News

21 Dec 2011

Volunteers and Risk – UPDATED!

Here is what started this topic:

Trevor Beck wants to build network of contacts where trusted people are available on gigs to let one or two people come along to observe and learn.

But: “I have been told recently that the laws have changed, and that now, me for example, even inviting somebody along to observe, or to get them to do anything at all, even plug in a few mic leads, will completely expose me legally should there be an accident.”

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Read on for a concise answer, below with simple summary at the end.

“I contacted Volunteers Australia who tell me I would be exposed totally, it’s just that its never been tested in court yet”.

So does this mean that it is harder than ever for a new entrant to get some valuable on the job knowledge, and what are the actual risks?

THE RISK

Your volunteer trips, slips or otherwise is hurt. They or their advocate takes legal action to recover damages for loss of earnings, impairment, and medical costs. You are the legal target. With all litigation, the defense costs are significant, win lose or draw.

PAUL MATTHEWS COMMENTS:

On volunteers and insurance, something I have gathered a bit of experience with over the years.

You’re right about these issues not having been tested in court. However to cover yourself what you have to do is to go into the court of imagination and let things play themselves out.

When these things happen, the plaintiff goes for everyone. You, the PL insurer, the WC insurer and everyone in between. You’ll all be in the court room gazing at each other, each paying a lawyer to stand beside you at $500 per hour.

The plaintiff will be blaming everyone, no holes barred.
Your lawyer will be trying to prove the liability rests with the insurer (either one).
The PL insurer will be trying to shift the responsibility on to the WC insurer.
The WC insurer will be trying to shift blame onto the PL insurer.

And on it goes.

The argument will end up being one of deciding whether the plaintiff was a “member of the public” or your “worker”.

Lets get something straight here (to contradict what Julius said in an earlier post, here). Most insurance policies do NOT define a “worker” as someone who is getting paid to work. I know, you’re surprised – so was I when I first found out. In most cases a “volunteer worker” is classed as a worker under the definitions governing Workers’ Compensation insurance. Even to the extent that most policy renewals will have a box on them where you have to tick and declare if your organisation employs volunteers. If you tick it, the insurer will send you out another clump of papers where you have to define what the worker does (etc), how many you have and how often they work. If it adds up to a miniscule amount (in comparison to the paid workers) then they don’t really care. If they find half your workers are volunteers then they’ll slug you for the relevant policy to cover them.

Most WC policies define a “worker” as anyone who is “tasked with work or responsibility” by the policy holder. They use many different definitions to work this out but in the end if you have an unpaid person taking orders from you to do a task then they are a worker under the NSW Workers Compensation Act (I imagine similar interstate). Whether (or what) they are paid in return is irrelevant. As soon as there is a “Boss to Worker” relationship there then they come under the Workers’ Compensation policy. And if you don’t have one then you’re in shit because the PL insurer will use this as their main defense to argue that they are not liable, and leave you high and dry to cover it yourself.

If one of these cases gets to court the argument is likely to revolve around proving if the person was a worker or a member of the public. If a worker then they are insured by WCI. If a member of the public they are covered by PLI. The principle test both insurers are likely to call on is to call into question exactly where the injury took place and whether this place was a place “normally accessible to the public”.

For example in a church, it can be fairly argued that the stage is a place “normally accessed by the public”. There’s no barriers, no security and usually stairs at the front of the stage inviting the public to come up and get saved or whatever. However in a large rock performance, the PL insurer would almost certainly argue that the stage is “a place not normally accessible to the public”, because there’s a set of barriers and some beefy security guards in between the stage platform and “the public”. In a workshop situation or corporate event it could be argued that “none” of the area where the worker was working could be defined as an area normally accessible to the public – because the public were specifically excluded from entering the venue either by locked doors and gates or some sort of exclusive entry scheme limiting the event only to “employees of the client”.

My experience this all came about involving heritage railway trains. If a volunteer “member of the public” was injured on a publicly accessible railway platform amongst activities which could be considered normal activities for such a space – they are covered under Public Liability. But as soon as that person walks off the platform and into the restricted rail corridor or a workshop (or, for that matter, the heritage train itself) – PL no longer applies and that person will need to be covered by a separate policy – usually a “volunteer worker” policy offered by a WC insurer.

