What to think about when your school engages with volunteers
This article is based on a session led by Michael Barnes, Senior Legal Counsel at Carroll & O’Dea Lawyers, at its Charity Law Day in August 2024. This article has been prepared by Samuel Chu.
Parents in your school community are probably very invested in the success of their child. They may want their child to receive a world-class education from your school’s teachers. At times, they may help out with fundraising for your school’s capital works or other educational needs. They may even take things a step further and give up their time to support your school’s events such as swimming carnivals, Saturday sport, or open days.
Parents are not the only people who are invested in the success of your school’s students. Alumni may want to give back to support their school, and others may also choose to give up their time to support your school.
These contributions from parents, alumni and other community members are great – long may they continue. However, these contributions do not operate in a vacuum and so you must think carefully about the following legal issues and practical risks involved when you engage with volunteers to support your school’s activities.
Firstly, and before engaging with your volunteers, your school should think about what your relationship with its volunteers should look like. To what extent will your school’s volunteers represent themselves as being a part of your school? To what extent should your school be responsible for the conduct of its volunteers? How will you manage the interaction between your school’s volunteers (on the one hand) and your school’s employees, students, and parent community (on the other hand)?
Secondly, your school should consider how its volunteers will be trained, organised and managed. Whilst your school’s volunteers are not employees, there should be proper processes in place to support the recruitment of, and ongoing engagement with, your school’s volunteers.
This may involve:
- having comprehensive recruitment and induction processes for your school’s volunteers;
- setting out clear expectations regarding what a volunteer for your school is supposed to do and how they are supposed to act when doing things for your school;
- having policies for reimbursing your volunteers for expenditures in performing the role of a volunteer; and
- having other relevant procedures in place (e.g., confidentiality requirements and dispute resolution procedures) to support your school’s engagement with your volunteers.
Thirdly, be aware that your school may be exposed to legal obligations towards its volunteers or because of them under the Civil Liability Act 2002 (NSW) (in relation to certain acts of volunteers, including acts that are outside the authorised scope of the volunteer’s activities or that are contrary to instructions given by your school), the Work Health and Safety Act 2011 (NSW) (in relation to protecting and ensuring health and safety) and the Fair Work Act 2009 (Cth) (in relation to bullying).
Lastly, your school must think about how to document its relationship with its volunteers. Section 15AA of the Fair Work Act 2009 (Cth):
- determines the ordinary meanings of the term “employee” and “employer”; and
- by extension, says that whether an individual is an employee of a person must be determined by “ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person”, including by considering all the circumstances of the relationship between the individual and the employer. These circumstances may include both the contract governing the relationship between the individual and the employer and how the contract is performed in practice.
This means that your school needs to document and reinforce that, in all the circumstances, its relationship with its volunteers does not involve entering into a contract of employment.
If your school needs support to minimise risks involved in engaging with its volunteer base, please contact David Ford, Stephanie McLuckie or Samuel Chu.
