I have received several questions/comments regarding the status of volunteers with Victoria SES and I have taken the liberty of editing them into this one combined question. For related posts see:

The combined questions are:

I have been looking at the application of the Occupational Health and Safety Act 2004 (Vic) to volunteers within the Victoria SES.

  1. Where an employer has given an enforceable undertaking, would that establish requisite knowledge about risk and control measures if there was a similar situation in the future? 
  2. Does the Occupational Health and Safety Act 2004 (Vic) (OHS Act) affect the definition of ‘volunteer’ in the Victoria State Emergency Service Act 2005 (Vic) (the Vic SES Act)? 
  3. … (see below)

The OHS Act defines a volunteer as ‘a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses)’. The Vic SES Act defines a ‘probationary member’ (s 4) as ‘a volunteer registered as a probationary member under section 36’. The term ‘service member’ means ‘a person referred to in section 28(2)’. A registered member (s 37) is a probationary member who has applied to be, and has been accepted as, a ‘registered member’ of the service. Only the definition of ‘probationary member’ uses the term ‘volunteer’. 

Section 42, the immunity section, refers to immunity for ‘a Service member or a volunteer emergency worker’. Does this indicate that a service member is a member registered under s 37, but a volunteer is not? So based on this, is a Service Member still a volunteer? If they are not a volunteer under the VICSES Act does the definition in the OHS Act for volunteer have the same meaning in the application to VICSES service member.  I am not leaping to the conclusion that VICSES service members are employee, as they could still be “others” just not volunteers under the definition of the OHS Act.

Further section 5(2)(a) of the OHS Act says ‘the following persons are taken to be employed by the Crown under a contract of service’ and it identifies officers within the Victoria Police Act 2013 (Vic). Section 5(2)(b) says ‘despite any contrary rule of law, the contract of service and the relationship of employer and employee is to be taken to exist between the Crown and each of those persons in respect of the performance of the duties and exercise of the powers as such a person (whether arising at common law, under statute, by the instructions of superiors or otherwise).

  1. … (see above)
  2. … (see above)
  3. Based on this, does the contract of service, now bring the connection of a registered service member of Crown to be in an employer / employee relationship, and thus the Crown service member is included as an employee under the VIC OHS Act? 

This quickly starts using the language: “In considering the sections of the OHS Act, it is clear the volunteer roles have an obligation to take reasonable care.”

This doesn’t feel quite right. It feels like it has leaped from the Vic Wrongs Act 1958 (Vic) which moves the Duty of Care from a legal principle to a prescribed obligation and then leaps forward to employee obligation assuming the duty for an employee and a volunteer is the same in a workplace. Although the Wrongs Act uses ‘foreseeable,’ the employee duty under the OHS Act uses ‘Reasonable Care’ (usually limited by qualification and employer training). But the OHS Act definition of ‘employee’ does not include volunteers (albeit this is different in WHS Actjurisdictions). Thus, I would assume the volunteer has no prescribed obligation under the Vic OHS Act regarding the Duty of Care, that duty only resides in the Vic Wrongs Act 1958, where the application of the duty is broader than that imposed on an employee. 

Thus, in determining the foreseeability of the volunteer’s obligation under the Wrongs Act, one would look at their knowledge path via membership, code of conduct, and adherence to operational doctrine—compared to the employee’s duty of knowledge provided by the employer.

It feels the same but would there be different charges under different Acts depending if you are an employee of volunteer?

I will deal with each question in turn.

Question 1

If an employer has contravened, or it is alleged that they have contravened a section of the OHS Act, then the regulator may accept ‘a written undertaking … in connection with a matter relating to a contravention or alleged contravention’. Clearly at that point the employer is aware of what it is they are alleged to have done and if they have had good lawyers, they are also aware of what the regulator alleges they should have done to ensure the health and safety of their workers.