The bottom line to all this is to cover your arse and consider ANY “volunteer” as a WORKER. Declare your interest in volunteers to your insurer when renewing the policy (heaven help you if you don’t have a policy – if you don’t you really are stoopid). If you “employ” only “volunteers” then the insurer will likely just offer you a bare bones policy where they declare the annual wages as zero and you just pay the minimum policy (similar to that paid for apprentices). You will still have to go through all the fuss and bother of filling out the paperwork declaring the risk though, such as declaring what kind of work the worker does etc. Volunteering Australia should be able to offer you good advice in this regard. If all else fails contact AON insurance in Queensland – AON provide cover to a good slice of volunteer organisations in Australia, include a cover in their package which specifically covers volunteer workers and the premiums are reasonable. Don’t expect instant cover though – it can take up to six months to get the paperwork through.

Any volunteer you “employ” should be subject to the same inductions and rules as paid workers. There should definitely be some sort of written agreement between you as to who is responsible for what – because in volunteer situations this can become very muddy. The more you cover yourself to declare that the volunteer is, in fact, a Worker – the better your chance of avoiding the slinging match in court if it was to ever come down to that.

Do NOT rely on the old lie that “volunteers” are “members of the public” and will automatically be covered by PLI – either yours’ or the venues’. The chances of the PLI insurer being able to prove the person was more than “just a member of the public” are fairly high – especially if you’re friends with your volunteer mate and have known each other for years. PLI policies’ small print include a wealth of lines on “arms length relationships” voiding them of responsibility (for example) to family members of the policy holder, much the same way as your car insurer will not cover damage to your car done by another car owned by you or a close family member.

Don’t be discouraged from employing volunteers. Just do the right thing and make sure they and you understand what’s going on and that they are still “a worker” and your still “the boss”. And check that WC insurance policy!

Paul Matthews.

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From the Event Safety and Emergency Management Australia group on Linkedin,

David Storie • The WHS Act does not define a ‘business’ or ‘undertaking’. So, the Question seems to be how is the word undertaking defined within PCBU but as far as reasonably practicable I am sure volunteers fall under the worker definition – any other comments on if vounteers should be treated differently?

Roderick van Gelder says:

For an industry that regularly depends on volunteers, here is a very useful link:
http://safeworkaustralia.gov.au/Legislation/Resources/Pages/FAQs-Volunteers-Volunteer-Organisations-model-WHS-Act.aspx#faq1

Have a look and maybe forward the link to any volunteer organisations you may work with.
ANd make sure they understand when they are and when they are not a volunteer organisation under the WHS Act.

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MORE RISKS:

Without Public Liability insurance you are at direct risk where anyone claiming any injury can go after you, down the track. Imagine a hearing loss claim, because you mixed too loud’. Says who? Well if you read the CX-MAG Facebook page, says newspaper reviewers, three times in December alone. Not too loud in the case of Sade or Kimbra, but yes loud for Tim Freedman at Metro. Or what about a lighting laser ‘cuasing’ loss of sight? Or someone trips over your cable tray?

One dark rainy night Jess and I stepped into a muddy hole in a supermarket car park while building was underway. My letter of demand for $80 worth of dry cleaning was not settled by the management, but by their insurer. I was amazed that a release agreement and a cheque were conjured up within 10 days. No one saw us – we were dressed to go to a wedding and had to go home to change, which is why I bothered with the claim. We could have ‘claimed’ a twisted ankle or worse.

But the biggest single risk that Trevor and anyone working the freelance road is that an employer does not have workers compensation insurance. When (not if, when) your back gives out, on the job, or you smash some part of yourself, or fall off the bike on the way home, you are screwed, baby. No work. No money. Hospital waiting list. Depression. Bottle. Drugs. Death. Divorce or all of these, usually in the correct sequence.

The revolving door scenario – fate has you turn left, never suffer an accident, work happy live well procreate and make a better world. Or turn right, and descend into the gloom. Best to plan for the worst, don’t you think?

SUMMARY

Summary regarding volunteers: Don’t engage volunteers unless you carry both Public Risk AND Workers Comp insurance; AND advise the insurers beforehand. Every church would have this problem.

CX WILL TAKE VOLUNTEERS!

We will take two volunteers for each CX Summer Roadshow, not we hasten to add, as loaders. We are paying the loaders!

DEBATE: Email juliusmedia@me.com

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