When you’re not an “employee”: Differences between employees, contractors and volunteers
When am I a “volunteer”?
The word “volunteer” isn’t defined in most legislation, but it generally means a person who chooses to work for the good of the community or some public benefit, and who isn’t paid or otherwise rewarded for this work and doesn’t expect to be. The term isn’t used to include people doing on-the-job training.
The Health and Safety at Work Act defines a volunteer as someone who is “acting on a voluntary basis (whether or not the person receives out-of-pocket expenses)”. The Act distinguishes between two different categories of volunteers – casual volunteers, and those who work on a regular and ongoing basis (called volunteer workers).
The Act imposes different duties on employer organisations for each type of volunteer (see: “Health and safety protections”).
What obligations do community organisations have to volunteers?
The organisation’s obligations to its volunteers will depend on the type of organisation and the type of volunteer.
- Organisations with staff – If your organisation employs one or more staff, even for just one hour a week, then it owes duties to its volunteers under the Health and Safety at Work Act.
- Regular and ongoing volunteers generally have the same rights as employees.
- Casual volunteers have the same rights as visitors, customers and others who don’t work for the organisation but who are in the workplace or the organisation’s premises for a time.
- Volunteer associations – If your organisation doesn’t employ any staff, it’s not covered by the Health and Safety at Work Act. The organisation has a lesser, more general obligation to make sure that, as far as is reasonably practicable, the health and safety of volunteers isn’t put at risk by the work of the business or organisation.
Note: Volunteer associations should adopt good practices to make sure their volunteers are safe. Volunteers working independently outside any organisational structure should always prioritise their own safety too.
For more information on the responsibilities of volunteer organisations, see: “What are my employer’s responsibilities around my health and safety?”
When is a community organisation responsible for its volunteers’ actions?
An organisation will be legally responsible for a volunteer’s actions when they are acting in the course of their activities on the organisation’s behalf – even though the volunteer isn’t an employee and isn’t being paid. This generally doesn’t extend to criminal activity.
The key issue is whether the person was acting on the organisation’s behalf when they were doing the activity. For example, the organisation may be legally responsible for a volunteer’s careless driving if the volunteer was delivering packages for the organisation at the time. However, the organisation won’t be liable for the volunteer’s conduct when they’re driving home at the end of the day.
What are a community organisation’s responsibilities when taking on specialist volunteers?
An organisation should use all reasonable care when taking on volunteers for specialist or expert roles, otherwise it may find itself liable for loss or damage caused by a volunteer.
- Specialist roles like social workers aren’t required to be registered under the Social Workers Registration Act, though it’s good practice to ensure that volunteers in this role are registered because this gives an assurance of their competence.
- Under the Health Practitioners Competence Assurance Act, health practitioners must act within their scope of practice, which is defined by the relevant authority for their profession. Certain practices and health services may be performed only by registered health practitioners (some health practitioners will also be required to hold a practising certificate). This means that you should ensure that any health-related service your organisation provides is performed by the appropriate person.
Should I reimburse volunteers for their expenses?
Organisations often refund expenses incurred by their volunteers while carrying out their volunteer duties. For instance, a volunteer may be reimbursed for the actual cost of buying a bus ticket for work-related travel, or be paid $5 for each working day for the estimated cost of buying lunch.
As a general rule, it’s always best to refund actual and reasonable expenses for which the volunteer has receipts, rather than giving an allowance. Organisations should reasonably estimate the cost of mileage when refunding expenses to their volunteers who use their own vehicle for travel.
If you’re a volunteer and you’re reimbursed more than the amount that your expenses actually and reasonably costed, the money can be legally considered taxable income. If you’re on a benefit this can affect how much you’re entitled to. If you’re on a visa that doesn’t allow you to work for money, this can be considered a breach of that visa.
There are other situations where there are rules around reimbursement – for example, if you’re a volunteer driver. You can find guidance for volunteer drivers online, here (or go to nzta.govt.nz and search “volunteer drivers”).