Read the story from ABC news here.
Because this matter was resolved with a plea of guilty, there are no ‘reasons for judgment’ so we cannot see what the SES were alleged to have done, or not done, that exposed this volunteer to the risk and eventual fatal outcome, nor do we know what WorkSafe alleged the SES could have done to reduce or remove that risk.
The application of the Victorian Occupational Health and Safety Act 2004 (Vic) to the SES and its volunteers is reasonably clear. That is not true in other jurisdictions such as New South Wales.
The Victorian Act imposes obligations upon employers to provide a safe working environment for their employees (s 21). An employee is “… a person employed under a contract of employment or contract of training” (s 5(1)). Volunteers are not the employees of VicSES.
An employer is “… a person who employs one or more other persons under contracts of employment or contracts of training” (s 5(1)). VicSES is an employer as it does employ people, albeit not its volunteers. As an employer VicSES has obligations to people who are not employees and that would include its volunteers. An employer is required to:
… ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer. (s 23).
The question becomes what is the ‘undertaking’ of the employer? In this case undertaking training as a member of the SES in order to perform the various tasks of the SES must be considered an undertaking of the employer, that is VicSES.
As this volunteer was killed in the exercise of SES training he was exposed to a risk as part of the work or undertaking of the SES. The SES entered a plea of guilty to the charge so they conceded that it would have been ‘reasonably practicable’ to mitigate or remove the risk.
The reference to “the conduct of the undertaking of the employer” is broad and will impose the obligation upon the SES wherever SES operations are being undertaken. It doesn’t matter whether or not an employed member of staff is on site as VicSES is an employer and its operations and training are its activities or undertakings.
The position is not so clear in New South Wales. In New South Wales the relevant Act is the Occupational Health and Safety Act 2000 (NSW). Again volunteers from the SES are not employees so the relevant provision is section 8(2) which says:
“An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.”
This has a two part test. The obligation arises if there is a risk cased by the ‘employer’s undertaking’ but only whilst the non-employees (including volunteers) are at the ‘employer’s place of work’. A critical question in New South Wales will be deciding where is the ‘employer’s place of work’?
Section 4 says
“place of work” means premises where persons work.
and
“work” means work as an employee or as a self-employed person.
A place where NSW SES volunteers are responding or training is not a place of work (at least not the SES’s place of work) as those volunteers are not working as employees or self-employed persons. Once a paid member of staff attends the scene (eg a training officer or a Regional Controller) then it would be a place where SES employees are working as an employee and it would become their place of work (see also the decision in Workcover v NSW Fire Brigades [2006] NSWIRComm 356 which found the fire ground was the place of work of the fire fighters at a factory fire).
Absent the presence of paid staff it is arguable, but unclear, that the place where SES volunteers are responding or training is still the place of work of SES staff as the Commissioner and other staff have responsibility and authority over the site. It is the paid staff that issue training and operational instructions and have ‘line management’ for the volunteer units and their operations. The para-military structure of the SES ensures that volunteers report to and are accountable to ‘superior officers’ so it can be argued that any response is the place of work of the Commissioner and others.
The ambiguity in the NSW legislation could lead to foreseeable problems. To take the factory example, the factory is operated by an employer and is the employer’s place of work. The employer has a clear obligation to take steps to ensure the health and safety of the volunteers on scene as they are at the employer’s place of work, but there may be no corresponding duty on the SES. If that were true liability for injury may be sheeted home to the factory owner rather than the SES which may make employers reluctant to seek SES assistance. If the SES are assisting at a scene whether other emergency services are also on scene, then consistent with the decision in Workcover v NSW Fire Brigades the paid members of those emergency services (retained and full time fire fighters, ambulance officers etc) may have more of an obligation to ensure the safety of SES volunteers than the SES does. This could cause conflict and confusion as to who is in command, SES volunteers who are not bound by the OHS Act, or paid emergency service staff, who are?
It’s not the members
Regardless of the fine legal points (remembering that the application of the OHS Act is clearer in Victoria than it is in New South Wales), it should be heartening to note that in both cases, that is the case involving the NSW Fire Brigades and the recent prosecution of VicSES it was not the individual fire-fighters or volunteers or trainers that were prosecuted. In each case it was the organisation itself that was the subject to the proceedings reflecting the view that the safety failures lay not in the decisions of the members on the ground or their failure to apply safe practices and policies. Without knowing the details of this latest case, we may assume that the prosecution of the organisation, rather than an individual , represents a view by WorkSafe in Victoria and WorkCover in New South Wales, reflected a view that in each case it was an institutional or organisational failing to ensure that the members had the tools, the resources or the training to safely perform their task.
Michael Eburn
30 November 2009.
Australian Emergency Law 
Michael- I’m a bit confused about the volunteer and the place of work definition.
If a volunteer goes to their designated unit to train and the training is being instructed by another volunteer, are they at work and are they covered in case of a serious injury or death while training?
If I interpret your definition correctly, you’re suggesting only if the training is being conducted by a paid member of staff.
Also, from an organisational perspective (e.g. the whole of VICSES or NSWSES, etc) are they “at risk” by allowing volunteer members to conduct training? I’m sure I’m not alone- I certainly have cringed at some of the training I’ve seen conducted by other volunteers….
