Health & Safety: Volunteers
In general, the Health and Safety at Work Act 2015 (“the HSWA”) imposes duties on a person conducting a business or undertaking (“PCBU”) in any workplace. A workplace includes any place where work is carried out for a business or other type of undertaking, even if that business or undertaking is a not-for-profit organisation.
However, there is a carve-out in the legislation, so that a “volunteer association” is not a PCBU which owes the duties which other individuals and businesses will owe. The definition of a volunteer association is fairly narrow. A volunteer association is a group of volunteers (whether incorporated or unincorporated) working together for one or more community purpose, where none of the volunteers, nor the association as a whole, employs anyone to carry out work for them.
An organisation cannot therefore be prosecuted for a breach of the HSWA if it only has volunteers. If an organisation has employees as well as volunteers (even if only in one of its branches), then it will be treated like any other PCBU, and may be prosecuted, regardless of whether the breach was in respect of the health and safety of a worker or of one of the volunteers. Volunteer groups that only engage contractors (instead of having employees) are not classed as PCBUs.
A volunteer worker is defined in section 19(3) of the HSWA and includes doing work on an ongoing, regular basis and such work must be an integral part of the business.
A volunteer for an annual race, while possibly integral to the event, would not be a volunteer worker as they are not doing work for the organisation on a regular and on-going basis.
A PCBU owes its volunteer workers the same duties as other workers (eg must provide health monitoring) with the exception of the duties in Part 3 of the HSWA (worker engagement and participation).
All other volunteers (eg casual volunteers like a volunteer marshal for an annual race) are owed the primary duty of care as ‘other persons’.
Volunteer workers have the same duties as other workers (section 46 of the HSWA).
Who can be liable for offences?
Volunteers cannot be prosecuted for failing to comply with a health and safety duty under the HSWA (section 51) unless it is a duty holder under section 45 (duties of workers) or section 46 (duties of other persons at workplaces).
Many not-for-profit organisations have volunteer board members or trustees. These people will be considered to be officers of the PCBU, as they occupy a position that allows them to exercise significant influence over the management of the organisation.
A volunteer officer has the same duties that a paid officer has to exercise due diligence to ensure that the PCBU complies with its health and safety duties.
However, despite having these duties, a volunteer officer cannot be prosecuted under the HSWA for failing to comply with these duties. This is a slightly bizarre situation of the law creating an unenforceable duty.
A volunteer officer could still be prosecuted:
as a worker or other person in a workplace, for breaching their obligations to take care of their own and others’ health and safety; or
as an officer, for failing to comply with any enforcement measures mandated by WorkSafe, such as an improvement notice or prohibition notice which has been issued to the PCBU.