by another person 25

26 Screening volunteers Activity 1: Working with Children Check quiz 26

27 Screening volunteers Working with Children Checks become familiar with the child-related work definition in the Working with Children Act have a WWC Check listed as a standard check on your role descriptions and consider for each position be familiar with the limitations of a WWC Check - it checks for specific offences only it may not be enough review your compliance with Working With Children Act annually 27

28 Screening volunteers Criminal record checks Criminal record checks (CRCs) are generally not mandatory via the law but check: whether contracts require whether an occupational requirement A CRC is conducted over a national database for a broad range of offences (conviction or finding of guilt) Check is point in time only There are laws that prevent discrimination on the basis of irrelevant criminal record 28

29 Screening volunteers What do we do if a volunteer s criminal record check discloses offences? 29

30 Screening volunteers Activity 2: Julie and the volunteer checks 30

31 Screening volunteers Other checks If driving, keep a copy of the volunteer s driving licence on file Can obtain a VicRoads check Other licences or permits example: handling certain chemicals example: responsible service of alcohol Qualifications (eg legal practicing certificate) Reference and identification checks a good idea 31

32 Screening volunteers Top tips: Use volunteer role description: to review roles, determine background checks required for position (either by law or best practice) and implement Implement a fair process: for background checking, including speaking to applicant if negative check Keep record of checks completed on file: but this is sensitive information so take care in relation to privacy and confidentiality 32

33 3. Volunteers and safety

34 Volunteer safety What do you worry could go wrong? 34

35 Volunteer safety Members of public Clients Employees & contractors Volunteers Members NFP 35

36 Volunteer safety The relationship between negligence and OHS laws Negligence laws Occupational health and safety (OHS) laws 36

37 Volunteer safety Negligence law Negligence law applies to Victorian NFPs: owe a duty of care to people it could reasonably foresee may be affected by its activities; and the standard of care a NFP must take is reasonable care to avoid foreseeable harm, injury or loss Case examples: the volunteer on the roof examples Hrybynyuk v Mazur [2004] NSWCA 374 Lenz v Trustees Catholic Church and Anor [2005] NSWCA

38 Volunteer safety Occupational health and safety laws In Victoria, Occupational Health and Safety Act 2004 (Vic) (Vic OHS Act) applies to: organisations that are employers, and organisations that manage or control a workplace Basic legal responsibility of community organisations: provide a safe workplace for people involved in your activities - employees, volunteers, members of public take reasonable care to avoid foreseeable harm 38

39 Volunteer safety Members of public Duty TO the volunteer Clients Employees and contractors Volunteers Members Groups owe their volunteers a duty of care if volunteer injured in course of duties, group may be liable if hasn t taken reasonable care NFP 39

40 Volunteer safety Duty FOR the volunteer Members of public Duty TO the volunteer If volunteer injures others, the volunteer was (until 2002) liable but changes to the Wrongs Act mean if injury occurs while volunteer performing their role, the organsiation may be liable for volunteer s action Clients Employees and contractors Volunteers Members NFP Groups owe their volunteers a duty of care if volunteer injured in course of duties, group may be liable if hasn t taken reasonable care 40

41 Volunteer safety Wrongs Act 1958 (Vic) and volunteers A volunteer is not personally liable in any civil proceeding for anything done, or not done, in good faith by him or her in providing a service in relation to community work which is organised by a community organisation.. When the above definition is met, liability transfers to the community organisation No waivers or indemnities Some exceptions: drug and alcohol, criminal activities, authorised duties 41

42 Volunteer safety Duty FOR the volunteer Members of public Duty TO the volunteer If volunteer injures others, the volunteer were (until 2002) liable however changes to the Wrongs Act mean if injury occurs while volunteer performing their role, organisation may be liable for volunteer action. Clients Employees Volunteers Members NFP Groups owe their volunteers a duty of care if volunteer injured in course of duties, group may be liable if hasn t taken reasonable care. 42

43 Volunteer safety Volunteer role description 43

44 4. Child safety

45 Child safety Child Safe Standards Compulsory minimum standards for organisations Apply to organisations that provide services for children: Government funded or regulated from 1 January 2016 Other organisations from 1 January 2017 See Department of Health & Human Services - An overview of the Victorian Child Safe Standards 45

46 Child safety Child Safe Standards Standard 1: Strategies to embed an organisational culture of child safety, including through effective leadership arrangements Standard 2: A child safe policy or statement of commitment to child safety Standard 3: A code of conduct that establishes clear expectations for appropriate behaviour with children 46

47 Child safety Child Safe Standards Standard 4: Screening, supervision, training and other human resources practices that reduce the risk of child abuse by new and existing personnel Standard 5: Processes for responding to and reporting suspected child abuse Standard 6: Strategies to identify and reduce or remove risks of child abuse Standard 7: Strategies to promote the participation and empowerment of children 47

48 Child Safety Compliance with Child Safe Standards Resources and tools on the Department of Health and Human Services (DHHS) website Training/information sessions are available through DHHS First phase: compliance is to be monitored through existing government funding and reporting arrangements 48

49 Child safety Criminal law reform Grooming 9 April 2014 Failure to disclose child abuse 27 October 2014 Failure to protect a child from sexual abuse 1 July 2015 See Department of Justice & Regulation 49

50 Thank you. Questions?