This question comes from a correspondent who is a volunteer with a number of emergency services including the NSW Volunteer Rescue Association (VRA). My correspondent question arose from a multi-agency response where he perceived that the state agencies (police, RFS, SES) were being better ‘looked after’ than VRA volunteers. He says:
My question is regarding Workplace Health and Safety. As I understand it, all volunteers in NSW are considered to be employees of their volunteer organisation, and conversely, the organisation is the employer for WHS purposes.
It is quite simple to imply that the SES and RFs volunteers are “employees” of the State Government. What is not so clear, is the question of who is the employer of a “VRA” volunteer.
At face value, a VRA member is in fact a member of an individual autonomous squad, such as Bushwalkers Wilderness Rescue Squad, Cave Rescue Squad, WICEN, CREST, and so on. Each squad exists in its own right as an incorporated association. The squad could, theoretically, exist without being affiliated to the VRA. The so called Volunteer Rescue Association is in fact an “umbrella” body with a similar relationship say to a Union and the Australian Council of Trade Unions.
However, with VRA members being members of an individual squad, could it not be seen that the volunteer’s employer would be that individual squad. If so, that would make the individual squad responsible, inter alia, for the members WHS requirements. If it did, this may be a serious issue, as no VRA Squad is funded in any way, be it government, or donation sourced, (even from the actual VRA body) to take on the full financial implications of being an employer for WHS purposes.
The first point to make is that I can access details about the VRA from their website but not specific details. I have to accept my correspondent’s analysis of the structure.
The Work Health and Safety Act 2011 (NSW) says that, for the purpose of the Act the term ‘worker’ includes a ‘volunteer’ (s 7). It follows that a Person Conducting a Business or Undertaking (a PCBU) must take the same care of their volunteers as they do of their employees. The concept of a PCBU does not include a volunteer association; which is (at s 5):
… a group of volunteers working together for one or more community purposes where none of the volunteers , whether alone or jointly with any other volunteers , employs any person to carry out work for the volunteer association.
If a local squad has no employees but, rather, is made up only of volunteers then the squad, even if it is incorporated, is not a PCBU.
I do not know if the VRA employs anyone. If it does not, if there are no employees, they it is not a PCBU and the Work Health and Safety Act 2011 (NSW) has no application. I will assume, for the sake of the argument that at least one of the positions on the organisation chart is an employed position.
The VRA itself says there are ‘3,700 members’ so it assumes that all members of VRA rescue squads are members of the VRA (not that the squads are members, in which case it would have 58 members). If this analysis is correct the VRA is a PCBU and the 3700 members of the various rescue squads are volunteers ‘engaged by’ or people ‘whose activities in carrying out [their volunteer] work are influenced or directed by the’ VRA (s 19). As the PCBU the VRA must ‘… ensure, so far as is reasonably practicable, the health and safety of’ workers (including volunteers). (This consideration of ‘reasonably practical’ varies from the old OHS Act that required an employer to ‘ensure’ work place health and safety). What is reasonably practicable requires consideration of:
… all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
So that requires risk management. It does not require a guarantee of safety but it does require identification of risk and appropriate thought to how to manage that risk taking into account all the circumstances including the task to be achieved (it is probably ‘reasonable’ to ask VRA volunteers to accept a level of risk in order to save a life that you would not ask volunteers at a community shop to accept). One way to manage that risk is by policy and training and vesting responsibility in local squad leaders to implement that policy. A volunteer in the VRA is required (ss 28 and 34) to:
(a) take reasonable care for his or her own health and safety, and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
If a risk is such that it cannot be managed with the resources available, whether to a squad or the state headquarters, that is the time that the VRA may have to decline the particular tasking or seek assistance from the other emergency services.