A volunteer with NSW RFS asks
My query is in relation to the NSWRFS and its role as PCBU for its volunteer workforce. Does a volunteer of the NSWRFS now hold rights as a public service worker seeing volunteers are now deemed to be workers? Should there be a workplace agreement between the NSWRFS office (PCBU) and its workers (Volunteers) the same as any normal workplace? If so is a volunteer (worker) of the NSWRFS entitled to representation by a Union such as the PSA where workplace related issues can be taken up?
The short answer is ‘no’. The term ‘worker’ includes a ‘volunteer’ for the purposes of the Work Health and Safety Act 2011 (NSW), not for all purposes. The reason they now use the terms ‘worker’ and PCBU, instead of ‘employee’ and ‘employer’ (as was the case in the Occupational Health and Safety Act 2000 (NSW)) is because there is a difference. An employee has entered into a particular type of contract with their employer. The concept of a worker, particularly under the 2012 Act, is much broader than just an employee.
So a volunteer with the RFS is a ‘worker’ but they are not deemed to be an employee. See also section 21(3) of the Rural Fires Act 1997 (NSW) that says that a member is ‘…not to be taken to be an employee of the State, a Minister of the State or a local authority’.
As a volunteer is a worker for the purposes of the Work Health and Safety Act then the relevant rights and duties are found in that Act. The PCBU has to take care of their volunteers as they would their employees. A volunteer is obliged to take reasonable care for his or her own health and safety, take reasonable care not to adversely affect the health and safety of others, to comply with any reasonable instruction that is given to allow the PCBU to meet its obligations under the Act and to co-operate with any reasonable policy or procedure relating to health or safety, as they would if they were an employee.
A volunteer worker is entitled to take part in health and safety consultation as if they were an employee. The PCBU must consult with workers, including volunteers (s 47). A volunteer can request the election of a health and safety representative (s 50) and may be a part of a health and safety committee or other consultation arrangements.
A relevant union may hold a WHS entry permit (s 116) and can then enter the workplace to inquire into suspected breaches of the Act or to consult with workers. A ‘relevant worker’ is worker ‘a) who is a member, or eligible to be a member, of a relevant union, and (b) whose industrial interests the relevant union is entitled to represent…’ Whether or not you could join a union would, I suggest, be a matter for the union but I would suggest that a volunteer does not have ‘industrial interests’. If the union represents paid staff it could enter to investigate a breach of the Act and may take action if it finds a breach even if the only people affected are volunteers – in that situation they are acting like the police. It’s a matter of industrial law as to whether a volunteer could join the union but assuming they can’t then a union couldn’t enter to consult only with volunteers, but it could do so to consult with its members and I imagine could well invite volunteers to join the meeting.
The definition of ‘worker’ in the Work Health and Safety Act would not allow a volunteer to ‘representation by a Union such as the PSA where workplace related issues’, other than issues related to the Work Health and Safety Act can be raised.
Australian Emergency Law 
For the information of your volunteer: NSW RFS members do have a ‘union’ of sorts…. the Rural Fire Service Association (RFSA).
I’m afraid I must disagree with the notion that the RFSA is “a union of sorts”.
Indeed, it does not even see itself as union-like.
In its own constitution, it expressly states that it is not a union or an industrial body excludes itself from “industrial activity” (article 1.4).
It may also be helpful to note that section 10(2) of the [i]Rural Fires Act 1997[/i] has effect with respect to volunteer rural firefighters. This section operates to expressly exclude the operation of (what is now) the [i]Government Sector Employment Act 2013[/i].
From time to time, RFS Fire Control Officers across the State have agreed to the supervision of people on a community service order. They may ‘work’ around the Fire Control Centre undertaking things like gardening, cleaning, and basic administrative duties. They are not RFS volunteers under the Rural Fires legislation and they are not paid, but they are, by definition ‘workers’ under the NSW Work Health and Safety Act 2011.
When a volunteer organisation has a principal type of volunteer in situ, they can often omit to identify other volunteer roles within the organisation (of which there can be many and varied), and hence omit their WHS duties.
Do you have any thoughts or advice on ensuring that all volunteer ‘work’ is captured within an organisation, and that due diligence and WHS obligations are fulfilled? (I imagine the SES could be in a similar position, but less so something like St John Ambulance or Surf Life Saving Australia for example).
Best … Jan _______________
Jan
I have no specific advice but you’re correct. Under the Work Health and Safety Act 2011 a worker is
(a) an employee, or
(b) a contractor or subcontractor, or
(c) an employee of a contractor or subcontractor, or
(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, or
(e) an outworker, or
(f) an apprentice or trainee, or
(g) a student gaining work experience, or
(h) a volunteer, or
(i) a person of a prescribed class.
There does not appear to be any ‘prescribed class’ under the Work Health and Safety Regulation 2011 (NSW). Even if they are not a worker there is an obligation to ensure that they are not adversely affected by the work of the PCBU (in this case the RFS). So my thoughts are the RFS must undertake a normal risk assessment with anyone working at the centre whether they are members of the RFS or not. But I have no advice on how that should be managed.