Volunteer Organisations/Clubs – What are the Risks Related to the HSWA 2015?
When evaluating the Health and Safety at Work Act 2015 (HSWA), the first point to cover is determining whether what someone is doing constitutes a Person Conducting a Business or Undertaking (PCBU).
The simplest way find this out is to ask if money changes hands during the undertaking. If the answer is ‘Yes’, the PCBU is subject to the HSWA and all its requirements.
Next, ask if the PCBU is a ‘volunteer organisation’.
Does it have volunteer workers? If the answer is yes – and provided the volunteer organisation meets the criteria under the Act – Part 3 ONLY provides the provision that an individual may not be subject to prosecution.
However, all the other requirements must be met.
Why is it so important to be compliant with the ACT?
Failure to have systems and processes that meet the threshold of evidence may lead to a criminal prosecution. In the event of a death, this may mean a Manslaughter charge.
This is not about scaremongering, but rather a more factual situation. For example, the writer is aware of events being conducted outside of an organisation which can be affiliated with running events.
Here is the scenario: A participant is killed.
They paid an entry fee, which the organiser accepted. Therefore, there is a PCBU relationship. It doesn’t matter at this point what happens to the money, the fact is this is a PCBU.
WorkSafe NZ would investigate death due to PCBU. The evidence is provided that it is a Volunteer organisation. WorkSafe would expect to apply the ‘Volunteer Organisation’ test.
The Police will also be investigating and will work and share information with WorkSafe.
Questions that you would expect to be asked.
- Are the organisers affiliated with any National organisation or body?
o Yes: Then the National Body would have systems and processes provided to affiliated clubs to evidence and demonstrate all reasonably practicable steps have been taken, in the context of the event.
They can also provide support to the Club. The organiser of the event chose not to be affiliated and run their own event. The point here is the knowing of the National body and its processes to run an event as safe as Reasonably Practicable.
Is this now a case of negligence? Is this now not a criminal matter?
The organiser(s) have knowingly failed to apply processes and guidelines, developed by the governing body, usually over many years to run events as safe as Reasonably Practicable. What responsibility do the participants have in paying to participate, knowing the event is running outside of appropriate processes?
Proffering answers to these and the many other questions is what we do.
These are just a couple of points: – Having no demonstrated, evidenced and applied Health and Safety process is a very real risk to the PCBU and participants – Ignoring ‘best practice’ is a very risky process – Ignoring the law carries its own risks – Participating in an event without understanding the risks is very risky
At the end of the day, acting as though ‘it doesn’t affect me’ could prove fatal.
Don’t have a Health and Safety Policy, or unsure if your current policy is effective? Contact Graham Roper Here to make your organisation compliant with the new Act