Roundtable held on implications of new Work Health and Safety laws

On January 17, The Australian published an article on the new WHS laws entitled ‘Rough ride for volunteers under new national occupational health and safety laws’. The article quoted Melbourne based OHS expert Ken Phillips saying the shift “will trigger a collapse in volunteerism”. Safe Work Australia recently published this media release:

Media release by Safe Work Australia

18 January 2012

Safe Work Australia Chair, Mr Tom Phillips AM, has expressed concern over recent media reports regarding volunteers and the new Work Health and Safety (WHS) laws.

Mr Phillips is concerned inaccurate and alarmist claims made about the new WHS laws could seriously discourage volunteers and potential volunteers from undertaking volunteer work.

The new WHS laws will not apply to every volunteering activity or organisation. They apply if a volunteer organisation employs staff as well as volunteers to carry out work for the organisation.

“This isn’t new – this was the case even in the old state schemes and it makes sense. In three states and territories Queensland, the Northern Territory and the ACT, occupational health and safety legislation (OHS) already specifically applied to volunteers – this hasn’t changed. In all the other jurisdictions, the protections afforded by OHS legislation also applied to volunteers at workplaces,” said Mr Phillips.

“The new WHS laws do not, for example apply to the local junior football club run entirely by volunteers or to any community group which does not have any employees,” said Mr Phillips.

For those volunteer organisations and volunteers which are covered, there is an overall duty on volunteers to take care in the workplace. However, the duty to ensure a safe workplace remains the primary duty of the employer or ‘person conducting a business or undertaking’ – not the volunteer. Importantly, there is unlikely to be a prosecution of a volunteer except in the most serious and exceptional of circumstances.

Volunteering Australia supports the national harmonisation of OHS laws. Volunteering Australia CEO, Cary Pedicini said “The harmonisation will mean a higher level of protection for volunteers applied consistently no matter where they volunteer. That is a good thing for volunteers. We will continue to work with Safe Work Australia to address any concerns that arise as we have done for the last twelve months.”

The new WHS laws ensure that volunteers receive the highest level of protection wherever they perform their work across Australia consistent with the protections provided to all workers.

Further information on volunteers and the new WHS laws are available from www.safeworkaustralia.gov.au.

*end*

There was also today in Melbourne a ’roundtable’ meeting with volunteer-involving organisations, for which the Office of Bill Shorten MP, Minister for Employment and Workplace Relations has published this media release: 

Media release/communique by Bill Shorten MP

20 January 2012

In cooperation with peak organisations that utilise volunteers and Not-For-Profits the Federal Government will develop a new resource kit on national workplace and safety laws as well as establishing a stakeholder working group to oversee measures to cut red tape.

This comes after a roundtable meeting in Melbourne today involving Workplace Relations Minister Bill Shorten MP, officials from Safe Work Australia and the Department of Employment, Education and Workplace Relations and senior representatives from a broad range of volunteer and community organisations (listed below) to discuss Work Health Safety (WHS) issues.

The roundtable agreed:

• That safety is just as important in workplaces involving volunteers as any other and that everyone has the right to return home safe;
• That the scope of a volunteer’s duty to act reasonably is largely as it was before the harmonised laws;
• That the application of penalties for extreme actions was based on state laws in existence before the harmonised laws;
• That social or domestic activities – including examples like foster care – will not be covered by the harmonised laws; and
• That ongoing work and cooperation to improve clarity of the harmonised law’s limited practical consequences for grassroots volunteers would be most welcome.

“The Government’s new national WHS laws codify existing common law to ensure volunteers undertake their activities in safety – and will not depart from current practice for volunteer organisations,” Mr Shorten said.

“The fact is nearly all volunteer organisations already have good WHS practices in place and won’t face any additional burdens whatsoever,” Mr Shorten said.

“The Government encourages people to continue volunteering and supporting their communities and will now provide even more clear information and guidance to volunteers who play such an important role in our communities.

“Our latest discussions and new cooperative efforts will improve clarity of responsibilities and address any lingering confusion about the impact of harmonised laws. It also builds on the excellent work already done by Safe Work Australia in providing information on the application of the new WHS laws to the volunteering sector.”

