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When is a volunteer a volunteer worker, do volunteer workers have any responsibility for health and safety, what does it mean for a volunteer association to 'employ' a person, is a volunteer association a PCBU if it is run by volunteer workers?
A volunteer is only a volunteer worker when:
- the volunteer is doing work for a business who knows that they are doing work for them
- the volunteer does the work on an on-going and regular basis
- the work is an integral part of the business, and
- the work is not:
- participating in fundraising
- assisting with sports or recreation for an educational institute, sports club or recreation club
- assisting with activities for an educational institution outside its premises
- providing care for another person in the volunteer’s home (eg foster care).
A volunteer must meet all the above conditions to be regarded as a volunteer worker.
If a volunteer is working for a business on an on-going and regular basis, but the volunteer’s work is not integral to the work of the business or vice versa, they would not meet the definition of a volunteer worker. For example, volunteer marshals for an annual race, while integral to the event, would not be volunteer workers as they are not doing work for the organisation on a regular and on-going basis.
A volunteer is 'a person who is acting on a voluntary basis, whether or not the person receives out-of-pocket expenses'.
Yes. Volunteer workers have the same duties as other workers and must:
- take reasonable care of their own health and safety
- take reasonable care that what they do or don’t do doesn’t adversely affect the health and safety of others
- cooperate with any reasonable policies or procedures the business or undertaking has in place on how to work in a safe and healthy way, and
- comply with any reasonable instruction given by the business or undertaking so that they can comply with HSWA and the regulations.
The term means employing as an employee, as opposed to engaging as a contractor.
HSWA does not define ‘employ’ but it does define ‘employee’. That definition refers to the Employment Relations Act 2000(external link) and means ‘any person of any age employed by an employer to do any work for hire or reward under a contract of service’.
If a volunteer association (or any of its members) instead only ‘engages’ an individual to work for the association under a contract for service (such as a ‘contractor’) then it would still be a volunteer association and not a PCBU.
If an organisation falls within the definition of a volunteer association, then it is not a PCBU.
Whether the volunteers meet the test of a ‘volunteer worker’ or not is irrelevant. You can only have a volunteer worker if you are defined as a PCBU under HSWA.
Whether or not a sporting club owes a duty under HSWA depends on whether the club is a volunteer association. A volunteer association is defined in HSWA as a group of volunteers working together for one or more community purposes where none of the volunteers employs any person to carry out work for the volunteer association. Volunteer associations are not PCBUs and do not owe any duties under HSWA.
A sports club that does not meet the definition of a volunteer association is considered to be a PCBU and will owe a duty to ensure, so far as is reasonably practicable, that the health and safety of any workers or other persons is not put at risk from work carried out as part of the undertaking.