This question comes from a member of the NSW State Emergency Service.
I have been made aware that current Workers Compensation Legislation may discriminate against volunteers in terms of entitlements compared to paid workers. For example volunteers are not entitled to reimbursement of re training costs, they are not eligible for workers compensation benefits until liability is determined (i.e no provisional liability provisions apply) and there is no obligation or mechanism for an employer to provide the volunteer with suitable duties when they are certified as fit for suitable duties whilst they are recovering. This potentially leaves volunteers who are injured in their work with the volunteer organisation out of pocket and exposed to considerable personal expenses and costs whilst their claim is being assessed.
Would you be able to confirm, clarify this anomaly which I find perplexing considering the new WHS legislation was designed to ensure all ‘workers’ had the same protections and obligations ?
We all know by now that the Work Health and Safety Act 2011 (NSW) and its equivalent in most other states and territories has expanded the definition of worker to include volunteers. The important point to note however, is that the Work Health and Safety Act and workers compensation are not the same thing. The inclusion of volunteers in the definition of worker in the Work Health and Safety Act only applies to that Act (see “What does it mean to be a ‘worker’” February 19, 2015, )
In New South Wales workers compensation is governed by the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). These Acts provide for compensation for people injured in the course of their employment. For volunteer firefighters and emergency service workers the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) extends some of the workers compensation provisions to volunteers even though they are not employees of the fire or emergency service for which they volunteer.
Sections 10 (for firefighters) and 26 (for emergency service and rescue association workers) say that a volunteer firefighter, emergency service worker or rescue association worker:
… who has received an injury (and, in the case of …[their death, their dependants]) shall be entitled to receive compensation as follows:
(a) where death results from the injury-the compensation payments prescribed by paragraphs (a) and (b) of section 25 (1) of the Principal Act,
(b) where total or partial incapacity for work results from the injury-the weekly payments of compensation prescribed by Division 2 of Part 3 of the Principal Act,
(c) where medical or related treatment, hospital treatment, occupational rehabilitation service or ambulance service becomes necessary as a result of the injury-the benefits prescribed by Division 3 of Part 3 of the Principal Act,
(d) where the worker receives an injury mentioned in the Table to Division 4 of Part 3 of the Principal Act-the compensation prescribed by that Division (including compensation for any pain and suffering resulting from that injury).
The ‘Principal Act’ is the Workers Compensation Act 1987 (NSW) (see Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 3, definition of ‘Principal Act’).
- Section 25 of the Principal Act provides for lump-sum payments for the death of a worker.
- Division 2 of Part 3 of the Principal Act provides for ‘Weekly compensation by way of income support’.
- Division 3 of Part 3 of the Principal Act provides for ‘Compensation for medical, hospital and rehabilitation expenses etc’.
- Division 4 of Part 3 of the Principal Act deals with ‘Compensation for non-economic loss’ (ie awards to reflect the pain and discomfort caused by injuries).
Let me return to the original question where my correspondent said that, as he understands it, volunteers are:
- not entitled to reimbursement of re training costs,
- not eligible for workers compensation benefits until liability is determined (i.e no provisional liability provisions apply) and
- there is no obligation or mechanism for an employer to provide the volunteer with suitable duties when they are certified as fit for suitable duties whilst they are recovering.
Training costs
Volunteers are entitled to compensation for rehabilitation expenses under ‘Division 3 of Part 3 of the Principal Act’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) ss 10(c) and 26(c)). Division 3 of Part 3 says (at s 60) the ‘employer’ (in this case WorkCover as the insurer for their emergency service) is to ‘pay, in addition to any other compensation under this Act, the cost’ of a necessary workplace rehabilitation scheme which is
a return-to-work program with respect to policies and procedures for the rehabilitation (and, if necessary, vocational re-education) of any injured workers of the employer. An employer’s return-to-work program must not be inconsistent with the injury management program of the employer’s insurer and is of no effect to the extent of any such inconsistency’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) ss 10(c) and 26(c), Workers Compensation Act 1987 (NSW) ss 59 and 60 and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 52).
These provisions would cover ‘training costs’ if they were necessary as part of a return to work program.
Provisional Liability
This is governed by the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Under that Act a workers compensation insurer has to commence weekly payments to an injured worker within 7 days of receiving the claim (ss 267, 274 and 275). The insurer can also accept provisional liability for medical expenses up to $5000 (s 280). Do these provisions apply to a volunteer emergency service worker?
Both the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) and the Workers Compensation Act 1987 (NSW) set out entitlement to compensation, but not the process of making a claim. The claims process is provided for in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (see Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 29). It follows that Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), dealing with claims and including the provisions on provisional liability must also apply to claims under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.
Suitable duties
The obligation upon an employer to provide suitable duties for an employee is found in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 49. That section says:
If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker.
This section is not picked up by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 presumably because the fire or emergency service is not the volunteer’s employer and could not provide that alternative work. I do note however that WorkCover, administering the compensation scheme for volunteers, does have to provide workplace rehabilitation services (as discussed, above) and would have to make up the loss of income (subject to the various weekly limits in the 1998 Act).
