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When you’re not an “employee”: Differences between employees, contractors and volunteers

Volunteers

When am I a “volunteer”?

Health and Safety at Work Act 2015, s 16 (definition of “volunteer”); Human Rights Act 1993, s 2 (“employer”)

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 2015 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 the chapter, “Employment conditions and protections”, under “Health and safety protections”).

The protections in the Human Rights Act 1993 against discrimination in employment also cover people doing “unpaid work”. (For more information on the Human Rights Act, see the “Discrimination” chapter.)

What obligations do community organisations’ have to their volunteers?

Health and Safety at Work Act 2015, ss 17, 19, 36

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 at all, which means it has no duties under that Act to its volunteers. In the Act these non-employer organisations are called “volunteer associations”. However, volunteer associations still owe all volunteers a general duty of care under the common law (that is, under law made by the courts.)

    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.

Some of the other Acts that protect employees also provide protections to volunteers, including:

For more details, see the chapter “Employment conditions and protections”, under “Health and safety protections / Who’s protected by the health and safety laws?”.

When is a community organisation responsible for its volunteers’ actions?

An organisation will be liable (legally responsible) for the negligence or other civil wrongs of a volunteer who is 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.

The key issue is whether the person was acting on the organisation’s behalf at the time. For example, the organisation may be liable for the negligent conduct of a volunteer driver while the driver is doing deliveries for it. However, the organisation won’t be liable for the volunteer’s conduct when they’re driving home at the end of the day.

Note: Council permits are required for particular activities, such as working on roofs, or fundraising in the street.

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.

For example:

  • Specialist roles like social workers aren’t required to be registered under the Social Workers Registration Act 2003, though it’s good practice to ensure that volunteers in this role are registered because this gives an assurance of their competence.
  • Health Practitioners Competence Assurance Act 2003, s 8

    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.

Reimbursement guidelines

Organisations can use the rates published by a reputable independent New Zealand source representing a reasonable estimate, such as the Automobile Association’s mileage rates. Organisations can also use the rates published by the Inland Revenue (go to www.ird.govt.nz).

Whether your organisation refunds volunteer expenses, and how it does this, is relevant to a number of significant legal provisions – for example:

  • Tax laws – Reimbursement payments are treated as tax-exempt income (the volunteer will not need to pay income tax), provided the payment is based either on actual expenditure or on a reasonable estimate of the likely cost. Further, some organisations make “honorarium” payments to their volunteers: these are payments paid for volunteer services where no fixed payment (such as wages) would normally be made. Honorariums aren’t tax-exempt and are treated as taxable income.
  • Immigration – If a visitor to New Zealand receives a “gain or reward”, they must hold a work visa. If expenses reimbursed to a volunteer are not “actual and reasonable”, they may be considered to be a “gain or reward”.
  • Driver licensing – You must hold a passenger service licence and have a “P” (passenger) endorsement on your driver licence if you carry passengers in your own car, are reimbursed for your expenses, and are not doing this for an area health board, local council or incorporated charitable organisation (see the NZ Transport Agency’s Factsheet 18, “Volunteer Drivers and Exempt Passenger Services”, available from: www.nzta.govt.nz).
  • Benefits – If your volunteer is on a benefit, Work and Income may decide that reimbursement of expenses that aren’t “actual and reasonable” in fact amounts to income. If the volunteer’s income is more than a certain amount, the level of their benefit could be affected (see “Benefit rates: How much you’ll get, and how much you can earn” in the chapter “Dealing with Work and Income”).
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