Many businesses across Australia are fortunate to have volunteer workers to help them provide invaluable support to the community. Work health and safety (WHS) laws define a volunteer as a person who works without payment or reward, irrespective of whether you pay them for out-of-pocket expenses. This article will outline important obligations under WHS you should know before you hire volunteers.
Who Has a Duty Under WHS Law for Volunteers?
You should be aware that as a person conducting a business undertaking (PCBU), you have a primary duty of care to ensure workers’ health and safety while working at your business. This extends to others who may be affected by the carrying out of work, such as visitors.
It is important to understand that volunteers may, in some instances, be considered to be ‘workers’ for the purposes of WHS law. If this is the case, you may owe volunteers the same duties that you owe to employees or independent contractors.
If you are an organisation that employs any paid workers but also engages volunteers, you likely owe both your paid workers and unpaid volunteers duties under WHS law. However, if you are a volunteer association made up entirely of volunteers and do not employ any paid workers, you likely do not have the same duties under WHS laws.
As an employer, it is essential to understand what employment laws have changed and their implications for your business — particularly the changes to the Fair Work Act 2009 through the new Closing the Loopholes legislation.
What ‘Work’ Do WHS Laws Cover?
Activities that may be considered work covered by WHS law include:
- maintenance of the things needed to enable an organisation to carry out its work; and
- activities that paid workers ordinarily do, but volunteers are now doing, such as driving elderly clients to appointments.
It is also worth noting that the lines between volunteers and employees can sometimes become blurred, especially when volunteers take on significant responsibilities or work extensive hours over an extended period.
To mitigate this risk, employers should clearly define the volunteer role and ensure that volunteers do not perform duties typically carried out by paid staff. It is also advisable to implement measures to prevent volunteers from working excessive hours or taking on tasks beyond their agreed scope.
Continue reading this article below the formWhat Are Your Obligations?
Your duty to ensure the health and safety of your volunteers extends ‘so far as is reasonably practicable.’
What is ‘reasonably practicable’ in the circumstances can depend on the:
- nature of your business, such as whether it is for-profit or not-for-profit;
- the tasks you expect your volunteers to carry out;
- location or environment where your volunteers will complete these activities;
- risks associated with completing these activities; and
- measures you can put in place to minimise this risk.
To meet your duty under WHS law, you may have to provide:
- training, information and instructions on how your volunteers can complete work safely;
- personal protective equipment to your volunteers;
- onsite first aid people or first aid training; and
- information on emergency procedures, such as how to report hazards and incidents.
It is also important to remember that taking these reasonably practicable steps does not mean you have to eliminate risks within the environment completely. While eliminating risks may be reasonable in some instances, it may not be so in others. Where this is the case, you should take steps to minimise or reduce the impact of any hazards or risks on workers, including volunteers, within the specific environment.
Talking About Safety
In addition to the duties mentioned above, fulfilling your duty under WHS law would also include talking to your volunteers about health and safety. This can include:
- discussing potential hazards associated with their activities and how you are protecting them from harm;
- issuing regular newsletters that feature work health and safety news, information and updates;
- regularly updating the volunteer sections of notice boards or websites; and
- having mechanisms to receive volunteers’ concerns about health and safety, such as an email ‘suggestions’ box.
What Other Laws Apply to Volunteers?
There are other laws to consider which may or may not apply to volunteer workers.
Most notably, anti-discrimination laws apply to all workers to prohibit discrimination on several attributes, including race, gender, age, disability, religious or political belief or marital status. Consequently, you cannot treat a volunteer or group of volunteers less favourably than other workers due to a specific characteristic such as their gender or skin colour.
While legal recourse may be more limited for volunteers than for employees, you must still have clear policies and procedures in place to address any issues or grievances that may arise.
You should also be mindful of potential intellectual property implications when engaging volunteers. If volunteers create or contribute to any copyrightable works or inventions during their voluntary work, it is crucial to have agreements in place that clearly define ownership and usage rights.
When is Unpaid Work Against the Law?
There can be situations where a worker satisfies the definition of a volunteer, but their unpaid work is illegal. More broadly, unpaid work is only legal when:
- a person undertakes a vocational placement; or
- an employment relationship does not exist.
You should note that the more formal volunteer work arrangements become, the greater the possibility that an employment relationship will exist. For example, an employment relationship may exist if you expect the volunteer to work according to a regular roster. In saying that, it would be difficult to consider a volunteer who undertakes work for a selfless purpose or to further a belief in the not-for-profit sector as part of an employment relationship.
Key Takeaways
If you are an organisation that employs any paid workers but also hires volunteers, you likely owe both your paid workers and unpaid volunteers duties under WHS law. WHS law requires those who conduct a business or undertaking with paid staff to ensure their health and safety as reasonably practicable or reasonably able to be done. This can include providing volunteers with adequate training and protective gear to complete certain activities.
If you want to clarify your health and safety obligations towards your volunteers, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
If you are an organisation that employs paid workers but also hires volunteers, you likely owe your paid and unpaid workers duties under WHS law. However, if you are a volunteer association and do not employ any paid employees, you likely do not have the same duties.
In a broad sense, WHS law requires you to ensure the health and safety of your staff as far as is reasonably practicable.
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