It must follow that if there is later allegation of a similar breach that the prosecutor would rely on that earlier breach to argue not only that the employer should have known how to manage the risk, the did in fact know and had given an undertaking to prevent future breaches.  Even if that undertaken has lapsed on the basis that the employer complied with it within the time prescribed, it will still be relevant to show their state of knowledge if there is a future, similar breach.   And no doubt a judge will see an offence as more serious if it is a repeat of conduct that had, on a previous occasion, led to an enforceable undertaking. 

Question 2

The essential issue that distinguishes a volunteer from an employee is that a volunteer does not get paid.  The reason that the UK court found that Coastguard Rescue Officers were employees not volunteers is that they were paid an hourly rate when responding. The 

… payment was ‘… “compensation for any disruption to your personal life and employment”. As the deputy judge said in the EAT, a payment in compensation for interference with a person’s use of their time is the essence of remuneration’ ([41]).

Victoria SES members that are not paid are volunteers.

Section 42 of the Vic SES Act does not distinguish between service members and volunteers; it distinguishes between service members and ‘volunteer emergency workers’.  The Vic SES Act adopts the definition of volunteer Emergency Worker that appears in the Emergency Management Act 1986 (Vic) s 4 that is:

… a volunteer worker who engages in emergency activity at the request (whether directly or indirectly) or with the express or implied consent of the chief executive (however designated), or of a person acting with the authority of the chief executive, of an agency to which the state emergency management plan applies;

A service member is (s 28(2)) the Chief Officer, Operations, any ‘persons employed or deemed to have been employed under section 30’ and all ‘registered members and probationary members’. They are given immunity under s 42. Volunteer emergency workers are also given immunity. Volunteer emergency workers (as defined above) are those spontaneous volunteers who in the emergency make themselves available to assist.  They are not ‘service members’ as they are not registered, either as a probationary or registered member of the SES. 

So, yes, s 42 does ‘indicate that a service member is a member registered’ under either s 36 (probationary member) or s 37 (registered member) but a volunteer emergency worker is not registered under either section. Although s 36 refers to a probationary member as a ‘volunteer’, he or she is a ‘service member’ not a ‘volunteer emergency worker’. 

A registered member is still a volunteer if they are not paid.  That is consistent with the definition of ‘volunteer’ in the OHS Act.

Section 5(2) of the OHS Act provides that members of Victoria police are deemed employees of the Crown to impose the OHS obligations upon the Crown. Historically police officers were not regarded as employees as they hold the office of ‘constable’ as a personal office – and a constable cannot be directed how to perform his or her duties in that office – see Are police employees? (August 11, 2014). 

Section 5(2)(b) says ‘the relationship of employer and employee is to be taken to exist between the Crown and each of those persons’ that is each of those persons listed in s 5(2)(a). That list does not include members of the SES.  Section 5(2) has no application to the SES so, no, it does not ‘… bring the connection of a registered service member of Crown to be in an employer / employee relationship’.  Section 5(2) says a contract of service is deemed to exist between the Crown and police officers, not anyone ‘registered’ as a member of a government service, such as the SES, is thereby an employee. 

Nothing in the OHS Act or the Vic SES Act changes the fact that both probationary members and registered members are volunteers.  There is no inconsistency between the legislation.  If they’re not getting paid, they’re volunteers. 

Question 3

The Wrongs Act 1958 (Vic) and the OHS Act 2004 use similar language but are very different in their scope. 

The Wrongs Act is about civil liability, relevantly for this discussion it represents statutory modification, if not codification, of the law of negligence. The law of negligence in its most basic terms requires an injured plaintiff to prove that the defendant owed them a duty of care, failed to take reasonable care and that failure led to the plaintiff’s loss or damage. 

The Wrongs Act s 48 does use the term ‘foreseeable’ but it does not say that a duty of care arises to avoid a foreseeable risk of injury.  That the risk is ‘foreseeable’ is just one factor to be considered when determining whether a duty of care exists (see s 48(1)(a), (b) and (c)). In deciding whether a reasonable person would have taken ‘precautions against a risk of harm’ the court must consider the matters listed in s 48(2).

