Corporate Volunteer Programs - Legally Speaking!

There are a number of issues for employers who want to implement corporate volunteer programs within their businesses — not the least are the legal implications and liabilities.

Legal Partner with the law firm Freehills, Kate Jenkins says although the work the employee is performing on the volunteer program is for another (charitable) organisation, an employer may still attract certain liabilities.

These fall into several areas including:
 any injuries the employee may sustain under accident compensation legislation or common law negligence claims;
 breaching its obligations under occupational health and safety legislation in failing to provide a safe working environment;
 any mistakes the employee may make in the performance of his or her role as a volunteer (negligence); and
 any conduct by its employee or in some cases suffered by the employee who contravenes equal opportunity legislation, such as unlawful discrimination, sexual harassment and/or victimisation.

Kate Jenkins says basically a company will be held accountable for its employees acting as volunteers where is can be established that the employee is acting in the context of an employer/employee relationship with the company.

Jenkins says this relationship will be established where the employee can be classified as carrying out work for the employer or engaging in conduct in the course of employment.

This means that a company’s liability will depend on how close the nexus is between employment and the activities being undertaken by its employee.

She says the major issue for employers wanting to become involved in community service programs, is how to structure their program. The greater the connection between the employer’s involvement and a requirement or expectation that the employee should participate, the more likely the employee will be considered to be acting in the course of his employment and the more accountable the employer will be.

Jenkins says where a company requires an employee to undertake community service in a structured program, it will be held liable for its employees.

Alternatively, Jenkins says a company may wish to minimise its liability by simply providing its employees with the opportunity to take community service leave. That is, providing for 1 or 2 days or a week’s leave a year, to be taken to assist in a community service program in a volunteer capacity. As an employer is not liable for its employee when on other forms of leave, it should not be responsible in this instance either – when taking advantage of the paid absence the employees are not at work, nor are they undertaking work for the company.

Jenkins says the mere payment of an employee during a period in which community service is undertaken will not mean the employee is acting in the course of his employment, provided there is no connection between the employment and the community service beyond mere payment of salary or wages for the relevant period.

While this minimises liability, Jenkins says employees need to be encouraged to make inquiries with the host organisation in relation to issues such as health and safety risks, workers’ compensation or other insurance coverage.

For information about Freehills Pro Bono Legal Program go to www.freehills.com.au.