Volunteers and health and safety law in Australia

Organisations which rely heavily on volunteers are warning they will have to have cut back on services because of changes to health and safety laws in Australia. Under the law changes, volunteers are now considered as workers.

Latest figures from the Australian Bureau of Statistics show a staggering 6.4 million people do unpaid work.

Some volunteers deliver meals to the sick and the elderly, others provide community support services such as home-based household care, while other volunteers donate their time to driving the elderly and infirm to appointments – mostly medical appointments – where public transport is not ordinarily available.

Even those volunteers who supervise scout camps or work as marshals at community events are in the firing line under the new laws.

What’s happened, you may ask?  What’s changed?

Well the Australian federal government has tried to reach an accord with all the states and reach a standard set of occupational health and safety (OHS) regulations and a standard OHS Act that stops each state from ‘doing its own thing’ and having OHS law that applies to all workers no matter what part of Australia they happen to be in. The jargon term is “Harmonisation”, harmonising the legislations between states. So far some states, like Western Australia, have refused to come to the party. Others, South Australia for example, are being more circumspect and refusing to commit until more clarification of the ‘volunteer conundrum’ is forthcoming. Others states, such as New South Wales and the Australian Capital Territory have already agreed.

As a result everyone is now exposed in a way that they have not been exposed in the past and the expectations on them now are to have the full resources around OHS that you would expect of a government department, mining companies, retail and department stores, etc.

Put simply, these new OHS laws redefine volunteers as workers for health and safety purposes, which means they now have a duty to do what is reasonably practicable to prevent injury.

Breaches to those laws can attract large fines with volunteers facing penalties of up to $300,000.

Lets take the scouting organisations by way of example. Scouts Australia has already warned its volunteers that if they do not follow their organisation's new procedures, they (Scouts Australia) may be fined.

What's always happened with OHS in terms of volunteers, it's the full application of common sense and that's really what drives the current situation. What the situation now is that of bureaucratic requirements in terms of red tape, form filling and so forth that just are endless.

In the case of the Scout Association they have said that all scout games are going to have to be reviewed. They're going to have to have safety procedures around those games, they're going to have to have documented them and have all the procedures in place.

The possible ramifications of these new laws are extensive and the volunteer committee that, for example, manages the local scout hall, are saying that they're not going to let people use the scout hall for parties anymore because the volunteers could be held liable if there's an incident at the party.

The new harmonised laws are creating an environment of complete confusion, not providing better protection mechanisms.

Previously, under OHS law, i.e. normal OHS law, people are held responsible for what they reasonably and practicably control!

These new laws for some strange reason have said, well you'll be held responsible for what is reasonable and practicable and they've dropped the word "control".

The big debate occurring in the legal profession is whether or not now people can be held liable for things over which they didn't have control.

OK!  I can see the need for organisations that involve themselves in a higher degree of ‘risk taking activities’, such as scouting organisations, having policies, procedures, safe operating procedures, risk assessments and checklists that are all aimed at bringing the chance of harm occurring from any of their activities to an absolute minimum risk.

And yes! – this will mean that the organisations like the scouting groups will have to devout a lot more time, energy and finances towards ensuring that their volunteers are properly trained and inducted to health and safety as a routine part of their activities.

But it’s the lower risk groups that will feel the greatest impact – those operating on a shoestring budget of (mostly) hard fought for funding from government and public grants that will feel the impact of these new OHS laws the most. Those where failure to comply with the new regulatory requirements will mean funding being cut-off. Those where many of its volunteers are well-minded, caring community members who, themselves, are not that far off reaching an age or state of health and well-being where they will be dependents upon the very services they now provide.

According to the head of Meals on Wheels in NSW, Leslie MacDonald, it is the charity organisations, not the volunteers, that will be exposed.

"The real concern that I have is that there have been no discussions with government at all at this stage, or no suggestion from government that they're going to cover the substantial additional cost that that's going to require," he said. "In terms of worker's compensation premiums but also in terms of the additional workload that's going to impose on the paid staff in terms of making sure that the legislative requirements are being met."

It is difficult to know yet what the extra costs will be.

There has been little time or chance to analyse in detail the additional administrative requirements. The best guess is that, talking in terms of the workers comp premium, a very substantial increase.

With no extra funding support from the Federal Government, charity organisations like Home and Community Care, Meals on Wheels, etc  will be forced to reduce their services. That’s going to mean a substantial reduction in the services that charities can provide. That seems fairly logical.

The Minister of Employment and Workplace Relations, Bill Shorten, released a statement saying safe workplaces will not be adversely affected by the changes and that his department wants to avoid any unnecessary administrative burdens on volunteering organisations. Reading between the lines, Mr Shorten has really said that charity organisations, like any other organisation using human services, are going to have to get their house in order and develop better management systems that satisfy the requirements of these new OHS laws.

The only people to be better off from all this will be the OHS Consultancy firms who will hit the market place trying to sell their ‘off-the-shelf’ OHS Management Systems, systems devised by the consultancy and not by the people actually delivering the volunteer care!

I'm not yet convinced that we've gone down the right path. Does this mean that the ladies who provide tea and sandwiches to emergency workers in times of disasters will need to be inducted into OHS requirements?