The below provides information on when non-profit organisations and volunteers have duties under the Work Health and Safety Act 2011 (the WHS Act).
Non-for-profit organisations exist to serve community purposes and do not distribute their surplus funds to owners or shareholders, but instead use them to help pursue their goals. They include organisations for the promotion of art, culture, science, religion, education, medicine or charity.
In furthering their objectives, a not-for-profit organisation may carry on a business or engage in business activity and may employ paid workers as well as volunteers.
Not-for-profit organisations who employ workers are considered to be a person conducting a business or undertaking (PCBU) under the WHS Act. They will have a duty of care to ensure, so far as is reasonably practicable, the health and safety of their workers at work and that the health and safety of other people is not affected by the way in which the organisation conducts its business or undertaking.
However, the WHS Act does not apply to not-for-profit organisations that are ''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. A volunteer association is not regarded as a PCBU for the WHS Act.
An example of a volunteer association is a junior sports club where the office bearers are volunteers and fund-raising and other activities of the club are carried out by volunteers such as the parents. The organisation may be incorporated or unincorporated.
If the association or any of the volunteers of the organisation employ a person to carry out work for the association, the WHS Act will apply to the organisation. For example, if the association has an employee who does their accounts on a weekly basis, the WHS Act will apply to the organisation. However, if the association engages a contractor to audit their accounts or drive a bus on a day trip, the WHS Act will not apply to the organisation.
Volunteers perform a range of different activities in the community. This can include:
- undertaking voluntary work for a business as part of a work experience program
- undertaking voluntary work or activity for a not-for-profit association
- voluntarily serving as a director of a company
- voluntarily serving as an officer in an unincorporated association.
For the purposes of the WHS Act, a person is a volunteer if they undertake work for an organisation without being paid a wage or salary.
They may, however, be reimbursed for any out of pocket expenses they incur directly while carrying out the volunteer work. Out of pocket expenses do not include loss of wages or salary while carrying out the volunteer work.
Any payment over and above direct expenses would mean that the person was not a volunteer for purposes of the WHS Act.
Volunteers working for a PCBU or for a not-for-profit association which is a PCBU
Under the WHS Act, volunteers are workers if they carry out work in any capacity for a PCBU.
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. Volunteer workers can be prosecuted for failing to comply with their duties. Prosecutions against workers in the past have been rare and are most likely only to occur in relation to serious incidents where there is a high degree of recklessness or negligence.
Can volunteer 'officers' be prosecuted under the Work Health and Safety Act?
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.
Volunteers working for a not-for-profit association that is a volunteer association
Where an activity is being undertaken for a not-for-profit association that is a volunteer association excluded, the volunteer is not considered to be performing work. Thus it is not considered a worker for the purposes of the WHS Act.
Please note that volunteers (unpaid) are not considered 'workers' for workers' compensation purposes, as per the Workers' Compensation and Rehabilitation Act 2003. For more information on who is a worker for workers' compensation purposes, please see Who should I cover?