This question is timely given the current fire emergencies in WA. My correspondent writes:
One question that I’ve not been able to find an answer for is in relation to Volunteer protections and Emergency Situation declarations here and I was hoping you may be able to shed some light on this!
I know they are both covered under the Emergency Management Act 2005, however I cannot seem to find anything that indicates the protections in Part 9 are only valid if such a declaration is made (particularly considering one of those protections is in relation to normal remuneration whilst attending an ‘emergency’).
An Act of Parliament may be divided into Parts. Those parts may be further subdivided into Divisions. Each separate clause is a ‘section’ and the section itself may have subsections. Each sub-section, section and Division must be read as part of the whole. For example section 91(2)(a)(ii) of the Emergency Management Act 2005 (WA) says ‘the employee carries out the activity on a voluntary basis;’ That is meaningless unless one has read all of s 91(2) which in turn requires one to read all of s 91 and so on. Even so the Act must be read as a whole so one can’t (usually) have an interpretation in one part that is inconsistent with another part. (I say ‘usually’ because you can have inconsistencies if that is the way the Act is really written, but if there are alternative interpretations possible, the one that is consistent with the scheme of the Act is probably the correct one).
My correspondent is correct, both ‘Emergency situation declarations’ and ‘Employment Protection’ are dealt with in the Emergency Management Act 2005 (WA). Emergency situation declarations are dealt with in Division 1 of Part 5. Employment Protection is dealt with in Part 9. The first thing to note is that they are in different parts so, without an express linkage, one can read Part 9 without reading Part 5.
So what does Part 9 say? It says, relevantly, ‘An employee who is absent from the employee’s employment because the employee is carrying out an emergency management response is entitled to be paid by the person’s employer remuneration for the period of the employee’s absence’ (s 92(2)). Further, an ‘employer must not victimise an employee [because] … the employee was temporarily absent from employment because the employee was carrying out an emergency management response’ (s 93(1)).
The critical question is what is ‘an emergency management response’ and does it relate to Division 1 of Part 5? Section 91(2) tells us that, for the purpose of Part 9:
(a) an employee carries out an emergency management response if —
(i) the employee undertakes an activity that involves responding to an emergency;
(ii) the employee carries out the activity on a voluntary basis;
(iii) the employee is a member of, or has a member-like association with, an emergency management agency; and
(iv) the employee was requested by or on behalf of the emergency management agency to carry out the activity or no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made;
(b) an employee does not carry out an emergency management response if the activity involves prevention of, preparedness for, or recovery from, an emergency.
Most readers of this blog will be familiar with the PPRR spectrum, that is emergency management involves prevention, prepration, response and recovery (see also Emergency Management Act 2005 (WA) s 3, definition of ‘emergency management’).
The effect of s 91(2)(a)(i) and 91(2)(b) is that the employment protection only applies during the response phase. Action taken to prevent or prepare for or recovery from the impact of the hazard do not carry the employment protection. Further the person has to be a volunteer member of an established emergency service such as bushfire brigade or the State Emergency Service, and acting at the request of that service.
So far so good, but there is one further complication – what is an ‘emergency’? Section 3 defines words for the purposes of the whole Act. For the purposes of the Act, emergency means ‘the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response’. That means an employee undertakes an activity that involves responding to an emergency’ if he or she:
… undertakes an activity that involves responding to the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response.
Does responding to a tree on a road or a fire in a garbage bin represent an emergency? On one view it does not as it’s a single unit response and one might say that is neither significant nor coordinated. On another view it’s ‘significant’ if the event is so big it needs the emergency service as it can’t be dealt with without them, and it is coordinated because even if only one appliance is responding there is still coordination going on, where the relevant service is monitoring the response, perhaps considering what they might do whilst that crew is engaged should another call for assistance be received etc.
It might make sense to say that the employment protection is not intended to apply in those small scale responses as each brigade should have in place plans to take into account that volunteers cannot readily get away from work but that they should be allowed to go for bigger, more significant events. That interpretation would, in my view, be consistent with the structure of Western Australia’s emergency management legislation. The Emergency Management Act 2005 (WA) sits above the Acts that establish the various emergency services, that is the Bushfires Act 1954 (WA), Fire and Emergency Services Act 1998 (WA) and Fire Brigades Act 1942 (WA). Those Acts govern the normal day to day response of the emergency services, the Emergency Management Act is about the bigger and more significant events. I think it is consistent with the scheme to say that the employment protection provision are only intended to apply to those more significant and larger events. If employment protection was intended to apply to routine, single appliance events, it would be included in those other Acts.
I can’t find any cases where the meaning of emergency in this context has been considered so the issue does remain debatable.
To return to my correspondent’s question, there is no express link between Part 9 ‘Employment Protection’ and Part 5, Division 1 ‘Emergency situation declaration’. There is no need, to understand Part 9, to draw a link so it follows that in my opinion they are not related, that is the employment protection provisions apply whether or not there has been an emergency situation declared. There would be no question that if there is an declared emergency situation, that a response was an emergency management response for the purposes of Part 9, but there can be an ‘emergency management response’ even without such a declaration. Whether a response that involves a single unit is an ‘emergency management response’ is open to question.
It is my understanding that income protection only applies if a state of emergency has been declared. There was several comments when DFES had their concept paper out for discussion last year that no state of emergency had ever been declared for a bushfire (since the Emergency Management act come into force). February 2015 put paid to that, with both Northcliffe and Boddington fires declared states of emergency.
Thanks Ross, you say ‘It is my understanding that income protection only applies if a state of emergency has been declared’ but do you have any reference either to the law or a policy statement that says that and explains why that is the case given the structure of the Act?
Does this also cover volunteers who were absent from work due to fatigue after attending an emergency over night? If I finish at all-night incident and have not had any sleep since yesterday morning, I would be “unfit for work”, yet I am no longer “responding to the occurrence” as per the Act?
(as a side note to the previous comment from Ross, I am also from WA and have heard several volunteers say the same thing – that it had to be declared a state of emergency before the employee protection comes into effect. I wonder if this is a misinterpretation of Part 6 of the Act, where emergency powers are granted to volunteers during a state of emergency?)
It would certainly be arguable. If a person has been working all night and then needs to go home and go to sleep it would be arguable that he or she was ‘was temporarily absent from employment because the employee was carrying out an emergency management response’ (s 93(1)). Ultimately if a person was penalised it would be a matter for a relevant industrial tribunal or court do determine what the legislation is intended to cover. As I say I would think it is arguable that this was intended to be covered.