This is another Work Health and Safety issue from a member of the NSW RFS. My correspondent reports that:
Recently the post below was made in a forum that was discussing the use of non-RFS sourced smoke masks.
“… Volunteers from time to time purchase and use other items of PPE that are compliant with [Australian Standards]… but not on the RFS approved purchasing list. The NSWRFS are bound to government procurement process and utilise many criteria when selecting products for use, such as compliance with NSWRFS specification (sometimes this exceeds the [Australian Standard]), ability for the product to be readily available and have sufficient numbers and into store logistics options, product support, value for money, strength of the companies trading, the list goes on. It is about providing suitable PPE products to meet the high standard of WH&S that the NSWRFS are required to maintain under the WH&S legislation. If you choose to purchase and use a non-complainant piece of PPE and as a result sustain injuries you may implicate not only yourself, but all those around you from your Crew Leader to the Commissioner for not ensuring you have the appropriate PPE under the WH&S legislation.
Whilst the “motherhood” style of this is understood, ie the intention to provide a safe workplace and working environment, the broadness of it concerns me as it may be at odds with, or perhaps overstates the requirements or limitations of WHS with regards to PPE / PPC.
Read in particular the portion in bold, above.
Firstly, the RFS, as much as it thinks it might, does not provide all required PPE. As an example, look at a broad brimmed hat for sun protection. We work often outside and not always directly at fires, and in Australia a broad brimmed hat is necessary for sun protection. The RFS does not supply these items. So I bring my own, it doesn’t work well, I get skin cancer, and I put in a workers compensation claim. Another example, the RFS does not provide folding chairs. I bring a chair or my brigade buys chairs and we use these chairs at staging areas whilst waiting for deployment. I fall out of my chair and get injured, and place a compensation claim. In these two situations the RFS tells me the items does not meet the Australian Standard and I have placed myself, my crew leader, and the service at risk.
Secondly, the RFS sourced item that meets the Australian Standard could still be dangerous or deficient. Going back to smoke protection, the RFS P2 mask is prone to ignition by embers, does not seal well and is ineffective especially for members with facial hair, and there is plenty of anecdotal comments from members that allude to these issues. So a member decides to use an item that does not meet the Australian Standard but is actually safer. The member now theoretically puts himself and the service at risk with those “implications”.
Thirdly, the RFS issues PPC that does not meet the Australian Standard for a task that the RFS allows, for example structural firefighting or village firefighting. The Australian Standard requires a full “bunker suit” style ensemble. The RFS allows members to wear wildland PPC under certain circumstances eg external firefighting (a form of risk management) but it could be seen that the “bunker gear” would be safer and the best risk management.
Fourthly, I am aware of a brigade that in 2009, sourced a “better” smoke mask and approached the RFS Engineering Section for approval. The approval was not given, and instead a reply was given, with words to the effect “that the smoke mask could only be used at the risk of the member, and the service would not accept any responsibility or compensation claims arising”.
The “no fault” scenario of the workers compensation scheme is perhaps ignored in the recent statement, and perhaps in retrospect the communication given in 2009, and the recent statement could be implied to communicate that the member’s perceived negligence puts the member at risk by “implicating” oneself; (Implicating for what, though I ask).
Also, I would suggest that the WHS legislation does not specify any particular PPE/C nor does it imply that the Australian Standard is the measure of being appropriate PPE/C other than that it perhaps it should be “reasonable” which is not defined.
Let us then consider the text in bold, above. It says:
If you choose to purchase and use a non-complainant piece of PPE and as a result sustain injuries you may implicate not only yourself, but all those around you from your Crew Leader to the Commissioner for not ensuring you have the appropriate PPE under the WH&S legislation.
Is that true and if so, implicating oneself, and others, for what?
Workers Compensation
My correspondent is correct that the scheme provided for in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) is a no-fault scheme. A fire fighter is who is injured:
- in the course of fighting a bush fire or carrying out ‘an associated operation or work; or
- when travelling to respond to a fire or as part of that associated operation or work,
is entitled to compensation (ss 7 and 10). There is no question of whether or not it was the fire fighter’s, or someone else’s, fault and there is no discount for ‘contributory negligence’ so the use of ‘non-compliant’ PPE is not relevant in that context.
Work Health and Safety Act 2011 (NSW)
What this must mean is potential prosecution under the Work Health and Safety Act 2011 (NSW). It’s a criminal offence not to comply with one’s duties under that Act and a volunteer is required to ‘take reasonable care of their own health and safety’ and to ‘co-operate with any reasonable policy or procedure …relating to health or safety at the workplace that has been notified to workers’. As my correspondent has also, correctly noted:
… the WHS legislation does not specify any particular PPE/C nor does it imply that the Australian Standard is the measure of being appropriate PPE/C other than that it perhaps it should be “reasonable” which is not defined
The role of Australian Standards
Standards Australia is a company that creates the various standards. In an earlier post (‘Face masks for residents near the Hazelwood Mine fire, Victoria’ (February 26, 2014) I said:
… it may come as a surprise that Australian Standards are not legally binding. There is no general obligation to comply with Australian standards though there may be in specific circumstances. For example a motorcycle crash helmet must comply with Australian Standard 1698-1988 but that is because of a specific rule (Trade Practices Act 1974 – Consumer Protection Notice No. 9 of 1990 – Consumer Product Safety Standard: Protective Helmets for Motor Cyclists) rather than some general obligation to comply with the Australian Standards.
