Alex Kohn
28 June 2012

Volunteers are employees/workers – new WHS/OH&S laws and responsibilities

Alex Kohn

Partner And Chairman

Tel: 02 9233 9036

Mob : 0421 315 168


Dispute Resolution


Charities and Not-For-Profits Dispute Resolution



Employment, Professional Conduct and Safety

Why do I need to know about the new national WHS laws

Volunteers such as canteen assistants, parent volunteers, P & F volunteers and event support personnel now fall within the definition of worker, in the same way employees are captured by that definition. The obligations of an employer or other Person Conducting a Business or Undertaking (PCBU) has therefore increased significantly and so too have the penalties for non-compliance.

The legislative changes

On 1 January 2012 national legislation titled the Work Health and Safety Act 2011(WHS Act) took effect in several states and territories including New South Wales, with further states and territories expected to follow. Some of the key differences with the new legislation include:

  • The reverse onus approach has been abolished, which previously required a defendant to prove the exercise of their obligations rather than a plaintiff having to prove the defendant’s breach of those obligations.
  • Mandatory ‘risk assessments’ have been removed, however they are likely to remain one of the most useful tools to ensure the safety of workers.
  • The exclusion of ‘Volunteer Association’ has been defined in such a restrictive manner that the exception will not be available to most organisations who would consider themselves, at first glance, to fall within that exclusion. 
  • Maximum penalties have increased to $3M and up to five years imprisonment and apply to officers within organisations who may not have needed to discharge obligations under the previous regime.

 Types of duties owed to workers including volunteers

A PCBU has the primary obligation to ensure the overall health and safety of workers.

In relation to the workplace, obligations include provision of a safe work environment, safe plant and structures and safe work systems including use, handling and storage practices for equipment and other substances.

In relation to the worker, obligations include adequate provision of welfare facilities such as rest and lunch areas; information; training; instruction; supervision; and safe entry, passage way and egress from the workplace.

In relation to the employer or other PCBU, obligations include to monitor work conditions and the health of workers as well as establishing and maintaining continued consultation about safety matters with workers and other relevant parties.

How to discharge those duties

The WHS Act provides that steps must be taken which are ‘reasonably practicable’ and matters relevant to those considerations include:

  • the likelihood of the hazard or risk occurring;
  • the potential degree of harm from any such occurrence;
  • knowledge regarding the hazard or risk and the steps that could be taken to reduce or eliminate that risk; and
  • the availability, suitability and cost of steps to reduce or eliminate that risk.

A popular misconception

Courts have regularly held that cost will not be the key factor in determining the reasonable steps to be taken unless the cost is grossly disproportionate to the risk. An expensive remedy to an unlikely event can still be required to properly discharge the legislative duties, particularly where the injury may be catastrophic in nature.

Further action

If your educational institution includes a level of volunteer involvement or assistance, whether it be from parents, students, past employees, family members etc. it would be important to become more familiar with the changes to WHS laws referred to in this article and set out more fully in the legislation.

Knowledge of these changing obligations will help your organisation to ensure that appropriate steps are being taken to firstly protect your workers and secondly to protect your legal liability.

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