Volunteers and the WHS Act

The WHS Act and volunteer associations

A distinction is made between volunteer associations for community purposes  with no workers and charitable and community service organisations which do volunteer work and also have workers.

(1) Volunteer associations for community purposes which rely solely on volunteers

The WHS Act provides that an association does not conduct a business or undertaking if it is an entirely volunteer association for community purposes with no employees. It would not have the obligations of a person in control of a business and undertaking.

A volunteer is defined by the WHS Act as

“a person who is acting on a voluntary basis (irrespective of whether the person receives out of pocket expenses.)”

To be exempt from the WHS Act duties of a PCBU a club, charity or other community organisation must rely entirely on volunteers and not employ anyone and be volunteering together for community purposes.

An example of a volunteer association not intended to be regarded as a PCBU would be a swimming club at the local primary school which is run by the parents and no other person is employed by the club.

A group of volunteers that employs someone to carry out work is not a volunteer association, and is a PCBU.

(2) Charitable and community service organisations which do volunteer work

A charitable or community service organisation which engages workers – even one worker - is considered to be a PCBU.

A charitable or community service organisation may have volunteer boards or management committees. This  organisation will be a PCBU if it employs or engages (through contractors, for example)  workers and will have all the PBCU obligations to those workers.

Can a volunteer officer be prosecuted?

If you are an volunteer officer in a charitable or community service organisation that is a PCBU (ie has employees) you must comply with the WHS Act health and safety duties, but you cannot be prosecuted for an offence as an officer.

You may be held liable, however, if you do not comply with your duties as a ‘worker’ or ‘other’ person .

Regulators (and Health and Safety representatives) can enforce the volunteer officer duties by issuing an improvement notice.

Does a volunteer worker have duties under the Work Health Safety Act?

Yes. The definition of a 'worker' includes a volunteer. Therefore, volunteer workers have the duty of workers under the new laws, for example, to take reasonable care for their own health and safety, comply with reasonable health and safety instructions etc.

Other PCBUs and volunteer associations

An association may be a volunteer association for the purposes of the WHS Act. However, other PCBUs have obligations to these associations as "other persons” affected by their operations.

For example, a retailer may have a volunteer association  hold fund raising events on their premises. As a PCBU the retailer has to comply with the obligations set out in s 20 of the WHS Act  – the duty of a PCBU involved in the  management or control of workplaces.

As volunteers are included in the WHS Act definition of “worker” a PCBU may also have a duty to the volunteers as “workers”.

For example, a sailing club which is incorporated and operates on a for profit basis and employs workers is a PCBU.  Club members  who are not club employees may volunteer to clean boats and the jetty for the club. In these circumstances the sailing club would have duties as a PCBU to the volunteers as ‘workers’.