The relevance of the Australian Standards is that if there is an allegation that someone failed to act reasonably, whether that is in a claim for negligence or a prosecution for work health and safety standards, evidence of compliance with (or failure to comply with) an Australian standard may be evidence that the defendant’s response to a risk was (or was not) reasonable. It is not however conclusive evidence, compliance with an Australian standard does not prove a reasonable response to risk; evidence of failure to comply does not prove an unreasonable response to risk. It is just one factor to be considered in all the circumstances.
A search of the Australian Legal Information Institute (AustLII) using the search <“Australian standards” and negligence> brings up 996 cases which may sound like a lot but when one considers that is nearly all Australian tribunal and courts going back about 25 years and, in the case of the High Court, to 1901, it’s not really that many. The cases (having looked at a view from the superior courts, not all 996) do as my correspondent has suggested, they refer to the Australian Standards as evidence, but not conclusive evidence as to what may be required in particular circumstances.
What is required?
From a Work Health and Safety perspective the issue is whether or not the person conducting the business or undertaking (the PCBU) has ‘so far as is reasonably practicable’ taken care to ensure the health and safety of the workers, including volunteers.
If there really is an Australian standard for folding chairs, and a fire fighter has bought one that is not compliant one might infer that it’s not safe; so if a fire fighter is intending to use their homemade dodgy built chair then it would be reasonable for the brigade captain to tell them not to use it; but if it’s been purchased from a reputable supplier there is no reason to think that it’s not safe as a chair (though it may not be safe to carry it in the appliance or use it at a particular staging post because of some issue there, but that’s a different matter). If there is no relevant standard, then ‘non-compliance’ is not an issue.
Where there is a relevant standard one would expect that equipment that does comply with a relevant standard is fit for purpose, but that simply begs the question of what is the purpose that the standard was tested against; an item may comply with the standard and still not be safe for a particular use. .
A piece of equipment may not be approved by the RFS but that does not meant it is not safe. The quoted post says that in selecting equipment the RFS has to consider the
… ability for the product to be readily available and have sufficient numbers and into store logistics options, product support, value for money, strength of the companies trading, the list goes on.
None of those criteria are specifically about safety. So there may be a piece of equipment that is useful and safe but which can’t be obtained, or supplied, by the RFS in a cost effective way. But that does not mean it would be unsafe if a member chose to buy it themselves. The fact that a piece of kit has not been approved, given the factors that they have said they take into account, does not meant that it is not safe. It really is a question of fact and warrants a risk assessment in all the circumstances.
Of course there is a difference between gear that has not been approved and gear that has been specifically prohibited. If there is kit that the RFS has specifically ordered is not to be used as an assessment has indicated it’s not safe for the RFS purposes that is again a different issue and a worker (including volunteer) must comply with those sort of directions to meet their duty under the WHS Act.
Conclusion
The issue is not whether or not an item is compliant or whether or not it is issued, the issue is whether or not it is safe and that is a question that depends on the particular circumstances. The use of non-compliant or non-approved equipment does not necessarily determine whether or not equipment is safe. Even equipment that is compliant and has been issued, may still be unsafe in the circumstances.
Australian Emergency Law 
One could also ask about volunteers supplying their own PPE that is not supplied. An example would be knee protectors or gaters. Will they be ‘Disciplined’ for that?
Then there is the question about whether the supplied PPE is appropriate: Ie SES volunteers wearing Polyester uniforms being asked to support fire crews?
Hi Michael, Its an interesting discussion and I agree its not just about ‘compliance’
However, I would think an organisation has the right to either approve or not approve equipment or ‘limit’ what can be used? Organisations generally have an ‘approved’ list of equipment as there is a life-cycle expectation of maintenance, training, safety and transportation. Just because one firefighter likes a particular type of breathing apparatus doesnt mean that he/she can bring their own. The same goes with items of PPE particularly where an individuals protection is reliant on the interaction of items providing a protective layering effect. I dont think there is a fire service that does not identify what equipment / PPE can be used as they use a standarised approach to allow for other members to be trained to use the equipment if required.
Sometimes I thing the dual cards of ‘workplace health and safety’ and ‘legal ramifications’ are used a tad too often.
I enjoy your posts……Cheers
I agree that organisations can approve or not approve equipment. Failure to wear the approved PPE/PPC or to wear ‘non-uniform’ items may mean that the organisation can take disciplinary action but that doesn’t mean there’s been a breach of the WHS Act. Take for example a uniform organisation where a person is failing to wear the appropriate shirt. The organisation can take action, but wearing a t-shirt instead of the approved dress shirt is not a safety issue.
