Who is 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’s generally used to mean 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 then 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, all of which are discussed in this section.
The protections in the Human Rights Act 1993 against discrimination in employment also cover people doing “unpaid work”. (For the Human Rights Act generally, see the chapter “Discrimination”.)
Community organisations’ obligations to their volunteers
Whether your organisation owes its volunteers any duties under the Health and Safety at Work Act depends on the organisation and the type of volunteer:
- If your organisation doesn’t employ any staff, it’s not covered by the Health and Safety at Work Act at all and so has no duties under that Act to its volunteers (the Act calls these non-employer organisations, “volunteer associations”). But it will owe all its volunteers a general duty of care under the common law (law made by the courts).
- If your organisation employs one or more staff, then it will owe duties under the Health and Safety at Work Act to its volunteers as well as to those employees, as follows:
- Regular, ongoing volunteers will generally be owed the same duties as employees.
- More casual volunteers will be owed a lesser duty, the same as for visitors, customers and others who don’t do any work for the organisation but who are in the workplace or the organisation’s premises for a time.
For more details, see the chapter “Employment conditions and protections” of the Community Law Manual.
Note: Community organisations that don’t employ any staff and so aren’t covered by the health and safety laws should adopt good practices to make sure their volunteers are safe. Volunteers working independently outside any organisational structure should also use those practices for themselves.
Some of the other Acts that protect employees also provide protections to volunteers, including:
- the Criminal Records (Clean Slate) Act 2004 (see the chapter “The criminal courts”)
- the Human Rights Act 1993 (see the chapter “Discrimination”)
- the Privacy Act 1993 (see the chapter “Privacy and information”).
Responsibility for volunteers’ actions
An organisation will be liable (legally responsible) for the negligence or other torts (civil wrongs) of a volunteer who is acting in the course of his or her activities on the organisation’s behalf.
It’s not relevant that 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 relevant 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 he or she is driving home at the end of the day.
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:
- Although social workers aren’t required to be registered under the Social Workers Registration Act 2003, it’s good practice to ensure that volunteers in this role are in fact registered because this gives an assurance of their competence.
- Under the Health Practitioners Competence Assurance Act 2003, health practitioners must act within their scope of practice, which is defined by the relevant authority for the particular 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). You should therefore ensure that any health-related service your organisation provides is performed by an appropriate person.
- Council permits are required for particular activities, such as working on roofs or fundraising in the street.
Reimbursing 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. As a guide, 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, available here.
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 and how earnings affect them” in the chapter “Dealing with Work and Income”) of the Community Law Manual.
A volunteer is legally defined as a person who does not receive any reward for the work they have agreed to do. They are not employees under the Employment Relations Act 2000. Reimbursements made to volunteers for expenses do not fall within the legal definition of ‘reward’. A person who receives training and works for the purposes of gaining experience is not a volunteer under the Health and Safety at Work Act 2015.