What volunteer directors and board members need to know about workplace safety

Volunteer board members play an important role in the success of many Victorian organisations. Not-for-profits, incorporated associations, charities, community organisations and sporting clubs often rely on unpaid directors and committee members to provide leadership and governance.

But when it comes to occupational health and safety, an important question often arises:

What responsibilities do volunteer board members have, and can they be personally liable if something goes wrong?

The answer is not as simple as saying volunteer directors have either “no liability” or “the same liability as paid directors.”

Under Victoria’s Occupational Health and Safety Act 2004, volunteer officers have specific protection from prosecution under the officer liability provisions. However, that does not mean boards should ignore health and safety. Volunteer board members still have an important role in ensuring that their organisation understands, manages and monitors its OHS responsibilities.

Does the Victorian OHS Act apply to not-for-profit organisations?

Yes.

The Occupational Health and Safety Act 2004 (Vic) applies to a wide range of organisations, including companies, partnerships, unincorporated associations and not-for-profit organisations.

If an organisation employs workers, it has the same fundamental employer duties as any other Victorian employer. It must, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health.

Importantly, health includes both physical and psychological health under the Victorian OHS Act.

Depending on the organisation and its activities, OHS duties may also apply in relation to contractors, visitors, members of the public and people who manage or control workplaces.

Are volunteers considered employees?

Generally, no.

Under the Victorian OHS framework, a volunteer is not considered an employee simply because they perform work for an organisation. This remains the case even if the volunteer is reimbursed for reasonable out-of-pocket expenses.

However, where an organisation has employees, WorkSafe Victoria advises that the organisation should manage the health and safety of volunteers in a similar way to employees. This includes providing appropriate information, training, support and risk controls.

What is the role of a volunteer board member?

A board’s role is usually one of governance and leadership, rather than day-to-day safety management.

Volunteer directors and committee members should not necessarily be expected to personally conduct every risk assessment, investigate every incident or supervise every employee.

However, a well-functioning board should ensure that the organisation has appropriate systems in place to manage health and safety.

WorkSafe Victoria’s guidance for boards emphasises the importance of leadership and ensuring that health and safety is considered at the highest levels of an organisation. For volunteer boards and committees, this includes understanding the organisation’s OHS responsibilities, considering OHS implications when making decisions, ensuring people understand their responsibilities, and monitoring and reviewing OHS systems.

Can a volunteer board member be personally prosecuted for an OHS breach?

This is where the distinction between a volunteer officer and a paid officer becomes important.

Section 144 of the Victorian OHS Act contains provisions dealing with the liability of officers of bodies corporate. In certain circumstances, an officer may be personally guilty of an offence where an organisation breaches the OHS Act and the officer failed to take reasonable care.

However, WorkSafe Victoria confirms that:

An officer of a body corporate, partnership or unincorporated body or association who is a volunteer is exempt from prosecution under these officer liability provisions.

This means that a genuinely unpaid volunteer director or committee member has important statutory protection from prosecution for acts or omissions undertaken in their capacity as a volunteer officer.

Does this mean volunteer board members have no OHS responsibilities?

No.

A volunteer board cannot simply ignore workplace health and safety because its members are volunteers.

The organisation itself may still have significant legal duties and can be prosecuted for breaches of the OHS Act. A volunteer board also has an important leadership and governance role in ensuring that the organisation has appropriate systems to identify and manage risks.

WorkSafe’s guidance specifically recognises that volunteer board members should provide leadership on health and safety and ensure that:

• health and safety responsibilities are understood within the organisation;
• health and safety implications are considered when decisions are made;
• employees are consulted about matters affecting their health and safety;
• hazards and risks are appropriately managed;
• the organisation has suitable systems for reporting and responding to incidents and hazards; and
• OHS systems are monitored and reviewed.

What about workplace manslaughter?

Victoria’s workplace manslaughter provisions are contained in the Occupational Health and Safety Act 2004.

The legislation specifically excludes volunteers from the workplace manslaughter offence. WorkSafe states that the offence applies to negligent conduct by certain duty holders and officers, but not to a person who is a volunteer.

This does not mean that an organisation itself is protected from prosecution. An applicable organisation can still face very serious consequences where the legal requirements for workplace manslaughter are met.

Can a volunteer board member still have personal OHS duties?

Potentially, yes.

The protection available to a volunteer officer does not mean that every action undertaken by a person who happens to sit on a volunteer board is automatically exempt from all possible OHS duties.

