Since the WHS Act was enacted in NSW on 1stJanuary 2012, the media in particular have picked up on volunteers as being a “new” part of the WHS legislation. This is not strictly true, as whilst volunteers were not directly mentioned in the NSW OHS Act 2000, that legislation stated “ An employer must, so far as is reasonably practicable, ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.”
What has changed is that volunteers have now been added to the definition of “Worker” in the new WHS Act.
A volunteer is a person who is not working for payment or financial reward, but may receive reimbursement for out of pocket expenses. A volunteer may work for either a “Person conducting a business or undertaking (PCBU)” or a “Volunteer organization”.
A volunteer organization that does not employee anyone and conducts at least one community purpose does not have duties under the WHS legislation.
A PCBU can be a corporation, incorporated or unincorporated association, a sole trader, self employed, or a partnership. A PCBU, whose activities may be either for profit or not, may engage ‘workers’, including volunteers, to carry out work in any capacity, and tasks can be either physical or mental.
Duties of PCBUs and Volunteers
Both the PCBU and the volunteer worker have duties under the WHS legislation.
PCBUs must ensure, so far as is reasonably practicable, the health and safety of workers engaged in work for the business or undertaking.
A person volunteering for a PCBU has the same duties as a ‘Worker’, as follows:
A Worker must, while at work:
- take reasonable care for their own health and safety
- take reasonable care for the health and safety of others
- comply with any reasonable instruction by the PCBU
- co-operate with any reasonable policies and procedures of the PCBU.
Duties of a Volunteer “Officer”
A Volunteer can be an “Officer” in a volunteer organization, for example, a director, board member or committee member.
If the volunteer organisation conducts a business or undertaking and employs workers, a volunteer “Officer” has duties under the WHS Act. Officers must exercise due diligence, which at its simplest, requires an officer to concentrate on managing the health and safety risks of the business or undertaking.
A volunteer “Officer” cannot be prosecuted for failing in their WHS duties as an Officer; however, they can be prosecuted as a ‘Worker’.
For further information regarding Officers’ WHS duties click here.
Some organisations that rely on volunteers have argued that the inclusion of volunteers in the new WHS Act places an extra burden on their undertaking. However these organizations, while always subject to the OHS/WHS Act(s) since engaging employees, would have already had (for example) safe systems of work in place, and would have also previously trained volunteers in their safe systems. Such organisations may now simply only need to formalise their processes to prove that volunteers have received information, training, instruction, personal protective equipment and other health and safety provisions.
For more information on volunteering and the WHS legislation please click here.