This question comes from a volunteer with the RFS who tells me:
Over the last 2 days there has been a very heated debate on social media about the wearing of seatbelts in RFS vehicles. The last few comments are starting to debate the applicability of NSW Road Rules Reg 267 (5). The full thread can be found here [link to RFS Facebook page].
The exemption seems to be quite explicit but the RFS SOP is more restrictive and that in doing so, is compliant with the relevant Acts underpinning it. Common sense aside (i.e. if available, why wouldn’t you wear a seat belt?), if tested, what would you consider to be the likely outcome of weighing the different rules, laws, guidelines etc against each other. I would imagine that WHS would also need to be taken into consideration.
The link that I was given was to private group on Facebook and as I’m not a member of that group I was not able to read the discussion or any part of it; so I will do my best to infer the issues.
The starting point is the Road Rules 2014 (NSW) (and yes I note they are now the Road Rules 2014, not the Road Rules 2008 to which I have previously referred. The new version came into force on 1 December 2014). Rule 267 is headed ‘Exemptions from wearing seatbelts’. Subrule 5 says:
(5) A person is exempt from wearing a seatbelt if:
(a) the person is a passenger in or on a police or emergency vehicle, and
(b) either:
(i) if the vehicle has 2 or more rows of seats-the person is not in the front row of seats or there is not a seating position available for the person in another row of seats, or
(ii) if the vehicle is a police vehicle and has a caged, or other secured, area designed for the carriage of passengers-the person occupies a seating position in that area.
We can note, firstly, that s 5(b)(ii) is not relevant, as we’re not talking about a police car.
To gain the exemption first the person must be a passenger in an ‘emergency vehicle’. An emergency vehicle is a vehicle driven by an emergency worker. An emergency worker includes:
a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency … (Road Rules 2014 (NSW), Dictionary, definition of ‘emergency worker’)
The NSW Rural Fire Service is a fire service operated by NSW Government agency but the transport has to be ‘in the course of an emergency’. I have previously noted that the definition of ‘emergency’ for the purposes of this rule cannot be the same as the definition used in the State Emergency and Rescue Management Act (see NSW SES Emergency and Senior Emergency Officers, and the police – Part 2 (July 15, 2014)). Without clarifying what ‘emergency’ means, we can infer that responding to a fire call is an emergency, going to the shops, a training exercise, or the local school fete is not. If it’s not an emergency, the exemption does not apply.
If it is an emergency the exemption applies but if the vehicle has 2 or more rows of seats, the passenger
- must not be in the front row of seats or
- if they are in the front row, there is nowhere in any other row where they could seat (ie all the other seats are taken).
It should also be noted that the exemption applies to the passenger, it does not say it applies to the driver.
All of this makes sense given the variety of circumstances where this exemption can apply. Remember it applies to police and emergency vehicles, so it’s relevant to a police vehicle with a prisoner, an ambulance with a patient, a fire truck where fire crews are putting on BA, or the like. In all those circumstances there would appear to be no need to exempt the driver from the obligation to wear their seatbealt but the passengers may be different.
So let us assume that the passenger is exempt. He or she is only exempt for the purposes of the Road Rules, so they do not get a traffic infringement notice for the failure. Naturally the Road Rules take precedence over a Rural Fire Service SOP but only if one can’t comply with both. In short the RFS can impose a restriction that is tougher than the Road Rules but they can’t give an exemption that isn’t in the Rules. So the RFS can, despite regulation 267(5) say that they require all passengers to wear a seat belt. What they cannot do is say that a passenger does not have to wear a seat belt in circumstances where reg 267(5) does not apply.
The first question therefore was
The exemption seems to be quite explicit but the RFS SOP is more restrictive … if tested, what would you consider to be the likely outcome of weighing the different rules, laws, guidelines etc against each other?
An SOP that is more restrictive than the regulation is no problem. The passenger who fails to wear their seatbelt but who complies with the regulation would still have a defence against a traffic ticket, but could be subject to internal discipline for failing to comply with the RFS SOP.
If there were an accident and the passenger were injured, he or she may seek compensation under the Motor Accidents Compensation Act 1999 (NSW). That Act says that there must be a finding of contributory negligence if the injured person was ‘at the time of the motor accident, not wearing a seat belt when required by law to do so’ (s 138(2(c)). If regulation 267(5) applies, then the passenger in an emergency vehicle is not required by law to wear a seat belt so this automatic finding of contributory negligence will not apply.
Finally then there is the issue of Work Health and Safety. It is well know that a Person Conducting a Business or Undertaking (the PCBU) but take reasonable steps to ensure the health and safety of workers and those affected by their work. What is reasonable requires a consideration of:
(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. (Work Health and Safety Act 2011 (NSW) s 18).
