After much anticipation, the Health and Safety at Work Act 2015 (Act) and Regulations relating to worker engagement, participation and representation comes into force on 4 April 2016. How these duties are addressed depends on the health and safety factors and needs of individual entities. However, when it comes to volunteer associations, or entities which use volunteers, some of the requirements under the Act are less stringent.
PCBU(s) and volunteers
By now, most will be familiar with the new concept of a “person conducting a business or undertaking” (PCBU). PCBU is defined widely to mean a person conducting a business or undertaking alone or with others, and whether or not it is conducted for profit or gain. The concept is intended to capture all types of modern working arrangements, businesses or business-like activities, and to cover all relationships between those in control and those who are affected by that control.
A PCBU does not include a “volunteer association”. A volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers employ any person to carry out work for the volunteer association. Because a volunteer association is not a PCBU, the Act does not apply. However, an entity whose workforce is composed of both paid workers and unpaid volunteers is a PCBU and will attract all the duties imposed on PCBUs. For more information on the duties under the Act see our 28 August 2015 newsletter. The primary duty of care for a PCBU is to ensure “so far as is reasonably practicable” the health and safety of workers:
who work for the PCBU, while the workers are at work in the business or undertaking, and
whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work.
Worker engagement, participation and representation under Part 3
Part 3 of the Act requires PCBUs to engage with workers on matters relating to health and safety, implement worker participation practices and facilitate elections of health and safety representatives or committees. The obligation to initiate elections of health and safety representatives and establish a health and safety committee only arises if workers request such representation, or PCBUs may do so on their own initiative.
“Worker” is very widely defined in the Act to include a range of possible work situations including employees, contractors, trainees and volunteer workers. “Volunteer workers” are workers who carry out work for a PCBU:
with the knowledge or consent of the PCBU,
on an on-going or regular basis, and
that is an integral part of the PCBU’s business or undertaking.
Volunteer workers are owed the same duties as paid workers and must comply with their own duties as workers. The only exception to this is that section 14 states that “nothing in Part 3 applies to a volunteer worker”. This means that PCBUs are not required under the Act to engage with volunteer workers on health and safety matters or provide health and safety representatives for volunteers.
The definition of volunteer workers excludes more casual type volunteering such as fund-raising and assisting with sports, recreational or educational activities. These types of volunteers are not considered workers for the purposes of the Act. However, PCBUs must still ensure, so far as is reasonably practicable, that their health and safety is not put at risk from work carried out for the PCBU.
Depending on the composition of the volunteer workforce, there is a possibility that some volunteers also fit into other categories of the definition of worker, for example student volunteers may also be “a person gaining work experience”. Where volunteers potentially fall within multiple categories, the prudent approach is to assume the section 14 exclusion does not apply and treat them as workers in relation to Part 3 of the Act.
Sections 62 and 66 of Part 3 (which relate to election of health and safety representatives and committees), allow PCBUs to refuse to initiate elections of health and safety representatives or establish health and safety committees if their work is carried out by fewer than 20 workers and not in a high-risk sector or industry. However, since nothing in Part 3 applies to a volunteer worker, only non-volunteer workers (including volunteers who fall within multiple categories of the definition of worker) must be taken into account for the purposes of determining the number of workers under sections 62 and 66.
Nothing in the Act prohibits PCBUs from engaging with workers beyond the scope of the Part 3 requirements. PCBUs may choose to include volunteers in their worker engagement, participation and representation practices. This approach removes any risk where a PCBU is unsure of the categorisation of a volunteer as a worker. A practical approach to this could be for a PCBU with volunteer workers to determine separate work groups consisting of the paid workers on the one hand, and volunteer workers on the other. Worker engagement, participation and requests for representation could then be dealt with as appropriate for each work group.
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.