Recruitment - What legal issues should we consider when we take on a new volunteer?
Attracting, recruiting and appointing new volunteers may well be vital to your organisation. There are legal issues to consider within the recruitment process, including:
Equal opportunity and anti-discrimination law
PilchConnect has produced an Information sheet on discrimination in recruiting volunteers:
Screening procedures for potential candidates
Whenever your not-for-profit organisation is looking to recruit volunteers you need to conduct appropriate screening procedures. You may have legal obligations to conduct certain types of checks before you recruit (see below, Working With Children Checks, for example).
Screening applicants appropriately when your organisation is recruiting is a good way to try to keep your organisation safe and to head off potential problems before they arise.
All organisations have a duty of care (a legal responsibility) to ensure a safe environment for employees, volunteers and clients, and being appropriately informed about your volunteers will help.
Working with children checks
Employees (or volunteers) of any organisation who will be undertaking 'child related work' must not commence in that role until they obtain a Working with Children check (WWC Check). The Victorian Working With Children Act 2005 defines what is 'child related work'. It includes roles and responsibilities that involve regular, direct contact with a child.
The WWC Check focuses on specific offences (which may impact on the safety of children), and is 'ongoing', meaning that the applicant's criminal record is monitored throughout the life of the WWC Check.
The WWC Check also involves inquiries being made with certain professional disciplinary bodies beyond law enforcement agencies (eg, the Victorian Institute of Teaching and the Out of Home Carers Suitability Panel).
For PilchConnect's comprehensive Guide on Working with Children Checks, go to:
Criminal record (police) checks
Officially, these are called National Police Certificates.
If your organisation wants to require a potential volunteer to provide a National Police Certificate, you need to contact Victoria Police. Victoria Police will not provide information about an individual's criminal history without that person's written consent. For more information go to the Victoria Police website and CrimCheck.
Police checks are different from WWCs and you may want to require both, depending on the nature of the work being done by the volunteer. For example, not all criminal offences will be checked for as part of a WWC, only those that the Department of Justice considers to pose a risk to children. Offences such as traffic offences or minor thefts may not be revealed through a WWC Check.
A police check allows an organisation to be aware of all previous convictions - child-related or not - and this may be appropriate if the volunteer's role will involve, for example, (you are seeking a volunteer who, for example, may be) handling money or driving clients between locations.
While police checks are generally not necessary there are certain industries where they are mandatory. For example, aged care facilities that are funded by the Australian Government are required to screen employees and volunteers who have (or are likely to have) direct contact with care recipients. You should check your funding and insurance contracts to see whether any background checks are required.
Those who recruit volunteers for services have a duty of care to ensure that they take reasonable steps to avoid harm to the organisation and its existing employees, volunteers and clients. Even if the law, or any funding agreement, does not require a police records check, your organisation may decide that a criminal record check is necessary.
Important
If your organisation requires that applicants undergo police checks during the recruitment process, you must not refuse an applicant because he or she has a prior conviction for an offence that has no relevance to the position.
There are legal protections against discrimination on the basis of criminal record, and you should only refuse an applicant on the basis of a criminal past when you believe that the prior offence prevents the applicant from performing the 'inherent requirements' of the position.
For more information go to Human Rights and Equal Opportunity Commission (HREOC).
Privacy laws
In the recruitment process your organisation will gain access to personal information about candidates, so the privacy laws may apply to govern the ways your organisation manages that information.
Even if the privacy laws don't apply to your organisation, the ways your organisation uses, stores and discloses that information might impact on your reputation, so it is worth considering how best to approach information about individuals.
PilchConnect has produced a guide on privacy, go to Privacy.
Volunteer agreement or contract
A volunteer agreement (contract), which sets out the role and responsibilities of the volunteer, and is signed by your organisation and the volunteer, can prevent legal issues arising.
An agreement can be particularly helpful if there is a question about whether a volunteer was acting within their authority, and therefore on behalf of the organisation.
Importantly, any volunteer agreement should make clear that the volunteer is not an employee. It should not use language that can be interpreted as exceeding a volunteer's relationship, for example that there is a requirement to turn up for a fixed period (ie, position is not voluntary).
Resources
Assessing and screening new volunteers
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This section of the Victorian Department of Justice's website provides information about the requirement for your volunteers to get WWC checks if they are involved in 'child-related work'. The site includes application forms and details of the fields of work covered by the legislation.
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This section of the Victoria Police website provides information about VicPol procedures for conducting police records checks. It includes guidelines about the process and application forms.
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This page of the Our Community website provides information on recruiting, screening and managing volunteers.
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This page of the Our Community website provides information on recruiting, screening and managing volunteers.
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This resource from Volunteering Australia provides an overview of background check requirements and the associated costs across the various states and territories.