We understand that wearing a seat belt is designed to reduce the risk of injury in the event of a collision but there may be good reasons to exempt a passenger. A paramedic doing CPR in the back of an ambulance cannot reasonably wear a seat belt. Prisoners in police wagons are not issued with a seat belt. Fire fighters in modern urban appliances may have seats that allow them to sit in them with their BA but that may not be true for RFS village firefighters. All sorts of circumstances can be imagined.
The presence of regulation 267(5) says that the passenger does not commit an offence under that regulation, not that they don’t have to wear a seat belt for other reasons. As noted the RFS can have an SOP that is more restrictive than the regulation and they may well take that action because, considering all of the factors above, that the benefit of not wearing the belt exceeds the risk. The exemption for fire fighters does not exempt the RFS from the need to do a risk assessment under the WHS Act.
For the purposes of the WHS legislation a volunteer is a ‘worker’ and must comply with the duties that are imposed upon a worker. These include a duty to ‘ comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act’ (Work Health and Safety Act 2011 (NSW) s 28). Failure to comply may lead to criminal prosecution.
If the RFS have directed that seat belts are to be worn despite regulation 267(5) a fire fighter who fails to wear his or her seat belt may well have a defence to a traffic infringement notice, but that regulation would not provide a defence to an action under the WHS Act.
Conclusion
To come back to the question asked ‘if tested, what would you consider to be the likely outcome of weighing the different rules, laws, guidelines etc against each other?’ The effect of reg 267(5) is to exempt a passenger in some circumstances from the need to comply with the other rules that require a person to wear a seat belt. It does not exempt the RFS to do a risk assessment on the practice and to take steps to ensure the safety of workers including volunteers. If their response is to require fire fighters to wear a seat belt even though reg 267(5) says they don’t have to, the fire fighters have to comply both to meet their obligation to comply with the service’s directives (Rural Fires Regulation 2013 (NSW) Reg 13) and to meet their obligation to ‘ comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act’ (Work Health and Safety Act 2011 (NSW) s 28).
Australian Emergency Law 
Further to this post I received the following comment by email:
It’s true that in my post I did not refer to the actual SOP but I do note that my original correspondent wrote that ‘the RFS SOP is more restrictive’ than the exemption contained in the Road Rules, and indeed it is. Remember the Road Rules says that a passenger in an emergency vehicle is not required to wear a seat belt, and that could apply on the fire ground or travelling from the station to the fire. The RFS SOP quoted above is more restrictive saying that members are required to wear a seat belt ‘when reasonably practical to do so’.
There are exemptions but not that (b) and (c) are not unique to the RFS, they are exceptions that are contained in the Road Rules (see Road Rules 2014 (NSW) rules 267(3A) (exemption on medical grounds) and 264(2)(a) (exemption for the driver when the vehicle is being reversed).
So let us focus on circumstance (a) that is ‘Personnel directly involved in fire suppression activities from the rear of moving vehicles’. They are exempt from the obligation to wear a seat belt by the operation of both rule 267(5) and the RFS SOP so where does that leave the WHS laws?
Work Health and Safety Law requires the PCBU (in this case the RFS) to ‘ensure, so far as is reasonably practicable, the health and safety of’ the volunteers (Work Health and Safety Act 2011 (NSW) s 19). What is ‘reasonably practicable’ has to take into account the task at hand. Fire fighters would be exposed to less danger if they were not allowed to fight fires, but that is hardly ‘reasonably practicable’. What there needs to be is evidence of some risk assessment – it’s dangerous to fight fires from the rear of moving vehicles but probably less dangerous than fighting fires from the ground (or at least there are different dangers). One could put all fire fighters in the sort of appliances used by airport firefighters that allow you to fight the fire from within the cabin, but replacing all RFS appliances with those that sort of gear would be a ‘cost [that] is grossly disproportionate to the risk’ (Work Health and Safety Act 2011 (NSW) s 18).
Let us assume that the RFS has done an appropriate risk assessment and that is reflected in the SOP – in essence wear your seat belt, regardless of what Road Rule 267(5) says, except in circumstances permitted by the SOP paragraph 1.5. If that risk assessment is ‘reasonable’ then the RFS have met their obligation under s 19.
A worker (including a volunteer) is required to ‘comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with … [the Work Health and Safety] Act’ (Work Health and Safety Act 2011 (NSW) s 28(c)). If you comply with the SOP you are complying with their instruction.
If you fail to comply, eg by keeping your seat belt on even when reversing, that is fine as you are not increasing your risk.
If you fail to comply by refusing to wear your seat belt at any time even though it is ‘reasonably practical to do so’ then you have failed to comply with a reasonable instruction.
If you’re the brigade captain and:
• you are aware that your members are not complying with the SOP;
• senior officers are also aware and they have counselled you on the need to ensure compliance and perhaps offered some assistance to help you in that regard;
• you refuse to take the action you have been asked or directed to take; and
• you actually encourage your members not to wear seat belts telling them that in your view it’s unnecessary or more dangerous to wear them than not wear them
then you might, at least in theory, find yourself subject to prosecution under the WHS laws for failing to comply with your duties as a volunteer.