Liability for Volunteers: The Question of Workers Compensation

by Vince Scopelliti

Workers compensation is one of those central issues that necessarily impacts upon the thinking and planning of Australian employers. To use the old phrase – “accidents happen.” And indeed, it is this inevitability that leads to the simple, no-fault basis of most Australian statutory workers’ compensation schemes.

Yet workers compensation is a variable beast, and not all issues are as simple as they might first appear. For example, the ongoing tension between the definition of ‘workers’ and ‘contractors’ is just one of the many complexities within the arena of work-related injuries.

Add to this the many jurisdictional variances in applicable laws across Australia, and it becomes clear that claims for injuries sustained on work sites might well require some careful navigation. Volunteers can certainly add an interesting element to the liability equation.

The injured volunteer

One issue that can often be overlooked is the potential liability that attaches to volunteers who are injured in the course of their work for organisations. On first glance it might seem a simple answer – volunteers are, by definition, not workers – so workers compensation is clearly not payable. But is that strictly correct in every case?

In unravelling the possibilities, it is necessary to examine the three interrelated issues of definitional challenges, the employer’s broader duty of care, and the complexity of state and federal differences in this arena.

Worker versus volunteer

We have pointed to the seemingly basic logic that volunteers are, by their very nature, not workers. And in many workers’ compensation schemes across Australia, volunteers will be specifically excluded from the workers compensation definition of worker, as well as from the matrix used by insurers to ascertain premium costs. But this is unlikely to be the end of the story. Complexities can arise for example where volunteers take on some paid duties from time to time, or are paid some form of honorarium.

Will this make them ‘workers’ for the purposes of workers compensation?

The answer will of course depend on a number of issues, beginning with the state or territory in which the injury occurs.

From there, the issue of payment and questions of control over the person’s actions will assist in establishing whether the person is – for the purposes of the law – either a worker or a volunteer.

If found to be workers for the purposes of the relevant workers compensation scheme, then the issue might well be cut-and-dried under existing legislation.

Volunteers and the employer’s duty of care

Yet even if an injured party is clearly a volunteer and outside of the workers compensation realm, the employer will almost certainly be liable for the costs and/ or damage associated with any injury that a volunteer sustains while engaged by the employer.

We know that employers understand the over-arching duty of care that attaches to all persons who set foot upon a work site – and the volunteer work force is no exception. The duty stems from the legal need for Australian business owners to ensure the health and safety of all persons who are present at premises or sites of the organisation. Naturally, this includes volunteers. Managing the risks associated with the duty of care owed to volunteers, staff and others at work is a crucial and ongoing exercise for employers. It is vital that organisations are clear on the coverage of their insurance for these differing groups of individuals.

State and federal differences

Once risk is analysed in relation to the volunteer presence of an organisation, employers may need to address the question of appropriate insurance coverage for injuries sustained by volunteers. States, territories and the Commonwealth can have subtle but important differences around the reach of their particular schemes. Are injured volunteers subsumed under workers compensation in this state? Does a common law duty of care apply in this territory, rather than statute? Do I need to organise coverage for volunteers beyond my general public liability cover? And so on.

The liability of employers for injuries sustained by volunteers will be a complex question to answer. We often hear that organisations are deeply grateful for the valuable work of their volunteers, and are motivated to ensure their health and safety during their endeavours. Preparation is necessarily central to meeting our obligations in this complex field. Whatever the jurisdiction in which your volunteers are engaged, seek expert advice on the question of liability, should a volunteer injury occur at the work site.

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