Volunteers, Directors and Harmonised Work Health and Safety

In this latest update for the Not-for-Profit sector, we cover:

  • Volunteers, Directors and Harmonised WHS
  • The tumultuous ride of the ACNC (NOT starting 1 October)
  • ICAC review of corruption risks in government funding to NGOs
  • Gag clauses introduced for Queensland agencies, to be removed for federal government contracts

Volunteers, Directors and Harmonised Work Health and Safety

SafeWork Australia, as well as Workcover NSW, have issued information to clarify whether  volunteers are covered by the harmonised Work Health and Safety laws. To qualify as a volunteer, a person must not receive a wage, or salary, from the organisation, nor reimbursement for lost wages or salary. They can be reimbursed for meals, travel, and incidentals.

  • Volunteer Association: Volunteers are not covered by the new WHS legislation if they perform work for a “volunteer association”.  A “volunteer association” is an entity with no paid employees (for example, the local children’s football association where all administrators, coaches and referees are volunteers).
  •  Volunteers in other Organisations: Where an organisation does have at least one paid employee, then it is covered by the WHS legislation and the organisation is a “person conducting a business or undertaking” (PCBU). Where an organisation has at least one paid employee, then ALL volunteers, employees, contractors, sub-contractors and their employees are “workers” related to the PCBU and are covered by the new WHS legislation. The volunteers are protected by the Act, but they also have the same responsibilities as paid employees: to take reasonable care of their own or others’ health and safety, follow reasonable health and safety directions, and cooperate with reasonable health and safety policies or procedures. Failure to comply with these can lead to prosecution for both volunteers and paid workers.
  • Volunteer Directors of a PCBU: Where an organisation is not a Volunteer Association (so it is a PCBU) the volunteer directors have the same “due diligence” responsibilities as non-volunteer directors and officers, BUT they cannot be subject to criminal prosecution for breaching those due diligence requirements.  However, somewhat confusingly, volunteer directors of an organisation covered by the WHS laws can still be prosecuted if they breach any responsibilities as a “worker” (see above).
  • Paid Officer: A paid “officer” of the organisation, such as the CEO, can be prosecuted for breaching the due diligence obligations and the general “worker” requirements, even though the volunteer directors of the same organisation are exempt from criminal prosecution.

The ACNC – Not starting 1 October

The tumultuous ride for the Australian Charities and Not-for-Profits Commission continues, as the bill establishing the Commission passed the House of Representatives, but arrived in the Senate too late for it to be debated before parliament’s two week break.  In a joint media release from the Assistant Treasurer and the Minister for Social Inclusion, it was confirmed that the ACNC will not commence on 1 October, but at a date to be announced.  It is expected that the bill will pass the Senate following further amendments proposed by the Greens, and that the ACNC will commence some time during the next sitting of Parliament.

New Federal Privacy Legislation

For NFPs who are involved in fundraising in particular, watch out for changes to the National Privacy Principles (to be called the Australian Privacy Principles). This legislation is still languishing in the Senate.

Gag Clauses Introduced in Queensland and to be Removed in Federal Contracts

The Queensland government has begun introducing a provision in funding contracts which prevent recipient organisations from advocating change to State or Federal legislation, if they receive 50% or more of their funding from a Queensland government agency. The organisation is also prohibited from providing a link on its website to other websites which advocate for change. This is a move which has been condemned by the Queensland Law Society and peak NFPs.  The federal government meanwhile, has announced it will introduce legislation to prevent gag clauses being inserted into federal funding agreements.

Independent Commission Against Corruption Reviewing Corruption Risks in Government Funding of NFPs

In what appears to be a very quiet investigation, the NSW ICAC is conducting a review of corruption risks associated with government funding of NGOs.  It has issued a Consultation Paper which looks at contract management skills and abilities both within the public sector and in NFPs.  There is an even quieter invitation for submissions, possibly because this has the potential to recommend increased regulation of funding arrangements at a time when all governments have committed to reducing red tape. Submissions close 5 October.