Health and Safety Issues and Not-for-Profits
There is a world of difference between operating an underground coal mine and governing a not-for-profit community organisation, but the two are now connected, even if that may not be immediately obvious. The Health and Safety at Work Act 2015 was passed in large part because of the 2010 Pike River Mine disaster, and this Act also has implications for community organisations. Not-for-profit organisations need to consider whether and, if so, what parts of their activities may be covered by the Act, and just as a “she’ll be right” approach to health and safety is not appropriate in for-profit commerce, neither is it appropriate in a not-for-profit’s activities. While the statute does not always apply to community organisations, well-governed not-for-profits should always comply with best health and safety practices.
Don’t overreact or panic!
The Minister for Workplace Relations and Safety responded to questions about health and safety in Parliament on 30 March 2016 as follows:
Dr JIAN YANG (National) to the Minister for Workplace Relations and Safety: What reports has he received on reactions to the upcoming health and safety legislation changes?
Hon MICHAEL WOODHOUSE (Minister for Workplace Relations and Safety): The new health and safety law coming into force next Monday emphasises that everyone in the workplace is responsible for health and safety, because all workers deserve to go home safely every day. Unfortunately, I have received reports that kids should be banned from climbing trees at school because of this new law. This is patently ludicrous and incorrect. All playground and outdoor education activities possible today will still be possible next week—nothing changes. It is disappointing to see that that sort of fearmongering is being generated about the changes.
Dr Jian Yang: Should sports clubs and volunteer organisations be worried about the upcoming changes?
Hon MICHAEL WOODHOUSE: In a word, no. Another myth being perpetuated is that sports clubs, voluntary associations, and the like will be wrapped in red tape, resulting in people withdrawing from volunteering or from holding sports events. Again, this is nonsense. The Act adopts exactly the same legal framework that exists in the current law. The Government was clear that the current framework for voluntary associations and sports clubs was managing risk adequately, and transferred it into the new regime. Business should be alert to the new law when it comes into effect, but there is no need for the overreaction on things like tree climbing.
WorkSafe Chief Executive Gordon MacDonald in a statement encouraged people to keep calm and safe, saying that “If a claim about the impact of the new law sounds far-fetched – then it almost certainly is,” and that “Some people do not understand the law, are being given very dodgy advice or are being wilfully ignorant of its requirements.” He says that, “rather than the new law focusing on petty issues, it tackles significant areas where there is a need for improvement to help keep Kiwi workers health and safe.”
“Volunteer associations” under the Act
It is clear from section 17(1)(a)(ii) of the Act that “a volunteer association” is not a person conducting a business or undertaking or PCBU, and for the purposes of section 17 a “volunteer association means a group of volunteers (whether incorporated or unincorporated) working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association” (section 17(2)). However, it is clear from this definition that if a voluntary association “employs any person to carry out work for the volunteer association” then it will be a PCBU (see the question below – “What does it mean for a volunteer association to ’employ’ a person?”). According to a MBIE website page (http://www.mbie.govt.nz/info-services/employment-skills/workplace-health-and-safety-reform/document-and-image-library/summary-doc-volunteers-3rd-reading.pdf), the Health and Safety at Work Act 2015 recognises “. . . that volunteers contribute greatly to New Zealand communities and will ensure the new law will not negatively affect volunteering.” The same website gives answers to common questions (the relevant sections are added in square brackets):
Is your organisation a Person Conducting a Business or Undertaking?
Under the Act, a Person Conducting a Business or Undertaking (PCBU) has the primary duty to ensure the health and safety of its workers and others, so far as is reasonably practicable [section 36].
A purely volunteer organisation where volunteers work together for community purposes and which does not have any employees is known as a volunteer association under the Act [section 17].
A volunteer association is not a PCBU so the Act will not apply to it [section 17].
A volunteer organisation which has one or more employees is a PCBU [section 17(2)] and will have the same duties as a PCBU to ensure, so far as reasonably practicable, the health and safety of its workers and others [section 36]. There are some exclusions to this, depending on whether the PCBU has casual volunteers or volunteer workers. … What the volunteer organisation will have to do is what is reasonably practicable for it to do, and what is within its influence and control [sections 30 and 33].
If your organisation is a PCBU, does it have casual volunteers or volunteer workers?
Where volunteers carry out work for a PCBU, the Act distinguishes between casual volunteers and volunteer workers. Volunteer workers are people who regularly work for a PCBU with its knowledge and consent on an ongoing basis and are integral to the PCBU’s operations [section 19(3)(a)] (with some specific exclusions for certain voluntary work – see below). …
PCBUs will owe a duty to ensure, so far as reasonably practicable, the health and safety of volunteer workers (as if they were any other worker) [primarily sections 19(3)(a), 22, 30, 36, 37, and 38]. This ensures that these volunteers are afforded the protection of having the appropriate training, instruction or supervision needed to undertake their work safely – just like any other worker.
Are your volunteers doing certain activities which means they are excluded from the “volunteer worker” definition under the Act?
People volunteering for the following activities will not be volunteer workers under the new law [section 19(3)(b)]:
- Participation in a fundraising activity
- Assistance with sports or recreation for an educational institute, sports or recreation club
- Assistance with activities for an educational institution outside the premises of the educational institution
- Providing care for another person in the volunteer’s home.
However, casual volunteers and volunteers doing these activities are not “volunteer workers” for the purposes of the Act, their health and safety will still be covered by the PCBU’s duty to other persons affected by the work of the business or undertaking [primarily sections 19(3)(a), 22, 30, 36, 37, and 38].
Further questions about volunteers are answered on another MBIE website page (http://www.business.govt.nz/worksafe/hswa/mythbusting/volunteers), including:
Q. What does it mean for a volunteer association to ’employ’ a person?
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 [section 16] 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 (i.e. a ‘contractor’), then it would still be a volunteer association and not a PCBU.
Q. Is a volunteer association a PCBU if it is run by volunteer workers?
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.
Conclusion
While the Health and Safety at Work Act 2015 may not treat a voluntary association’s voluntary workers as employees, they still have duties to them under the Act if the association is a PCBU:
- Their health and safety will still be covered by a voluntary association PCBU’s duty to other persons affected by the work of the business or undertaking (see sections 19(3)(a), 22, 30, 36, 37, and 38), and
- A voluntary association PCBU owes a duty to ensure, so far as reasonably practicable, the health and safety of volunteer workers (as if they were any other worker) (see sections 19(3)(a), 22, 30, 36, 37, and 38), thus ensuring that these volunteers are afforded the protection of having the appropriate training, instruction or supervision needed to undertake their work safely – just like any other worker.
Rather than seek to find reasons not to comply with the Act, not-for-profit associations would be well-advised to adopt procedures that are consistent with the Health and Safety at Work Act 2015.
The Act is a complex piece of legislation, and the above summary really does not do it justice. How it is considered to apply to not-for-profit organisations will, no doubt, become clearer as its provisions are tested against what happens in voluntary organisations.
For specific advice the issues discussed in this article, please contact Mark at mark@nfplaw.co.nz.