Publications / Nonprofit
By Barbara Bogiatzis (Special Counsel)
On 1 January 2012 the Australian Capital Territory, New South Wales, Queensland, the Northern Territory and the Commonwealth harmonised their work health and safety (WHS) laws. This means that people conducting a business or undertaking (organisations) and workers, including volunteers, in these jurisdictions are protected by the same WHS laws.
It is important to note that Tasmania will implement the above WHS laws on 1 January 2013, with Western Australia yet to introduce harmonised legislation. South Australia and Victoria are moving towards harmonised legislation however no date has been set for the introduction of these laws.
The introduction of harmonised legislation has brought about some significant changes to the law regarding the activities of volunteers in the Australian Capital Territory, New South Wales, Queensland, the Northern Territory and the Commonwealth.
Many Not for Profit organisations (NFPs) who employ persons, as well as engage volunteers, will be deemed a person conducting a business or undertaking (PCBU) for the purpose of the WHS laws. As such, NFPs will have a primary duty of care under WHS legislation in the various States.
In particular, a PCBU, who has different characteristics or attributes depending upon the section in question, carries the primary duties under the WHS laws except only for duties imposed upon:
- an officer of PCBU
- a worker, and
- a person ‘at a workplace’.
In contrast to the former legislation, the obligation of a PCBU to ensure the health and safety of various persons is qualified by the words ‘so far as is reasonably practicable’.
This is a significant departure from the legal and practical operation of the former legislation. Consequently NFPs will need to ensure the health and safety, ‘so far as reasonably practicable’ of any volunteer workers they employ.
If your organisation engages volunteers to assist in carrying out a variety of activities and employs officers who, amongst other things undertake direct or indirect supervision of volunteers, the legislation affects you.
A volunteer is a person who is engaged to perform tasks on a voluntary basis, as required, without reward.
Volunteers engaged by NFPs are deemed ‘workers’ for the purpose of the WHS legislation and will owe, and be owed, a duty of care. Persons deemed ‘officers’ of the NFP will also have a duty under the WHS legislation to exercise due diligence. This duty will exist irrespective of whether the officer is a volunteer, or in a paid position.
An ‘officer’ for the purposes of the WHS legislation carries the same definition as ‘officer’ of a corporation under the Corporations Act 2001. In short, this term requires that a person be:
- a director or secretary of the corporation
- a person who makes or participates in making decision that affect the whole, or a substantial party of the business of the corporation, or
- has the capacity to affect significantly the corporation’s financial standing, or in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding external professional advisers).
The only distinction that is relevant for NFP officers is that a volunteer officer can not be prosecuted for a breach of their officer duties. A volunteer officer can however be prosecuted under the WHS legislation for failing to comply with their duty of care and officer duties to workers.
NFPs should look at or seek advice on the full terms of the definition of officer in the Corporations Act 2001 in order to determine whether a volunteer is an ‘officer’ of a PCBU, and therefore responsible in the case of accident or injury.
Implications for the Board
The law has implications for the Board from a risk management perspective to take proactive steps in response. Risk management strategies can be developed and implemented by the Board.
The potential risk of exposure to liability that arises for NFPs as a result of the legislative changes means that NFPs should, as a matter of necessity, instigate formal and proper training programs and processes for its volunteers.
In addition, the liability arising for the volunteer as a result of the recent legislative changes creates personal liability for the volunteer and therefore may potentially deter candidates from offering their services on a voluntary basis, or at all. This may have the consequence of reducing the pool of available personnel who are also willing to risk personal liability in the event of injury by a fellow worker whilst carrying out their duties with them.
Risk Mitigation strategies should be formulated by the Board and implemented as soon as possible. For instance, an NFP may now seek to be selective as to who it engages as volunteers. It should ensure that persons selected are those who are willing and capable of undertaking and completing proper training programs by the organisation’s management, and overseen by the Board or a delegated sub-committee.
Any training programs should be tailored to the circumstances, locations and types of duties required to be undertaken by the volunteers, by the NFPs.
From the Board’s perspective, it could:
- become more involved in formulating criteria for the recruitment or selection of volunteers having regard to the nature of NFPs activities and its business model
- ensure that the NFP continues to offer ongoing support to its volunteers so that it maintains the ability to attract:
- suitable persons as volunteers, and
- those who are willing to develop the skills to contribute to the creation of a safe workplace for all persons.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.