OHS for VISITORS, VOLUNTEERS & VOLUNTEER ORGANISATIONS

Since the introduction of the new Work Health and Safety (WHS) laws, there has
been some confusion about the responsibilities of visitors and volunteers.

This summary may help to clear up any misunderstanding or confusion in relation to
visitors and volunteers.

Most importantly, a PCBU whose activities include the management or control
of workplaces, fixtures, fittings and plant must ensure, so far as is reasonably
practicable, that the workplace and anything arising out of it are without risks to
health and safety

VISITORS

Duties under the WHS Act now include ‘Others’ – a visitor to your workplace falls
under this category.

Visitors, clients, customers, friends and family at a workplace all have work health
and safety (WHS) responsibilities and must:

Comply with any reasonable work health and safety instructions at the
workplace

Take reasonable care to not put themselves or others at risk.

A visitor to your business’ workplace must take reasonable care for their own health
and safety at the workplace and take reasonable care that their conduct does not
adversely affect the health and safety of others at the workplace.

Visitors must comply, so far as they reasonably are able to, with any reasonable
instructions given by your business.

Visitors can be prosecuted for a breach of this duty.

Duty owed to visitors

It is important to remember that as a PCBU, you have a duty to anyone who is at
your place of business – If they’re on your premises – YOU have safety obligations.
No ifs or buts.

Just like your workers, you have to ensure that so far as is reasonably practicable,
that the workplace and anything arising out of it are without risks to health and
safety.

VOLUNTEERS AND VOLUNTEER ASSOCIATIONS

Not all volunteering activities and organisations are subject to the new WHS laws.
Only volunteer organisations that employ paid staff are subject to the work health
and safety laws. Organisations that are ‘volunteer associations’ are not covered by
the new work health and safety laws.

If you are a volunteer, or the association you manage includes volunteers, you
should be aware of the following:

Volunteers

A volunteer means a person who is acting on a voluntary basis, irrespective of
whether the person receives payment for out-of-pocket expenses. Payments for
direct out of pocket expenses, such as travel, meals and incidentals, incurred directly
when carrying out volunteer work are not regarded as wages or salary.

However, payments for carrying out volunteer work would constitute a wage or
salary and mean that the person is not a volunteer.

Volunteers who carry out work for PCBUs are required to take reasonable care for
their own health and safety and not to create risks to others. Like any other duty
holders who do not comply with their duties under the WHS Act, workers, including
volunteer workers, can be prosecuted for failing to comply with their duties.

As a volunteer you have the same duties as ‘workers’ to take reasonable care for
health and safety.

Duty owed to volunteers

It is important to remember that volunteers are owed health and safety duties under
the WHS Act if they carry out work for a PCBU. Therefore if your business is a PCBU
that utilises volunteers, it will owe the same duty to volunteer workers as it does to
paid workers.

Workers Compensation and Insurance for Volunteers

The WHS Act does not address workers’ compensation for any workers, volunteers
or otherwise. Workers’ Compensation is regulated by separate Commonwealth, state
and territory legislation. Just because you’re a ‘worker’ for the purposes of the WHS
laws does not mean you’re a ‘worker’ for workers’ compensation laws.

The WHS legislation does not require volunteers to take out their own personal
accident or public liability insurance. It is the duty of the volunteer organisation (in
essence the PCBU) to obtain or retain such insurance for volunteers.

Volunteer Directors and Officers of a PCBU

A volunteer who is an officer of a PCBU must exercise due diligence which means
taking reasonable steps to ensure the PCBU is complying with its duties.

For example, a volunteer officer serving on the board of a PCBU such as a not for
profit organisation is considered an officer of that organisation. As an officer, they
must exercise due diligence to ensure the organisation complies with its work health
and safety duties.

A volunteer officer cannot be prosecuted for failing to comply with their officer duties
under the WHS Act. This immunity from prosecution is designed to ensure that
voluntary participation at the officer level is not discouraged.

A volunteer officer can however, be prosecuted in their capacity as a worker if they
fail to meet their duties as a worker.

Volunteer Associations

A volunteer association is a group of volunteers, working together for one or
more community purposes, that has no employees. It may be an incorporated or
unincorporated association.

Volunteer associations without paid workers do not have WHS duties for their
volunteers under the WHS Act as they are not considered a PCBU. For example,
a local sporting association that coaches or referees a junior sports match on a
Saturday morning does not have WHS duties if it does not employ the coaches or
referees.

Volunteer associations are excluded from the definition of a PCBU for the purposes
of the Act. Because of that fact, there cannot be any ‘officer’ (as defined under the
new laws) as there is no PCBU. So if a person holds a voluntary position in which he
or she leads a volunteer association, he or she will not be an ‘officer’ under the WHS
Act.

If the association, or one of its volunteers, employs someone then the association
will not be a volunteer association for the purpose of the exemption. Rather, the
association will be a PCBU and have duties of care imposed on it.

Emergency Services Organisations

Emergency service organisations previously owed general duties to their
workers and others under the former OH&S legislation. The new WHS laws
do not alter those duties. The ability of emergency services to respond to
incidents will not be affected as long as they continue to ensure, so far as is
reasonably practicable, the health and safety of their workers and others.

The primary health and safety duty under the new WHS laws is placed on
PCBUs. Emergency service organisations are PCBUs. Therefore emergency
services have a duty to ensure, so far as is reasonably practicable, the health
and safety of their workers and others.

Under the new WHS laws, volunteer emergency service workers who carry
out work for a PCBU are ‘workers’. This means they have the same duties as
paid workers. It also means they have a duty to exercise reasonable care in
carrying out their work.

Further Information

Safe Work Australia have produced a Volunteer Assistance Package to assist
volunteers, volunteer associations and PCBU’s in understanding duties owed to and
by volunteers.

The package can be downloaded here: http://www.safeworkaustralia.gov.au/
Legislation/volunteers/Pages/Volunteers.aspx

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