For example, a person may have responsibilities because they are personally:

• an employer;
• self-employed;
• managing or controlling a workplace;
• managing or controlling a particular activity or risk; or
• undertaking another role that carries duties under the OHS Act.

The exact legal position will depend on the person’s role and what they actually do, rather than simply their title as a board member.

This is particularly relevant in smaller organisations, where a volunteer director may also perform operational work, manage staff, organise events or exercise direct control over workplaces or activities.

People who manage or control activities that create health and safety risks have responsibilities to eliminate or reduce those risks so far as is reasonably practicable.

What should volunteer boards do?

The best approach is not for volunteer directors to become workplace safety experts. Instead, boards should make sure that someone within the organisation has responsibility, authority, resources and competence to manage OHS effectively.

A practical volunteer board should consider the following questions.

1. Do we understand our organisation’s OHS responsibilities?

Board members should have a basic understanding of:

• who the organisation employs;
• who performs work for the organisation;
• the workplaces and activities the organisation controls;
• the main physical and psychosocial hazards associated with its activities; and
• the legal obligations that apply to the organisation.

2. Is OHS discussed at board level?

Health and safety should not only be discussed after an injury or serious incident.

Consider including OHS as a regular agenda item and receiving periodic reports on matters such as:

• incidents and near misses;
• significant hazards;
• workers’ compensation trends;
• psychosocial hazards;
• corrective actions;
• outstanding safety issues;
• training and competency; and
• significant changes to workplaces or activities.

3. Do we have a system for reporting hazards and incidents?

Employees and volunteers should know how to report safety concerns.

The board should also be confident that significant issues are investigated, appropriate corrective actions are implemented and recurring problems are not simply ignored.

Certain serious workplace incidents must also be notified to WorkSafe Victoria immediately, with additional written notification and record-keeping requirements.

4. Are we managing psychological health as well as physical safety?

Victorian OHS duties are not limited to slips, trips, machinery and manual handling.

The definition of health under the OHS Act includes psychological health. Organisations should therefore consider psychosocial hazards such as:

• excessive workloads;
• bullying or inappropriate workplace behaviour;
• poor support;
• exposure to traumatic events;
• role conflict;
• poor workplace relationships; and
• poorly managed organisational change.

As with physical hazards, the focus should be on identifying risks and taking reasonably practicable steps to eliminate or reduce them.

5. Are employees being consulted?

Consultation is a fundamental part of Victorian OHS law.

Employers must consult employees, so far as is reasonably practicable, when identifying hazards, assessing and controlling risks, proposing changes that may affect health and safety, and developing certain OHS procedures.

Employees often have the best understanding of the risks associated with their work, so consultation is not simply a legal requirement—it is also good safety management.

A simple board-level OHS checklist

Volunteer boards and committees should be able to answer yes to most of the following questions:

• Do we know our organisation’s key OHS obligations?
• Have we identified our major physical and psychosocial risks?
• Is someone clearly responsible for managing day-to-day OHS?
• Does that person have sufficient authority and resources?
• Do we receive regular information about significant OHS issues?
• Are hazards and incidents being reported and investigated?
• Are corrective actions tracked through to completion?
• Are employees consulted about health and safety?
• Do workers receive appropriate information, instruction, training and supervision?
• Do we periodically review whether our OHS systems are actually working?
• Do we consider health and safety when making significant organisational decisions?

If the answer to several of these questions is no, the board may need to take action—even if its members are volunteers and have protection from prosecution under the officer liability provisions.

The bottom line

Volunteer board members make an important contribution to Victorian community organisations, charities, sporting clubs and not-for-profits.

The Victorian OHS Act recognises this by providing volunteer officers with protection from prosecution under the officer liability provisions for acts or omissions undertaken in their capacity as volunteers.

However, volunteer status should never be treated as a reason to ignore workplace health and safety.

The organisation may still have substantial legal duties and may be prosecuted for safety breaches. Volunteer board members should provide leadership, understand the organisation’s key risks, ask appropriate questions and ensure that effective OHS systems are in place.

A good rule for any volunteer board is:

You don’t need to personally manage every safety issue—but you should be satisfied that the organisation has effective systems, competent people and appropriate resources to manage health and safety.

Need help with your organisation’s OHS systems?

For not-for-profit organisations, sporting clubs and small businesses, a practical OHS review can help identify gaps in your current systems and develop a realistic action plan. A great way to get this done at no cost is to sign up for the funded OHS Essentials program.

OHS & HR Management Systems Pty Ltd provides practical workplace safety advice, OHS management systems, risk assessments and training tailored to Victorian organisations.