A recent Fair Work Commission decision provides some guidance on when an individual will be a volunteer, which is important because:

  • Officers who are volunteers (irrespective of whether they receive out of pocket expenses) cannot be prosecuted for breach of their obligation to exercise due diligence under the harmonised WHS legislation.
  • Some volunteers cannot make bullying complaints under the Fair Work Act 2009 (Cth).

In this case (McDonald [2016] FWC 300), Ms McDonald, a local artist and volunteer treasurer with the Cooktown School of Art Society Inc (CSAS), alleged bullying by a group of persons involved with CSAS over a five year period, culminating with her exclusion from CSAS and its art gallery.

The respondents to Ms McDonald's application raised a number of jurisdictional issues. In dealing with these and dismissing the application, the Fair Work Commission held that:

  • Ms McDonald was a volunteer of CSAS (not an employee), despite receiving benefits - being a reduced commission charge on her art sold by the gallery, and a one-off waiver of her annual membership fee. The commission benefits were found to be an incentive to join CSAS or provide assistance rather than to compensate for the particular assistance provided. The Commission said, '…in general terms a volunteer is someone who enters into any service of their own free will, or who offers to perform a service or undertaking for no financial gain. The commitments shared between the parties are usually considered to be moral in nature, rather than legal. Payments or benefits unrelated to hours of work or the actual performance of work will not normally by themselves imply that a person is an employee. In these circumstances, any payment or benefit can be more aptly described as an honorarium of gift. For example, a worker may receive board and lodgings or reimbursements for expenses and still be considered a volunteer provided that this was the fundamental nature of the relationship.'
  • CSAS was not a 'person conducting a business or undertaking' (PCBU) for the purposes of the Work Health and Safety Act 2011 (QLD), in circumstances where CSAS was a group of volunteers working together for a community purpose (including operation of an art gallery and promotion of local artists for the benefit of the local community) and had no employees carrying out work for it.
  • As CSAS was not a PCBU, Ms McDonald could not be said to have carried out work for a PCBU and therefore was not a 'worker' for the purposes of the WHS Act.
  • As Ms McDonald was not a 'worker', she was ineligible to make an application for a stop bullying order.

What does this mean for your organisation?

  • A volunteer in a volunteer association may not be a 'worker' for the purposes of harmonised WHS laws. Volunteers will be workers if they carry out work for a PCBU.
  • It provides some guidance about the types of payments and benefits volunteers can receive without being considered workers (which is important for determining whether volunteer officers can be prosecuted for breach of their due diligence obligation).
  • Your organisation's WHS systems should ensure that volunteers are treated as other workers.