Luke
Your are confusing two issues here; one is criminal liability under the OHS Act and the other is the right to obtain compensation if injured. They are in fact completely unrelated even if the same entity (WorkSafe in Victoria, WorkCover in NSW) have some jurisdiction over both.
In Victoria the right of an SES volunteer to get compensation if they are injured in the course of an SES activity is contained in sections 47-54 of the Victoria State Emergency Service Act 2005 (Vic) not the OHS Act of 2004.
If “ … a volunteer goes to their designated unit to train and the training is being instructed by another volunteer” then yes they are “covered in case of a serious injury or death while training”. Section 47 of the Victoria SES Act says:
and further
So there’s no problem with compensation.
The other question is assuming a volunteer is killed or injured during training, can the SES or the trainer be prosecuted under the Occupational Health and Safety Act 2004 (Vic). My answer to that is that in Victoria, yes. The work is part of the undertaking of the SES, the SES is an employer and so the SES must ensure everyone, employees and non-employees are not exposed to risk of injury or death as a result of those activities. Whether or not WorkSafe would look to the organisation or the trainer would depend on what happened, how and why. Questions as to whether the instructor was doing as he or she was taught, their level of experience, the level of supervision and all sorts of other imponderables. My point in my earlier blog is to reassure trainers and others that in most cases it won’t be the individual; any accident assessment these days realises that they are usually caused by systemic issues rather than personal, but you could have a case where a very experienced, trainer, perhaps someone who trains trainers, just does something so mind boggling stupid and contrary to every good practice, that you would say it was ‘their’ fault and not the organisations, but really it’s hard to imagine.
Could the organisation be at risk of prosecution? Yes that is the most appropriate defendant as it should have in place procedures to ensure that trainers are competent, that training guides are up to date and reflect best practice, that there is some level of supervision (including encouraging members to say ‘hang on I don’t think that’s safe’ rather than a culture of ‘don’t question’) etc. Having the healthy environment, training and supervision is what is meant to lead to a safety system. So the organisation (at least in Victoria) is at risk if someone gets killed or injured during training regardless of whether it’s a volunteer or a paid trainer.
The situation in New South Wales is similar. There compensation is governed by the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW) so the right to compensation if injured has no relationship with the OHS Act.
On the issue of proseuction under the OHS Act; that was the point in my last post. If it is a volunteer training volunteers then arguably it is not a place of work and the OHS Act doesn’t apply and no-one will be prosecuted, but again, as noted in my last posting, whether a volunteer trainer, training volunteers, could be prosecuted for a breach of the OHS Act would depend on whether the training hall was ‘the place of work’ of someone. Assuming it’s an SES headquarters arguably it is; if there is a paid trainer then unquestionably it is. Whether it is or not makes no difference to the right of an injured volunteer to receive compensation.
I hope that clears up something.
Michael Eburn
30 November
Some interesting food for thought- thanks for the clarification….
An interesting and informative article Michael. Are you familiar with the proposed National OH&S legislation (currently open for public comment), and if so what affect it will have on emergency service volunteers in situations like this?
Steve
I have had a look at the exposure draft of model OHS legislation. The idea, as I understand it, is that once the consultation process is complete, all the States and Territories will be encouraged to pass legislation based on the Model Act. Whether that will happen or not, remains to be seen (the States haven’t adopted the Model Criminal Code and I think only NSW, Tasmania and the Commonwealth have adopted the Model Evidence Act).
In any event the model Act provides that the definition of ‘worker’ includes a volunteer (see ss 4 and 7). If this model is adopted then the position is clear, an organisation that makes use of volunteers must ensure the volunteers health and safety.
Employees also owe a duty to ensure health and safety at work and this is also in the model Act (s 27). This would appear to also apply to volunteers except that they are expressly exempt from these provisions, s 33 says
The effect of the model Act (after a only a preliminary reading) is that it would, if passed, make it clear that organisations that use volunteers must ensure the volunteer’s safety and managers must also use ‘due diligence’ to ensure the safety of volunteers (see ss 8, 18 and 26).
Notwithstanding that volunteers are deemed employees however, the duty on employees (s 27) does not extend to volunteers.
In simple terms, organisations would have to treat volunteers as employees, but volunteers don’t have to behave like employees! If a volunteers is exposed to a risk to health and safety the organisation and its managers (depending on the circumstances) could be prosecuted but a volunteer who fails to take adequate steps to ensure the safety of others, cannot be prosecuted. This would seem to be much the same as the position currently in Victoria, and would clarify the position in New South Wales.
Thanks for raising that issue.
Michael Eburn
3 December 2009
Michael said, “In simple terms, organisations would have to treat volunteers as employees, but volunteers don’t have to behave like employees!”
What a gem that is! Just what we need. It’s bad enough when volunteers roll out that classic, “I’m a volunteer, I’m not doing that!”, now it’s just gonna get worse….. 😉
Perhaps I was a bit flippant there, it has to be remembered that OHS legislation is only one tool that can assist to develop a safety culture. The fact that volunteers can’t be prosecuted (ie subject to criminal penalty) under the Act is surely not too bad as we don’t want volunteers being hauled before the criminal courts; but it doesn’t mean organisations can’t take other action to develop a safety culture and ultimately can take disciplinary action against volunteers who consistently refuse to act safely. The fact that the OHS Act doesn’t apply doesn’t mean internal policy and procedures don’t. Isn’t asking a volunteer to leave a better solution than asking the workforce police to step in?