Many businesses across Australia are fortunate to have volunteer workers to help them provide invaluable support to the community. Work Health and Safety (WHS) law define a volunteer as a person who works without payment or reward, irrespective of whether the person receives out of pocket expenses. Volunteers can work for a person conducting a business or an undertaking as a sole trader, partnership, company, unincorporated body or association or government department.

Who Has a Duty Under WHS Law for Volunteers?

WHS law requires those who conduct a business or undertaking with paid staff to ensure their health and safety so far as is reasonably practicable or reasonably able to be done. This duty also extends to their volunteer workers if they have any.

Example: A legal centre with volunteer interpreters
WHS law says the duty to ensure health and safety are the same for the interpreters as volunteers and the lawyers as paid employees. The law applies differently to volunteer associations. A volunteer association is a group of volunteers who work together for a community purpose where none of the volunteers are employed to carry out the work. This type of organisation does not have a duty under WHS to ensure the health and safety of the volunteers because it is excluded from the definition of “a person conducting a business or undertaking.”

Example: An organisation of refugee supporters
WHS law says that the organisation does not have the duty to ensure their health and safety if all of the supporters are volunteers and none is employed by the organisation to undertake such work. It is still a good idea to ensure the health and safety of your workers even if your organisation is a volunteer association and you do not have such duty by law.

Duties for Employers

WHS law says that a person conducting a business or undertaking must ensure, so far as reasonably practicable, that the health and safety of their workers is not put at risk from the work they carry out. For example, an organisation can do this by providing and maintaining:

  • Work environments that are safe;
  • Work systems that are safe;
  • Adequate facilities; and
  • Information, training, instruction or supervision where necessary.

Duties for Volunteers

All workers, regardless of whether they are being paid or not, have health and safety duties while at work. These include:

  • Taking reasonable care for their own health and safety;
  • Taking reasonable care that their actions do not badly affect other people;
  • Complying with reasonable instructions; and
  • Co-operating with reasonable policies and procedures that they have been notified of.

What other laws apply to volunteers?

There are other laws that to be aware of which may or may not apply to volunteer workers.
For example:

  • Anti-discrimination laws apply to all workers to prohibit discrimination on a number of attributes including race, gender, age, disability, religious or political belief or marital status.
  • Workers’ Compensation laws generally do not cover volunteers; and
  • Workplace Relations law do not consider volunteers to be workers.

When is volunteer work against the law?

There can be situations where a worker satisfies the definition of a volunteer but their unpaid work is illegal. For example, an employer may ask a prospective employee to work for a trial period to find out whether they are suitable for the job. This is only legal when:

  • It involves the worker demonstrating skills which are needed for the job;
  • It is for a reasonable period to demonstrate these skills which are dependent on the nature of the work;
  • The worker is supervised for the entire trial.
  • If an employer requires the prospective employee to work for a longer period than what can be considered reasonable to demonstrate their skills, then they must be paid at their minimum appropriate rate of pay.
  • It is then up to the discretion of the employer whether they want to take the employee on with a probationary period if they want to assess their skills further.

We have many experienced employment lawyers at LegalVision, who can help both employers and employees with volunteer workers. Feel free to contact us on 1300 544 755.

Lachlan McKnight

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