The issue of the impact of new OHS laws on volunteers appears to be getting some bad press, notwithstanding the changes to the OHS laws have been in the pipeline for some time. See for example: ‘Volunteer organisations warn of OHS burden’
I have written about the potential impact of the new laws on volunteers in the emergency services in the latest issue of the Australian Journal of Emergency Management.
Fear of volunteer liability is being horribly overstated. The new Act does include volunteers in the definition of ‘worker’ so that organisations that use volunteers must now take the same steps that they would take to take care of the health and safety of volunteers.
The Act does not impose strict liability- that is it is NOT the case that if someone gets hurt, someone is guilty. The primary obligation is the person or business conducting the undertaking so that is the organisation, not the individual. The obligation is to do what is reasonable in all the circumstances to protect health and safety.
The Act sets out the factors to be considered when determining what is reasonable and it is consistent with traditional risk assessment, how likely is it that something will happen, how bad will it be, what steps are there to reduce any risk and are they practical taking into account the task to be achieved. It may not be reasonable to ask an employee or volunteer to enter a burning building to see if there is anyone in there, but it may be if they are a volunteer fire fighter, trained to do so, equipped with PPE and supported by a sufficient number of colleagues.
The new Act does impose obligations upon volunteers. They have to take reasonable care of their own safety and that of others. They must also follow instructions in relation to safety. That is not unreasonable. We don’t want SES volunteers throwing damaged roof tiles to the ground onto people below – but the reality is that most volunteers do take reasonable care for their safety and that of others. If they don’t in circumstances that are less than sheer stupidity, the liability is likely to fall to the organisation for providing a lack of training and for not creating a safety culture.
Volunteers have been subject to OHS laws in the ACT, NT and Queensland for some time and there are no cases of volunteers being prosecuted. Such prosecutions are extremely unlikely.
Unfortunately the press appear to have decided scaring volunteers is good for ratings. The stories that I have read bear little link with the reality of the situation.
For more guidance on the application of the law to volunteers, Safe Work Australia has published a number of guides which you can find here (thank you Greg, from WA for referring me to this page).