Volunteers and voluntary organisations

 

    Are volunteers covered by the NSW Anti-Discrimination Act?

    Because volunteers are not generally regarded as employees, they may not be covered by most parts of the NSW Anti-Discrimination Act (ADA).

    However, the ADA's sexual harassment provisions do cover volunteers, so it is against the law for a volunteer to be sexually harassed during their voluntary work. 

    In some circumstances, it may also be against the law to discriminate against or harass a volunteer on the other grounds covered by the ADA. This may be the case if they receive a benefit that is more than out of pocket expenses in return for their voluntary work.

    However, it is good practice not to discriminate against or harass any volunteer workers, in the same way that the law prohibits discrimination against and harassment of paid workers.

    What is a voluntary body?

    A voluntary body is a body that is not established by an Act of Parliament, and its activities are not for profit. Examples of voluntary bodies are charities, Rotary clubs, societies, etc.

    Do voluntary bodies have to comply with anti-discrimination law?

    Voluntary bodies must comply with anti-discrimination law in relation to both employment practices and service delivery. In general, they must ensure that there is no unlawful harassment or discrimination in relation to:

    • recruitment procedures and decisions;
    • how people are treated while they are employed; and
    • separation/termination procedures and decisions.

    What about membership rules?

    Section 57 of the Anti-Discrimination Act says that non-profit bodies (other than registered clubs, building or friendly societies, credit unions and some cooperative housing societies) can discriminate in relation to their admission to membership and the provision of benefits, facilitates or services to members.

    What about service delivery?

    In general, if a voluntary body provide goods, services or accommodation to the community, it must do so in a non-discriminatory manner. This means that it cannot refuse to provide services to a person or group of people because of their age, race, sex, pregnancy, breastfeeding, marital or domestic status, homosexuality, transgender status or disability. In addition, these things must not influence the type of service it provides or the manner in which the service is provided.

    However, if the voluntary body (or a part of it) was established specifically to provide a service for a particular age group, race or religion, anti-discrimination law says that it can refuse services to people who aren't in that group.

    Can voluntary bodies discriminate on religious grounds?

    Voluntary bodies can require that applicants and employees adhere to certain religious beliefs. If the voluntary body is established to promote a particular religion, it is exempt from anti-discrimination law in relation to who it appoints to jobs in the organisation.

    However, this exemption only applies to recruitment. Once people are working for the voluntary body, it must generally still comply with anti-discrimination law in relation to all employees' terms and conditions of employment, harassment during employment, and decisions about termination or employment. It can only discriminate against or harass employees if it can show that this is 'necessary to avoid injury to the religious susceptibilities of the adherents of your religion'.

    What if the voluntary body receives a benefit from a deed or will?

    Many charitable or voluntary organisations receive money or other benefits from deeds or wills. Sometimes these deeds or wills are very specific about who the money or benefit is to go to. Section 55​ of the Anti-Discrimination Act exempts wills, deeds or other legal or equitable instruments which donate charitable benefits from having to comply with the Anti-Discrimination Act. This means that it is OK to comply with the specific terms of such a will, deed or instrument.

    Examples of benefits from wills or deeds which could fall within this exception are:

    • a university scholarship for women surveyors;
    • a will which gives a bequest to an HIV/AIDS organisation;
    • a gift for the establishment of chair for women at a university;
    • a gift to promote a chess tournament for girls under 18.