There are three options; equipment may be authorised, it may be prohibited or it may be neither. If an organisation has actually assessed a piece of kit and determined that it is not safe and not to be used, that is different to a situation where they have done nothing at all. As I said a worker (including a volunteer) is required to comply with the organisations OHS directives (s 28(d)). Further where a PCBU issues personal protective equipment, a worker (remembering worker includes a ‘volunteer’) ‘must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking’ (Work Health and Safety Regulation 2011 (NSW) reg 46). I suspect however that no WorkCover inspector is going to take action against a volunteer who’s bought him or herself equipment, like a face mask that is better than the issued equipment, give we’ve been told it’s not just safety, but ability to acquire and equipment for mass distribution that is also relevant.
It’s also true however, that an organisation like the RFS that owes duties to its workers can and should be able to assess equipment and require its workers to wear that as it means the RFS can be confident it’s meeting its obligations. A workcover inspector would not be interested if a fire fighter bought a better face mask than the one issued by the RFS but the outcome might be different if the firefighter refuses to wear the issued PPE because they don’t like it. There are processes in place for WHS consultation so if fire fighters don’t like the issued PPE they need to raise that through those channels.
In between there is so much equipment that people are carrying that is not issued that it demonstrates that the mere fact that something is not ‘issued’ or ‘approved’ can’t mean you can’t carry it. Volunteers (and paid staff) provide, no doubt, equipment ranging from their socks and underwear, to knives, torches and no doubt other equipment. Some fire fighters are wearing glasses and others may have orthotic shoes. None of those items are approved but that’s not exposing anyone to risk in fact there would be a risk if they did not carry that equipment.
So I agree that ‘Organisations generally have an ‘approved’ list of equipment…’ and it may be a risk to safety not to use that equipment as you say because training depends upon that equipment and having everyone trained in the same equipment is vital. In either case the issue is still whether there is a risk to safety. I agree also that ‘the dual cards of ‘workplace health and safety’ and ‘legal ramifications’ are used … too often’.
The point that I’m trying to make is that a simple statement– if you wear equipment that we haven’t issued approved you won’t get compensation or may be liable – is indeed too simplistic. The issues are more subtle and that, no doubt, can lead to confusion or uncertainty. One might have to make a guess as to whether some equipment is a threat to, or enhances safety. There is no doubt that the safe course is to wear the approved gear, and only the approved gear but as both my original correspondent and my examples above show, no service can really expect that its members are wearing, and carrying, only approved equipment and nothing that’s not approved.
I am a member of the RFS and last year, 2017, I enquired whether I could purchase a helmet (Rosenbauer) for non structural use. I first went through the Head Office who transferred this to my District Office. The reply I received was a bit ambiguous and referred me to the SOPs. SS 5.1.5, 2.3 Bush Fire Helmets (a) Only bush fire helmets approved by the NSW RFS are to be issued.
It does not say what approved is, is it approved by cost, colour or style?
Also unless it was required for special conditions it would not be approved. The person replying then continued on to say “that the SS does not necessarily preclude you from wearing it. It only stipulates that we must only issue RFS approved helmets”.
Continuing on the writer says if I could show that it offered better protection than the ‘approved’ helmet then insurance may not be negated. If I was to be struck on the head by a tree branch whilst wearing an approved helmet I am sure I would sustain the same injuries if I was wearing a helmet that complied too the ISO and EN standards. So how would that negate insurance?
Now when I was reading through the SOP I discovered that the RFS does not supply PPE that complies with their SOP, although it may be only a minor transgression.
So what happens if I wear a non approved helmet will it put at risk my crewleader or my brigade management?
Presumably approved is a brand/style/colour all in one. They issue ‘x brand style helmets’ or some such. They’re not going to approve ‘helmets that cost $x’ or ‘orange helmets’.
The idea that ‘insurance will be negated’ is unlikely to ever be true. Firefighters are covered by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW). It’s a no-fault scheme. Unless you are on a frolic of your own, injuries are covered even one’s the injured person contributes to. Wearing the wrong helmet, or no helmet, will not deny one compensation for injuries sustained.
And if you’re wearing a helmet that meets the standards and is as good as, or better, than the RFS issued helmet it just won’t be an issue. The question of what helmet you are wearing is never going to be a relevant issue.
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“So what happens if I wear a non-approved helmet will it put at risk my crew leader or my brigade management?” Answer – “No”, unless it is obviously not safe enough. So if you’re wearing a cap when you should be wearing a helmet then it may be an issue and it may be an issue why a field officer didn’t pull you up. But if you’ve decided a product, that meets the standards, is designed for the sort of work you’re doing but you just prefer it to the ‘standard issue’ or, more importantly, you want a helmet in circumstances where RFS won’t issue one, then wearing a helmet will not be relevant in any legal proceedings. And if you’re wearing a helmet when the RFS don’t issue one, and it saves you from injury, then that’s all for the good.