Given that the volunteer is not injured by their employer, the employer could not be bound by s 49 so could, presumably move to dismiss the employee/volunteer if they are no longer able to do their work. If, however, the employees retraining costs and/or lost income are being met by the Emergency and Rescue Workers Compensation Fund, the employee may have grounds to allege that such action constitutes an ‘unfair dismissal’ (Fair Work Act 2009 (Cth) ss 379-405). That is something that would have to be considered on a case-by-case basis.
Conclusion
My correspondent wrote and said
I have been made aware that current Workers Compensation Legislation may discriminate against volunteers in terms of entitlements compared to paid workers. For example volunteers are not entitled to reimbursement of re training costs, they are not eligible for workers compensation benefits until liability is determined (i.e no provisional liability provisions apply) and there is no obligation or mechanism for an employer to provide the volunteer with suitable duties when they are certified as fit for suitable duties whilst they are recovering.
It is my opinion that volunteers
- Are entitled to have WorkCover pay for ‘necessary workplace rehabilitation’ which could include retraining;
- The provisional liability provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) do apply to claims for compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW); and
- There is no obligation upon the employer, WorkCover or the emergency service for which the member volunteers to provide ‘suitable employment’ for the injured volunteer/worker.
Warning and disclaimer
No-one should ever rely on the general discussion that takes place on this blog in lieu of particular advice on their particular circumstances. That is particularly true in the context of personal injuries claims that are complex (as this answer shows) and depend very much on the facts of each case. Volunteers seeking compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) should understand that the determination of compensation is not a matter for their service but WorkCover. WorkCover will, like any insurer, seek to apply the law and ensure that it pays only that which it is required to pay. Accordingly any volunteer who is dissatisfied with a decision of WorkCover should seek independent legal advice. There are many solicitor firms that specialise in workers compensation and personal injuries compensation. Most of these firms offer a free first consultation and also operate on a ‘no win no fee’ basis. Any volunteer has been injured should consider consulting one of these firms for specific advice on their rights and entitlements and to ensure they comply with these time limits and processes must be met in making a claim.
Australian Emergency Law 
“current Workers Compensation Legislation may discriminate against volunteers in terms of entitlements compared to paid workers.”
Yeah? Fair go mate. Volunteers are covered for journey claims. A huge number of emergency service agency staff no longer are. If you (volunteer) and I (staff) travel to a meeting together and have a prang, you’re covered and I’m not.
Journey claims for employees are still covered – see Workers Compensation Act 1987 (NSW) s 10.
How does Krambach Service Station v Wickenden (2014) NSWWCC PD13 affect this?
It showed that in general, driving home from work as you do each day, is NOT covered under S10. This case only succeeded as the employee was required to undertake the journey at an unusual time (night) due to employment changes.
http://www.austlaw.com.au/austlaw-blog/workers-compensation-journey-claims
My employer and my union have advised that most staff are NOT covered for journey claims from home to work, unless they are “firefighters,” or “paramedics,” definitions that apply only to some staff of the agency.
It’s true that the workers compensation laws were changed but police, fire fighters and paramedics were exempt from those changes (see ‘Fire fighters and paramedics exempted from workers compensation changes‘ (June 22, 2012) and ‘Who is a firefighter in NSW?‘ (November 30, 2012)).
Even so it remains the case there are provisions for journey claims. Section 10 says that journey claims are covered and a relevant journey includes ‘the daily or other periodic journeys between the worker’s place of abode and place of employment’ (s 10(3)(a)). Section 10(3A) adds a further rider, it says ‘(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose’. It follows that indeed the normal daily journey between home and work is not covered for Workers Compensation. If you’re travelling to a meeting during your normal business hours to your normal place of work you may not be covered, but if your travelling say from your district office to a brigade HQ or after hours, then you will be covered as are the volunteers (WORKERS COMPENSATION (BUSH FIRE, EMERGENCY AND RESCUE SERVICES) ACT 1987 – SECT 8 and 9). Equally you’ll be covered travelling to a fire, as are they. Even if there is a difference I don’t think it denies the validity of my correspondents concerns that if the situation had been as he believed it to be, ‘Workers Compensation Legislation may discriminate against volunteers in terms of entitlements compared to paid workers’. It may also ‘discriminate’ against staff if volunteers get some benefits that they don’t, but it may also be the case that discrimination is only relevant if like is not treated alike, and the issue of volunteers and staff may not be comparing ‘like with like’.
Interesting blog Michael. The cynic in me however begins to wonder why one would volunteer if no one will help them return to work in some capacity or under an alternative work arrangement (Opinion #3).
The recovery road from an injury can be incredibly long, hard and lonely and it is well known that returning to work in some form is very good for the injured person in terms of mental wellbeing….
Luke, it’s not to say someone won’t help them, just that for example, their employer is not legally required to. People can chose to do many things they are not required to do.
As a further question.
The demographic where I reside is one of high unemployment and there is also a large number who are around or post retirement age.
How does this relate to people in those situations?
People who are unemployed (either because they can’t find work or have retired) will be covered. They will receive compensation to cover medical and treatment expenses and lost income if indeed they have lost income. If they don’t lose any income because their unemployment or superannuation continues then there is nothing to compensate.