Thinking | 23 May 2022
Volunteer associations under the WA WHS Act – good intentions but beware
By Nicholas Beech
According to the Statement of Regulatory Intent recently published by WorkSafe, Western Australia’s Work Health and Safety Act 2020 (WHS Act), is not intended to, and is not expected to, adversely affect volunteers or to deter anyone from becoming a volunteer.
Following on from National Volunteer Week, we examine the special rules that apply to ‘volunteer associations’ under the WHS Act, which are an exclusive category of volunteer organisations.
There are clear and well-intentioned advantages to being classified as a volunteer association. However, the application of duties under the WHS Act to a volunteer association can significantly change in circumstances that are less clear and which may result in unintended consequences.
The concept of a volunteer association
A volunteer association is defined in the WHS Act as a ‘group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association’.
There are three key elements of this definition:
- Group of volunteers – each member of the group of volunteers must be a person acting on a voluntary basis. This means they can receive payments for out-of-pocket expenses, such as travel and meals, but must not be paid for the work they do or receive other payments that constitute a wage or salary.
- Community purpose – the work being done by the group of volunteers needs to be for one or more community purposes. The term ‘community purposes’ is not defined in the WHS Act but is intended to cover things such as: philanthropic or benevolent purposes, including the promotion of art, culture, science, religion, education, medicine or charity; and sporting or recreational purposes, including the benefiting of sporting or recreational clubs or associations. It is not clear whether the work being done must only be for a community purpose and whether any work done for a non-community purpose would exclude the group from being considered a volunteer association.
- No employment – no member alone or jointly with other members can employ any person to carry out work for the association.
If these three elements are present, then the volunteer association is expressly excluded from being captured as a person conducting a business or undertaking (PCBU) and will not owe the duties owed by PCBUs under the WHS Act.
When the exclusion does not apply
Although the absence of any of these elements can negate the exclusion, perhaps the most likely to arise and most controversial element involves the employment of a person to carry out work for a volunteer association.
For many volunteer organisations, the reality is that there are diminishing numbers of volunteers, capacity and input and increasing demands of administrative operational tasks, regulatory compliance and responsibilities requiring many organisations to get an outside person or persons to undertake those targeted, specialised or specific tasks.
As soon as a volunteer association, or any member, employs a person to carry out work for it, the association:
- will be captured as a person conducting a business, or more probably an undertaking if not being conducted for profit; and
- will owe duties as a PCBU to workers.
The employment is not limited to full-time work and will include any person employed casually or part-time, for any number of hours and at any time.
An employee is someone who performs work under a contract of service, is typically subject to a high level of control by the employer, does not perform work for others or provide their own tools and equipment and has income tax deducted from remuneration paid to them. An employment arrangement can exist without a high level of formality or detailed documentation. Some typical circumstances where a person may be employed by a volunteer association include bar or restaurant staff, or shop manager.
The somewhat arbitrary but significant consequence of employing a person was sought to be partially alleviated in New Zealand, whose Health and Safety at Work Act 2015 (NZ HSW Act) is largely based on Australia’s model Work Health and Safety Act. The proposal was to amend the NZ HSW Act to allow volunteer associations to employ people to do work for a limited amount of time each week, without negating the exclusion.
The amendment was described as a simple, reasonable and pragmatic change that would permit a volunteer association, which cannot obtain volunteer services to keep the association viable, the option to employ a person to perform those services for no more than 100 hours per week. Ultimately, the amendments were not passed principally because it was considered they would create a class of workers who were not owed the same duty of care as all other workers.
Importantly, a volunteer association does not employ a person to carry out work for it if it engages an independent contractor. Unlike an employee, an independent contractor works under a contract for service, has authority to exercise control over how, where and when work will be performed, can be said to be running an independent enterprise and may provide their services to others.
As set out in our previous article, it is important that well-drafted contracts are in place with any worker engaged as an independent contractor. Some typical circumstances where an independent contractor might be engaged by a volunteer association include an accountant to audit the association’s accounts once a year, or a bus driver to drive members of the association to an event.
What duty is owed by a volunteer organisation PCBU to workers?
If a volunteer association employs a person and is captured as a PCBU (volunteer association PCBU), the employed person and each of its volunteers will be a worker under the broad definition in the WHS Act.
A volunteer organisation PCBU, like all other PCBUs, must ensure, so far as is reasonably practicable, the health and safety of:
- workers engaged, or caused to be engaged, by the PCBU; and
- workers whose activities in carrying out work are influenced or directed by the PCBU
while the workers are at work in the business or undertaking.
Not all workers of a voluntary organisation PCBU will necessarily be captured under the scope of this duty. The person employed by the organisation to carry out work for it will most likely be but some of the ‘volunteer’ workers may not. Some factors to consider in this regard are as follows:
- the term ‘work’ is not defined in the WHS Act but covers a wide variety of activities. An activity is likely to be work if it involves physical or mental effort by a worker or the application of particular skills for the benefit of another person, or is part of an ongoing process or project. Work does not include activities of a purely domestic, recreational or social nature.
- a PCBU that is aware of, and has some control over, the work to be done by a worker is likely to have influence or be providing direction over the carrying out of those activities. There does not have to be any agreement in writing, but the arrangement might be indicated by factors such as providing the worker with instruction, equipment, training or assistance, or controlling or supervising the work.
What liability does a volunteer organisation PCBU face under the WHS Act?
The way in which the volunteer organisation is structured will impact whether the PCBU faces potential liability under the WHS Act.
If the volunteer organisation PCBU:
- is an incorporated association, the association itself is considered to be a separate person and can be found guilty of breaches under the WHS Act.
- is an unincorporated association, the association itself cannot commit an offence under the WHS Act, although it still owes the duties of a PCBU, as described above. Importantly, a member of the unincorporated association may be liable for a failure to comply with any duty owed as a worker or as a person at a workplace to take reasonable care for themselves and the health and safety of other persons.
What should volunteer associations do?
A volunteer association cannot and should not ignore the health and safety of the volunteers that help it achieve its goals. While the WHS Act is largely not designed to bring volunteer associations into its regulatory framework, there are particular rules and enforcement procedures which can lead to that outcome when employment relationships are created.
When a volunteer association needs some outside help to ensure the continuation of its essential work and good governance, it should:
- explore the option of engaging a contractor to undertake such tasks or roles so as to not inadvertently bring the association within the somewhat arbitrary and complex application of the WHS Act. As set out above, is important that well-drafted contracts are in place with any worker engaged as an independent contractor;
- take steps to understand and implement the specific duties and obligations under the WHS Act in the case where it is necessary to employ a person to assist.
In line with the positive and realistic themes expressed in the Statement of Regulatory Intent regarding volunteers, and in light of the issues that have arisen in New Zealand, many voluntary organisations will welcome the regulator exhibiting a supportive and educative approach to the special category of volunteer associations under the WHS Act.
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