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This content was added by Michael Eburn on his Australian Emergency Law Blog on November 15, 2014 at 6:25 pm.

The question was originally posted as a comment on the post ‘Firefighting and WHS in South Australia’ (14 November 2014). Michael’s correspondent writes:

I am a volunteer firefighter with the NSWRFS and currently a deputy captain. An issue still sits with me uncomfortably every time I attend an incident particularly after the ratifying of WHS and PCBU legislation (volunteers now have same rights under WHS as paid employees within NSWRFS).

Frankly it seems nothing has changed. It is still an archaic self-assessment method of ensuring you are fit for work. This is despite being told that our PCBU (NSWRFS) is now responsible for ensuring that we (volunteers) are in fact fit and healthy for frontline firefighting. I may be wrong but I don’t know of many other workplaces where fitness and health would be more important than at a wildfire front dragging hoses in extreme heat. My main concerns are;

Does the NSWRFS owe a duty of care to its volunteers (employees) to ensure they are medically and physically capable of undertaking such rigorous tasks? If so why has there not been some fitness or medical standard applied as in other industries (ie mining, aviation etc). Does self-assessment and self-disclosure method under such extreme work conditions get the PCBU off the hook should an injury or fatality occur?

Secondly and as importantly, does the NSWRFS realise this issue and take relative precautions in not sending frontline volunteers into hazardous situations (that may be relatively benign for a fit and medically assessed person) in order to appease the law. Does the NSWRFS have to accommodate the whole fire crew based on the lowest common denominator (the least fit) when working a fire? Would this amount to unproductive and excessively costly firefighting? Would the scenario where volunteers were required to undertake fitness tests (Auditor General is currently pursuing this) mean greater fire ground productivity and most importantly safer frontline volunteers?

Is the Government concerned about losing too many “non fit or non-healthy volunteers” from the ranks if assessed as not fit for work in the process? As I see it there must be an enforceable duty of the PCBU to its Volunteers (employees) to make sure they are safe on the fire ground.

I believe this (WHS, PCBU) is one major issue of law contributing to unsustainable fire ground suppression costs.

I am fully aware of volunteers and the ethos of bucking in and having a go, but is that good enough in this modern litigious society?

There are some things there I cannot comment on, in particular what the RFS ‘realises’ or what it is actually doing to restrict unfit firefighters from responding to a fire ground, nor can I comment on the Government’s concerns (if any). My comments are limited to the law, questions on how the RFS are dealing with the legal obligations will have to be directed elsewhere.

As noted New South Wales is part of the national work health and safety scheme (unlike WA, see ‘Firefighting and OHS in Western Australia’ (15 November 2014)). The Work Health and Safety Act 2011 (NSW) does indeed say that the term ‘worker’ includes a ‘volunteer’ so a person conducting a business or undertaking’ (a PCBU) must take the same care of its volunteers as it does its paid staff. ‘Person’ in this context means a ‘legal person’ so includes the RFS.

The obligation is not however to ensure safety but to do what is reasonably practical. That is:

… that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

One can imagine, without being a medical practitioner, that being unfit on a fire ground poses plenty of risk ranging from sprains and strains to death; but what can one do about it? One way to eliminate the risk is to have a minimum fitness standard but there is no doubt that comes at a cost. A diminution of firefighters restricts the services ability to respond to fires and might also be considered inconsistent with the National Strategy for Disaster Resilience and the concept of shared responsibility. Having members of the community in the RFS facilitates a more resilient community and the RFS has to deal with communities as they are, not as we’d like them to be.

One can say that why has ‘some fitness or medical standard’ has not been applied would appear to because there isn’t one. The former Bushfire CRC funded significant research on trying to develop appropriate fitness standards and to identify the risks faced by fire fighters on the fire ground (see Bushfire CRC, Occupational Health and Safety and Surge Capacity). In the absence of an identified and accepted standard, and test, it would be hard and not reasonable for the RFS to invent its own as such a test needs to be actually related to the workplace risks (see ‘Occupational Health and Safety and Discrimination’ (January 5, 2010)). The fact that research is being undertaken in this area suggests that the RFS (as a contributor to the CRC) is aware of the issue, but what to do about it would appear to be unsettled.

In deciding what a reasonable response to the risk is, ‘self-assessment and self-disclosure’ may well be sufficient if it’s done in a culture that encourages and allows people to step down without any criticism or peer pressure not to.

Ultimately the trend in modern law is not to impose blanket tests that apply to all industries or to regulate each industry. The modern WHS model is to oimpose on the PCBU an obligation to undertake a risk assessment and take reasonable action to mitigate, not necessarily remove the risk. Provided the PCBU can demonstrate a robust risk assessment process that will meet the demands of the WHS Act.

In terms of common law and negligence the RFS may have a duty to look after its firefighters but they also have a duty to take reasonable care of their own safety and to consider their own ability. If a firefighter is injured on the fireground, issues of negligence are unlikely to arise. A firefighter is entitled to the equivalent of workers compensation via the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) a no fault scheme so they don’t have to prove that the RFS or anyone else was negligent in their fitness standards.

Click HERE to read the original Blog and to have a look at the comments.

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