This question comes from Western Australia and is about Standard Operating Procedures or SOP’s.  My correspondent says:

I am an ordinary volunteer in a bush fire brigade; I hold no office.  Our Shire has various SOPs which, having been introduced and ratified, are then wholly or partly ignored.  Our Shire’s Fire Chief (a volunteer) is reluctant to encourage (still less enforce) compliance for fear of alienating the volunteers who respond to fires.

The result seems to be a happy but non-compliant force of volunteers who practice lower standards of safety, efficiency and general professionalism than they would if they complied with the SOPs.

By not prosecuting into practice the SOPs that he has steered through the Shire’s administration, does our Fire Chief place himself in a vulnerable legal position? And is the Shire also vulnerable?

Western Australia has some interesting provisions.  First the bush fire brigades are not operated by a central agency (like the RFS in NSW, the CFA in Victoria or the CFS in South Australia).  In WA bush fire brigades are operated by the local councils (Bush Fires Act 1954 (WA) s 41).   The second interesting observation is that WA has not yet joined the national work health and safety scheme. (Itwill be joining the national scheme and the Minister has introduced the Work Health and Safety Bill 2014 but the closing date for public comment on that Bill is 30 January 2015 so the implementation is still someway off – see SafeWork Australia ‘Jurisdictional progress on the model work health and safety laws’).  Until that new Bill becomes law, the Occupational Health and Safety Act 1984 (WA) is the relevant law.

So, ‘By not prosecuting into practice the SOPs that he has steered through the Shire’s administration, does our Fire Chief place himself in a vulnerable legal position?     And is the Shire also vulnerable?’

Occupational Health and Safety

As discussed in earlier posts on this blog, the national WHS law includes ‘volunteer’ in the definition of ‘worker’ but the Western Australia Act does not.  The WA law says (s 19) ‘An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees ) are not exposed to hazards …’   A shire is no doubt an employer, but it is not an employer of its volunteer firefighters including the ‘Shire’s Fire Chief (a volunteer)’.  An employee also has obligations including obligations to comply with directions from their employer (s 20), but volunteer firefighters are not employees of the shire.

A person that has control of a workplace must take care to protect non-employees who are at the workplace as part of their work are not exposed to risks and that access to the workplace is safe (s 22).  This section really relates, for example, to a landlord who leases a building out and has a duty to take care that the building does not pose a risk to the tenants who work there.  It is not really applicable in this context where the volunteers are not there for ‘work’ and if no-one is there for work, it’s not a ‘workplace’..

It follows that because volunteers are not employees the OHS Act does not apply either to impose a duty on the council or on the volunteers.  It follows that neither the shire nor the fire chief can be prosecuted under that Act for failure to enforce the SOPs.  Neither the Fire Chief nor the shire are in a vulnerable position with respect to OHS law (but that will change with the passage of the 2014 Bill).

Common law

The shire must owe a common law duty of care to its volunteers.  Fundamentally the volunteers have signed up with the Council so they are dependent on the council for equipment and PPE, they represent the council when they turn out (they are not turning out as individuals but the relevant shire fire brigade), they are tasked by the council or fire control centre and they are not putting out fires in their own interest but to allow the shire to meet its obligations.  There can be no doubt that the shire has to take reasonable care to ensure the safety of its volunteers taking into account all the relevant features in any particular case.    The issue of SOPs, the provision of training and equipment, the establishment of command and control arrangements are all part of how the council takes steps to try to ensure, so far as is reasonably practical, that its volunteers are safe.  If that’s true and if the SOPs are the reasonable manner to enhance safety, failure to ensure that they are implemented would be negligent and the council could be liable; but that liability is fairly theoretical as discussed below.

The Fire Chief is part of that command and control system.  He may also have a duty of care toward fire fighters under his control but the chances of him being personally liable are virtually zero; no-one in their right mind is going to sue a volunteer fire captain as he is not going to have the resources to pay.  Rather they would sue the shire on the basis that the fire chief is their servant or agent, the council as such cannot control its firefighters, it can only do that through its staff and people such as the volunteer fire chief.  If the fire chief knows there is a safety breach and does nothing to stop it then he is for all purposes the council and so the council will be liable.

Assume, however, that a firefighter is injured or killed, would they (or their estate) sue the council?  Local governments that maintain a bush Fire Brigade are required to hold a policy of insurance to pro­vide compensation for volunteer fire-fighters engaged in “normal brigade activities” (Bush Fires Act 1954 (WA) s 37).   A fire-fighter is entitled to compensation as if the fire-fighter was a “wor­ker” within the meaning of the Workers’ Compensation and Injury Management Act 1981 (WA).    The Workers Compensation scheme is a ‘no fault’ scheme, that is one does not have to sue anyone or prove negligence to recover though a person can sue for negligence in certain circumstances but that is generally only applicable or worthwhile for catastrophic injuries with significant losses.

One of the main aims of the national Work Health and Safety scheme is to ensure that agencies that use volunteers have the same obligation to ensure their safety as they would if they are employees.  Pending the passage of the Work Health and Safety Bill 2014 (WA) that is not the case in Western Australia.   In the circumstances described I am of the view that:

  1. The Fire Chief is not in a vulnerable legal position as he is not bound by the Occupational Health and Safety Act 1984 (WA) as he is neither an employee of the shire nor an employer of the firefighters under his command. The criminal provisions of that Act will not apply to him.
  2. He is also not in a vulnerable position because even though he may, in theory, be liable in negligence for failing to enforce the safety standards it is unlikely that anyone would sue him (he couldn’t afford it) or could sue him (as the shire would be vicariously liable for his negligence).
  3. The council could be vulnerable to a claim in negligence for not ensuring its SOPs are enforced, but if any fire fighter gets killed or injured their right to compensation would be determined as if they were a worker under the Workers’ Compensation and Injury Management Act 1981(WA).  The shire is required to have relevant workers’ compensation insurance and it would be that insurer, rather than the council, that would be liable (but that may affect their premiums next year).
  4. The shire would not be liable to criminal prosecution under the OHS Act as the fire fighters are not employees.