Country Lane Caretakers

Volunteers and unpaid workers

 

This section has been added due to a common issue raised when people talk about Caretakers and "sitters". Many are surprised that there is a fee associated with the services provided by professional Caretakers.

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What is surprising, are the number of landholders that increasingly utilise unpaid workers, or expect tasks, necessary to the business, to be completed by professional workers, yet don't expect to pay! 

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Beware when organising the services of unpaid workers taking care of your property while you are away.

 

Problems with unpaid caretakers only arise... well... when there is a problem!

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Consider a simple slip, trip or fall, or that something gets damaged in the normal course of the care-taking. Maybe the ute gets damaged or they or they dont control a campsite fire. You and your unpaid worker may not take legal action, but it will be 3rd parties (underwriters, insurance company re-insurers and others) that do.

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... and here are some definitions the 3rd parties will look at.

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Workers

 

First of all, what is a worker under Employment law, WHS Act and under Fairwork Australia definition?

 

A worker is a person who carries out work in any capacity for a business or employer or ‘person conducting a business undertaking’ (PCBU) They can be:

 

• an employee

• a trainee, apprentice or work experience student

• a volunteer

• an outworker

• a contractor or sub-contractor

• an employee of a contractor or sub-contractor

• an employee of a labour hire company.

                                   

                                      Taken from the WHS Act 2011 (Commonweatlth)

 

It is this definition everyone from the ATO, WorkCover (Now SafeWork in some states) to lawyers and medical insurance providers, will refer to.

 

In just one sentence and 7 dot-points you have found that your volunteers and unpaid workers are your responsibility.

 

An organisation will be considered to be a PCBU whether or not that business / undertaking is:

 

• Conducted for profit or gain

• conducted by an individual or a group of people

• is structured as a partnership, incorporated association or unincorporated association.

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                                    Taken from the WHS Act 2011 (Commonweatlth)

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Whether you are raising some stock or crops for artisan markets, sell some honey or eggs, have formalised accommodation or primitive camping, you are a PCBU! It is after-all what is on your tax form… “Business”. You are claiming deductions, expenses, utilities on that business… right?

  

 

Volunteers

 

Secondly, the term “volunteer” applies to a number of unpaid workers across clearly defined organisations. The term unpaid worker will be used here on the CLC site, where volunteer is not applicable.

 

The term volunteer is rapidly being applied to more and more people across more and more industry sectors. Private individuals want a range of roles on farms and small land holdings to be performed by unpaid workers.

 

If you own a property that is a PCBU, you are not able to classify your unpaid workers as “volunteers”.

 

Volunteers as unpaid workers under employment law and WHS Act and regulations are quite specific positions intended for people performing roles with:

 

• Churches

• sporting clubs

• government schools

• Charities

• community organisations.

 

Volunteers are not a free labour force for private individuals, businesses and organisations to profit from.

 

To classify your unpaid worker as a "volunteer" (with the intent of circumventing employer / employee responsibilities, WHS laws, Employment Law other obligations and costs) is most likely to be interpreted under legal scrutiny, as unlawful.

 

If something happens on your property with a “volunteer”, they will quickly be found not to be a volunteer under law, and therefore be subject to employment law and WHS act and regulations.

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Your whole idea for having a "low-key" unpaid worker

for the price of a power outlet, access to a water tap and wi-fi, may turn out to be more costly than you ever imagined.

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* Discussed here are unpaid workers under normal business operating conditions. Should you find yourself in a declared emergency or declared disaster relief situation, you may be entitled to benefit from the use of Volunteers.

 

There are a wide range of services, providers and exemptions under these declarations. See Centrelink, related departments of agriculture / environment, local councils and other volunteer community services for assistance.

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Unpaid workers

 

Unpaid work is also mostly intended for quite specific purposes with calculated and assessible outcomes for:

 

• vocational placements

• unpaid internships

• unpaid work experience

• unpaid trials.

 

These positions are recognised (Insurance, Employment Law, WHS) where formalised arrangements have been made between employers, the person wanting the work or experience, or education / training institutions. They were intended for a specific educational outcome and time frame.

 

They are not meant for employers to rotate unpaid workers through the business, or participate on an ongoing basis, as part of their workforce strategy and reduce employment costs. This is becoming common across a number of industries (Agriculture, Hospitality, Tourism, Construction).

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Unpaid workers and Volunteers still cost you...

 

Consider the regular / seasonal / ongoing need to train a new batch of unpaid workers as a cost in lost time to you.

 

If you trained locals who could come in every season, you may be eligible for tax deductions, training subsidies, gain a trained experienced and qualified local workforce and not have to constantly train people.

 

  

Legal status questions

 

Where a legal issue presents itself on your property (accident, injury, damages or other loss), your unpaid worker will be subject to a number of questions in determining their classification and legal status. These questions will be used to ascertain whether your offer of an unpaid worker position was actually legal.

 

These may include:

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• Was the volunteer or unpaid worker position to provide a learning experience? Or was it to get the person to do work to assist with the ordinary operation of the business or organisation?

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• Is, or was, the work normally performed by paid employees or employers? Does the business or organisation need the work to be done?

 

• Who benefits? The Volunteer or unpaid worker, or the business or organisation?

 

• Is the volunteer / unpaid worker obligated to attend? Is there a roster or time required by the organisation?

 

 

If you found the answer to the above questions in your favour, or that the role performed by the volunteer / unpaid worker is essential to your operations, then an employment relationship is likely to exist and therefore employment and WHS laws apply. Your lack of compliance may find you legally responsible / liable, for your Volunteer / unpaid worker.

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Sources: Fair Work Australia, WHS Act and regulations, SafeWork NSW, SafeWork Australia

 

 

You should check:

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• WHS Act (Various states and commonwealth)

• Fair Work Act (commonwealth)

• Employment Law (in your state)

 

You should get advice from:

 

• Your legal advisor

• Your job agency

• Your unpaid worker provider / network

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Friendly agreements

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Please take into account the general message of the above post when seeking the services of an Unpaid Worker. There are elements of risk that you as a business operator and landholder need to understand before anything goes wrong. "Friendly agreements" do not waive your, or the general publics', rights to sue or otherwise make claim.