One of the key changes to health and safety regulation in Western Australia brought about by the Work Health and Safety Act (2020) WA (WHS Act), and consistent with WHS legislation in most Australian jurisdictions, are provisions relating to volunteers.
In short, the WHS Act gives volunteers the same status as workers, meaning that:
a PCBU owes volunteers the same duty as other workers; and
volunteers have the same obligations and liability as other workers.
The inclusion of volunteers under WHS legislation has caused a level of consternation, and concern in Western Australia about the impact on businesses and volunteering.
In October 2021, the Western Australian Department of Mines, Industry Regulation and Safety (DMIRS) released a media statement to provide reassurance that volunteer firefighters would not be “adversely affected by the incoming new workplace safety laws”.
DMIRS has also provided information on the responsibilities of volunteers and volunteer organisations at the workplace and a Guide – Work health and safety for volunteer organisations.
Despite what are apparently intended to be comforting comments such as:
“If the volunteers comply with the health and safety duties when carrying out work for the organisation, they cannot be fined or prosecuted under the WHS Act”
and
“… the new laws will not unduly impact farmers and their staff who attend fires as long as they continue to act with a duty of care and common sense for their own and others’ safety, something they have always done”,
the reality is the specific inclusion of volunteers in the WHS Act is a significant expansion of liability for organisations who rely on volunteers, and the volunteers themselves.
That is not a judgement about whether the full scope of WHS duties ought to extend to volunteers, it is simply an observation that it is disingenuous not to recognise the fundamental change in legal liability. If nothing else we should recognise that the term “volunteer” was not used at all in the Occupational Safety and Health Act 1984 (WA), and the inclusion of specific obligations in relation to volunteers in the WHS Act is an important change.
SafeWork NSW v Camden Council
The impact of the increased liability of organisations for volunteers can be seen in the recent decision, SafeWork NSW v Camden Council [2021] NSWDC 709 handed down on 21 December 2021.
In that case, the defendant was fined $750,000 out of a maximum of $1.5 million, following the death of a volunteer, a member of the local Men’s Shed, who was doing work laying irrigation pipe in a community park which was used by several community groups, including the Men’s Shed.
There were a range of factors identified in the case which were reasonably practical steps which could have been taken to manage the hazards associated with the work, including:
Ensure that an adequate risk assessment was conducted for the work.
Ensure adequate recruitment procedures for volunteers.
Ensure the activities of volunteer groups such as the Men's Shed were being monitored by the Council’s Work Health and Safety Officers.
Ensure there were clear lines of responsibility for WHS issues.
Provide adequate information, instruction and training to volunteers involved in the Men's Shed about the nature of the work they could do.
Provided adequate supervision of volunteers engaged in the Men's Shed with respect to the work they did.
It is also instructive to note that Council spent more than $650,000 on safety initiatives following the incident.
Liability of volunteers
While this decision provides some guidance about the obligations a PCBU owes to its volunteers, it is important to note that the WHS Act also creates obligations on volunteers.
Section 34(1) of the WHS Act provides, in effect, that a volunteer can commit an offence in their capacity as a worker (section 28) and as a person at a workplace (section 29).
The consequences of breaches in these circumstances are not insignificant.
If, for example a volunteer breaches their obligations as a worker under section 28 of the WHS Act, and that breach (or failure) causes the death of, or serious harm to, an individual they can be liable under a Category 1 offence which carries a term of imprisonment of five years.
Final thoughts
While I don’t think it is a misrepresentation to say there has been public commentary downplaying the potential liability of PCBU’s and volunteers under the WHS Act in the context of volunteering, the true position is that PCBUs owe the same duty to their volunteers as they do to their workers, and that volunteers face significant personal liability under the WHS Act if they fail to comply with their obligations.
PCBU’s that rely on volunteers, and volunteers themselves, need to invest some time and energy in understanding the impact of the WHS Act on volunteering activities and the steps they need to take to manage the potential liability, both organisational and individual.