Have recently been doing some more training in the area of Occupational Health and Safety in relation to not for profit organisations. And as I was regarding through the course notes it occurred to me that what I was learning also applied to amateur theatre groups and other not for profit performing groups. In fact I wonder if many of the groups are aware of their obligations under the government act ” Occupational Health, Safety and Welfare Act 1986″. Now this information is based on the South Australian act and other states and countries need to check with their local authorities to see what is or is not covered.
Given that a lot of performance groups are manned by volunteers it is vital that we ensure the safety and welfare of these people whilst they are contributing to the group by their volunteer efforts. This also goes to those people and parents that help with the local dance school or callisthenics concert, they are also volunteering their time and effort and they also should be looked after.
One question that a lot of groups ask is does the Act apply to our volunteers? Well it does and the information can be found in section 4(3) of the Act which reads;
4(3) For the purpose of this Act, where a person, in connection with a trade or business carried on by the employer, performs work for an employer gratuitously, the person will be taken to be employed by the employer.
This means that where a person performs tasks for an employer free of charge in connection wityh the employer’s trade or business then the employer owes the volunteer the same duty of care as a paid employee. When you look closely at the Act it deems that volunteers to be employees of the employer. This would be the case for Dance School and Callisthenics schools and even schools would be covered by this if they use volunteers to help stage their productions. Now to be deemed as as an employee the organisation needs to employ a person, this can be in any position not just involved in the event or show.
Whether volunteers are ‘deemed’ as employees is thus a practical matter to be determined after a case-by-case assessment. If an organisation, being an employer, conducts commercial activities on a regular basis (buying or selling goods or services, conducting events which charge a fee) and its volunteers participate in that activity it may wish to seek legal advice about whether its volunteers are ‘deemed’ employees.
If we are to assume that the volunteers working for your group perform work for free in the normal course of business for the group, the next question to ask when determining whether the OHSW Act and Regulations apply to the organisation, is the group or organisation an employer?
To answer this question you need to figure out how the Act defines the term employer/ In section 4(3) the Act defines employers as follows:
employer means a person by whom an employee is employed under a contract of service.
and a Contract of Service is defined as:
A contract of service means –
(a) a contract under which one person is employed by another;
(b) a contract of apprenticeship;
(c) a contract, arrangement or understanding under which a person receives on-the-job training in a trade or vocation from another
This means, if your organisation employs anyone under a contract of service, then they are considered to be an employer under the OHSW Act, and all of the legislative duties under the OHSW Act and Regulations apply toward all staff, employees or volunteers.
Some groups pay an honorarium to volunteers, and it is my understanding that this does not make you an employee. This is not deemed as a contract of service. If a volunteer task or role is not intended to be a job and not treated like a job by either party, then it is unlikely to be treated as such legally.
If an organisation is concerned that its particular expense reimbursement arrangements and performance expectations for volunteers might be establishing an employment-like relationship it should seek independent legal advice.
Also the training of volunteers would also not generally constitute a contract of service. The training of volunteers is a very important part of managing events safely and doing so will not imply an employment relationship. Do not reduce or refuse training of volunteers on the basis that it might signify a contract of service. This could become a costly mistake.
If your organisation does employ someone under a contract of service then the OHSW Act will apply to all volunteers performing work in relation to the groups trade or business. You are then under obligation to follow the Act.
If you do not employ employ anyone under contract of service the the OHSW Act does not apply.
It is not intended that the OHSW Act should apply to all-volunteer organisations that conduct all-volunteer events. However this does not mean that the safety measures and standards described in the legislation should be ignored, only that the organisation and the volunteers who perform work for the organisation cannot be held liable for breaches of the Act or Regulations. There are still other duties that must be obeyed.
Please Note – The Act applies equally to all employers, whether your motives are for personal profit or for the good of others. Your duty is not reduced if your organisation is performing a community service, or some other public good. Regardless of how commendable your organisations activities are, this does diminish the importance of protecting the safety and welfare of the organisations volunteers or employees.
One way to ensure your organisation is fulfilling its duty is to ensure the management committee of the organisation is aware of the OHS duties and how they apply to the organisation and its activities. It is important for your organisation’s committee to understand the obligation to provide a safe, healthy workplace/event and to prevent injury and illness arising by identifying hazards, then assessing and controlling the risks.
When utilising the services of volunteers, consideration of the following should occur:
• considered selection of the right person for volunteer work;
• provision of an appropriate induction to volunteers;
• identification and management of all potential OHS hazards;
• provision of training to volunteers;
• provision of adequate supervision; and
• encouragement of safety and operational feedback by volunteers.
Further information can be obtained from SafeWork SA bookshop on the groundfloor, 100 Waymouth St, Adelaide or from the website. On the website as well there are a series of practical info sheets on Event Safety that might be helpful.
all the above is based on info from Safework, some copying and pasting involved and also the Act itself.