The OHS Act says an employer has a duty to ‘so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health’ (s 21(1)). They also have a duty to ensure ‘that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer’ (s 23(1)). That duty is the essence of their duty to volunteers that they have engaged. 

In deciding whether or not there has been a breach of duty the court must have regard to the matters listed in s 20. 

Without quoting the Wrongs Act s 48(2) and the OHS Act s 20 in full, they are very similar and set out the same sort of factors to be considered and are a basic risk assessment, ie what is the hazard, how likely is it to occur, what are the likely or foreseeable consequences and what the person knew or could be expected to know about how to mitigate the risk and ultimately the relative cost of mitigation.  If there is a difference in language between the two sections, it is not significant unless you’re a lawyer running someone’s defence.  For our purposes that are sufficiently similar that nothing turns on them.

The difference is that the Wrongs Act will impose a duty on anyone who is undertaking a task where there is a foreseeable risk of injury – their relationship with the defendant not any putative employer is what is important. You owe a duty of care to people who come to your house, to people on the road if you drive a car, to the clients of an organisation you work or volunteer for etc.   A volunteer could be sued for negligence under the Wrongs Act save that a volunteer for the SES has immunity by virtue of s 42 of the Vic SES Act and other volunteers are protected by the Wrongs Act s 37.  Both those Acts provide that a plaintiff can sue the organisation but not the volunteer

The OHS Act imposes duties on employees, not workers (note that in those jurisdictions that have adopted the Work Health and Safety Act 2011, a volunteer falls within the definition of ‘worker’.  That does not make them an employee). It’s true that a volunteer does not owe anyone a duty under the OHS Act.  An employer has a duty to ensure the workplace is safe for employees and others so it is the employer, in our context Vic SES that must ‘ensure’ that its volunteers work safely so as not to expose employees, other volunteers or members of the public to unnecessary risk. If a volunteer’s actions do lead to that risk, the it is the SES that is in breach of its duty.

In either way, if a volunteer engages in conduct that exposes another to an unreasonable risk of harm, it is the SES not the volunteer that will be liable. 

When considering whether the organisation is in breach of its duty, under either Act one would look to the volunteers ‘knowledge path via membership, code of conduct, and adherence to operational doctrine’ to ask both whether the member had acted as he or she had been trained to do but also whether the organisation had implemented appropriate training and assessment to ensure that its members were properly trained and properly competent to do the tasks assigned to them.

The difference between the Acts is the consequences. My correspondent wrote ‘It feels the same but would there be different charges under different Acts depending if you are an employee of volunteer’ and that shows a fundamental misunderstanding.

The Wrongs Act is (relevantly) about the law of negligence. That is the law relied upon when someone is injured and wants to claim compensation.  There are no ‘charges’ under this Act. If the plaintiff proves their case the defendant has to pay compensation to put the plaintiff back in the position, as far as money can do it, that they would have been had the negligence not occurred.   If no-one is injured there is no liability.  If there is liability then in the context of this discussion, Vic SES would be liable and no doubt will be insured and their insurance company will pay the damages.

The OHS Act is designed to create a safe work place. It creates criminal offences for failing to meet an OHS duty. An employer can be prosecuted for a breach of the OHS Act if a person is exposed to a risk to their safety even if no-one is actually injured. In the context of this discussion a volunteer will not be charged under the OHS Act as they do not owe an OHS duty.  If they act in a way that it is unsafe then they are acting as part of Vic SES and it is Vic SES that can be prosecuted.  Criminal penalties cannot be insured against.  

The Wrongs Act and the OHS Act use similar language but are laws about different subject matters. I would say that under both Acts an organisation that relies on volunteers has a duty to its employees, other volunteers, its clients and the public at large to perform its functions safely. The organisation acts through its employees and its volunteers.  If a volunteer acts in a way that exposes others to harm, the organisation may be sued for compensation (Wrongs Act) or prosecuted for breach of its OHS duties (OHS Act).  In either case, deliberate and wilful misconduct aside, it will be the organisation and not the volunteer that will be liable. 

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.