Today’s meeting decided to:

• Convene a working party of representatives of the Not-For-Profit sector, Volunteering Australia, key volunteer-based organisations, the Fair Work Ombudsman, Safe Work Australia, insurance and legal experts and others;
• Have the working party oversee the development a practical resource kit to help ‘cut through the red tape’ of working with volunteers;
• Develop a central resource kit and education support with key bodies like Volunteering Australia with easy to understand information on workplace and safety laws for volunteers and those organisations working with them;
• Safe Work Australia will work with the states and territories to develop interpretive guidelines that will clarify that the harmonised laws do not extend to exclusively domestic and social arrangements; and
• Safe Work Australia will set up a help-line and dedicated website, in coordination with the states and territories, to deal with queries from organsiations and their members on the application of the laws.

Mr Shorten said the new WHS laws ensure that volunteers receive the highest level of protection wherever they perform their work across Australia consistent with the protections provided to all workers.

He emphasised the laws do not apply to volunteer associations which do not employ anyone to carry out work for the association. The activities of such volunteer associations and their volunteers are automatically exempted from the new laws.

On behalf of attending organisations Volunteering Australia CEO Cary Pedicini said after the meeting that the initiatives will help volunteer organisations comply with workplace relations, safety and other relevant laws and reiterated their support for the new harmonised laws.

 *end*

FREQUENTLY ASKED QUESTIONS

PRODUCED BY SAFE WORK AUSTRALIA

1. Who is a volunteer?

You are a volunteer under the model work health and safety laws if you are not working for payment or reward (although you may receive payment for out-of-pocket expenses).

2. As a volunteer, do I need to comply with the model Work Health and Safety Act?

People who are ‘workers’ have duties under the Work Health and Safety (WHS) Act. As a volunteer worker, you only have duties if you carry out work for a ‘person conducting a business or undertaking’ (PCBU). If so, you have the same duties as ‘workers’ to take reasonable care for health and safety.

3. As a volunteer, am I a ‘worker’ under the model Work Health and Safety Act?

You are a worker under the model Work Health and Safety (WHS) Act if you carry out work for a person conducting a business or undertaking. Whether you carry out work will depend on the type of activities you perform. You are not a worker if you carry out volunteer work for a ‘volunteer association’ as the model WHS Act does not apply to these organisations.

4. As a volunteer, am I owed duties under the model Work Health and Safety Act?

Some volunteers carry out work in a voluntary capacity for companies or businesses. Others may carry out work for volunteer organisations that are run by volunteers for community purposes. You are owed health and safety duty under the model Work Health and Safety (WHS) Act if you carry out work for a ‘person conducting a business or undertaking’ (PCBU).

5. Do the model Work Health and Safety laws apply to my volunteer organisation?

A volunteer organisation owes duties to its volunteers under the model Work Health and Safety (WHS) Act, where it:

1. conducts a ‘business or undertaking’ (whether for profit or not), and

2. is not a ‘volunteer association’ as defined by the WHS Act.

6. What is a ‘volunteer association’?

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. A volunteer association is not regarded as a ‘person conducting a business or undertaking’ (PCBU). For more information on PCBUs see, Safe Work Australia’s Interpretive Guideline, ‘model Work Health and Safety Act, the meaning of ‘person conducting a business or undertaking’.

7. When is a volunteer organisation a person conducting a business or undertaking (PCBU)?

A volunteer organisation that employs someone to carry out work meets the definition of a ‘person conducting a business or undertaking’ (PCBU).

8. Can a volunteer be an ‘officer’?

Yes, a volunteer can be an ‘officer’. If you are an officer of a person conducting a business or undertaking (PCBU) and you are a volunteer, you must comply with your due diligence duties as an officer.

9. As a volunteer, can I be prosecuted under the model Work Health and Safety Act?

Volunteers who carry out work for persons conducting a business or undertaking (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 Work Health and Safety Act, workers, including volunteer workers, can be prosecuted for failing to comply with their duties.

10. If I am a volunteer officer, can I be prosecuted under the model Work Health and Safety Act?

No. A volunteer officer cannot be prosecuted for failing to comply with their officer duties under the Work Health and Safety 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.

11. Do volunteer organisations need to supply personal protective equipment to their volunteers?

Yes. If personal protective equipment (PPE) is being used to minimise health and safety risks, persons conducting a business or undertaking (PCBU) volunteer organisations must provide it to volunteers unless it has been provided by another PCBU. However, in many circumstances, volunteers might be encouraged or required to wear their own appropriate attire and footwear and be provided with PPE such as gloves and eye and ear protection.

12. Where can I get more information about the model Work Health and Safety Act?

More information about the model Work Health and Safety (WHS) Act can be obtained from Volunteering Australia and your state, territory or Commonwealth work health and safety regulator.