A not for profit entity provided employment opportunities to disabled people in its local community.  The work involved heavy machinery, and unfortunately one of their workers was seriously injured in an unguarded machine.  The worker injured was one of the supervisors and was injured when they ignored safety procedures and climbed into a machine.  Worksafe brought proceedings under the Health and Safety at Work Act against the charity.

In this case, the Court decided to discharge the charity without conviction because the charity had taken its health and safety responsibilities very seriously and had engaged an expert in the field to undertake annual audits of its health and safety procedures.  That expert had failed to pick up the need for a guard on this particular part of the machine and the employer did not realise that a guard was required on this particular part of the machine.

The Court said that this was not a case where an employer had ignored its responsibilities, but the employer had taken them seriously, had put in place operating procedures to avoid accidents and had engaged experts to assist it with that process.  All of those actions, however failed to prevent the accident and a guard on that part of the machine was required.

The Court emphasised that the discharge without conviction (the first reported discharge without conviction under the Health and Safety at Work Act) was not to be taken as a precedent for other cases as the facts here were very abnormal and that normally convictions will be entered.

It is important for not for profit entities and charities to be aware that the Health and Safety at Work Act covers both for profit and not for profit undertakings.  Being a Not for Profit does not change any of your duties under the Act.

There is an exception for volunteer organisations.  However, the definition of a volunteer organisation is one that has no employees at all (not even part time).  So if your organisation has a part time administration person or cleaner, for example, it is not a volunteer organisation for this purpose, despite all the volunteer work done by the membership.

If your organisation has one central body and many members throughout the country who all belong to the central organisation, then one employee of the organisation anywhere in the structure means the entire organisation is covered by the health and safety duties under the Act.  If the one employee were a contractor rather than an employee then the organisation can still be exempt.  However, if there is one employee then the duties will also extend to any contractors as well. 

Even if you do fit into the volunteer organisation category, and the Health and Safety at Work Act does not apply, this does not mean your organisation cannot be liable if someone is injured by your activities.  The Crimes Act still applies and prosecutions under that Act for deaths or injuries can still be taken. 

The best way to protect your organisation and meet your duties, is to ensure your organisation identifies any risks and manages those so that no one is injured from the activities.  You do not want any of your colleagues, friends, visitors or the public to be hurt by what you do, no matter whether they are “at work” or “voluntary”.

Alan Knowsley