Today’s correspondent has:
… a question about Work Cover for Qld SES volunteers. Are volunteers covered on the road to training or activation? And do they need to have signed-on to SES’s on-line member hub to be covered?
Volunteers are not employees so will not be covered by workers compensation legislation without some special rule. In New South Wales there is there is the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW) to ensure that volunteers with the SES, RFS and others are entitled to the equivalent of workers compensation. For volunteers with NSW Fire and Rescue and NSW Ambulance, they are deemed to be employees by virtue of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) Schedule 1, cl 13 and 16 respectively.
Workers Compensation insurance for Queensland SES Volunteers
In Queensland the SES Operations Doctrine – Busniess [Sic] Management Directives BMH 25.0 Workers’ Compensation (Valid from 03/03/2014) (available at https://www.qfes.qld.gov.au/about/training/ses-op-doc/Documents/BMH_25_0_Workers_Compensation_v2.pdf) says:
Under Section 142 of the Disaster Management Act 2003, the Chief Executive of Queensland Fire and Emergency Services must enter into a contract of insurance with a workers’ compensation provider that will cover SES members as they perform their approved functions, or participate in other activities related to their carrying out of their allocated functions or disaster operations. This might include, for example, training activities, community awareness sessions and operational duties.
This was correct (see below) but is now wrong. Today, the Disaster Management Act 2003 (Qld) s 142 says:
The chief executive must enter into a contract of insurance with WorkCover or another entity to insure persons required to give reasonable help under section 77(1)(q) or 112(3)(g).
Section 77(1)(q) refers to persons who are required to assist a district disaster coordinator or a declared disaster officer during a declared disaster situation. That is hardly relevant to SES members conducting training or providing a response during normal storm or other operations. Section 112(3)(g) also refers to a person required to give reasonable help to a person exercising powers under s 112. Again not relevant to SES members in the course of their normal duties. Section 142 of the Disaster Management Act 2003 used to, but no longer has anything to do with insuring SES volunteers.
The relevant section is now section 154C of the Fire and Emergency Services Act 1990 (Qld). That section says:
(1) The commissioner must enter into a contract of insurance with WorkCover or another entity to insure the following persons –
(a) ESU members;
(b) SES coordinators;
(c) SES members.
(2) The contract of insurance must cover the persons mentioned in subsection (1) while they are –
(a) performing a function under this Act in their capacity as an ESU member, SES coordinator or SES member; or
(b) involved in another activity related to the carrying out of disaster or emergency operations, an ESU function or an SES function.
Example for paragraph (b) –
training for disaster or emergency operations
(3) In this section:
WorkCover means WorkCover Queensland established under the Workers’ Compensation and Rehabilitation Act 2003.
The content of this section was previously included in the Disaster Management Act 2003, section 142.
The section above says that the Commissioner must enter into an insurance contact with WorkCover. The Workers Compensation and Rehabilitation Act 2003 (Qld) s 13 provides that WorkCover may enter into that contract with the Commissioner. An SES member is only covered however if they are (s 13(3)):
… engaged in disaster operations or performing an emergency function, or participating in an activity arising out of, or in the course of, disaster operations or performing an emergency function, including training.
Disaster Operations means ‘means activities undertaken before, during or after an event happens to help reduce loss of human life, illness or injury to humans, property loss or damage, or damage to the environment, including, for example, activities to mitigate the adverse effects of the event’ (Disaster Management Act 2003 (Qld) s 15). It does not say that those operations are limited to or that the definition only applies during a declared emergency, rather they are operations in preparation for or in response to an ‘event’. For the purposes of the Act, ‘event’ means (s 16):
(a) a cyclone, earthquake, flood, storm, storm tide, tornado, tsunami, volcanic eruption or other natural happening;
(b) an explosion or fire, a chemical, fuel or oil spill, or a gas leak;
(c) an infestation, plague or epidemic;
(d) a failure of, or disruption to, an essential service or infrastructure;
(e) an attack against the State;
(f) another event similar to an event mentioned in paragraphs (a) to (e).
‘Emergency function’ is not defined. One could infer that emergency functions include the functions of the State Emergency Service listed in the Fire and Emergency Services Act 1990 (Qld) s 130.
What follows, I suggest, is that Queensland SES volunteers are covered for workers compensation when attending to their regular SES duties including training. The critical issue is therefore whether travelling to training or to the SES shed to respond to an emergency, is the member ‘involved in another activity related to the carrying out of disaster or emergency operations … or an SES function’ (Fire and Emergency Services Act 1990 (Qld) s 154C).
The intuitive answer is that they must be. Travelling to training or to response is ‘related’ to the activity for which you are training or responding.
There is further support for that conclusion in the Workers Compensation and Rehabilitation Act 2003 (Qld). Section 12 says that a volunteer is to be entitled to ‘weekly payments of compensation …’ and ‘for all other entitlements – the same entitlements to compensation as a worker’.
A worker is entitled to workers compensation if they are ‘on a journey between the worker’s home and place of employment’ (s 35). One has to read ‘employment’ in context. The volunteers ‘place of employment’ is wherever the SES requires them to go. As a worker is entitled to compensation on a journey, a volunteer who is entitled to ‘the same entitlements to compensation as a worker’ must also be entitled to those same benefits.
Do members need to have signed-on to SES’s on-line member hub to be covered?
The answer is ‘no’. I’m not sure how the ‘on-line’ hub works and whether members are expected to log on and record that they are attending before heading off to the shed, but it doesn’t matter. They are entitled to compensation if they are injured on a journey ‘between the worker’s home and place of employment’ (s 35). The question ‘were they on such a journey?’ is what we lawyers would call a ‘question of fact’ (not a question of law). If they were travelling to training or in response to a call out they are covered. The value of being logged in or having signed on is that it is evidence that this was a legitimate journey. If you are not signed in, there could be an argument – is that what you were really doing? If you are signed in then the insurer is much more likely to accept, without question, that this was part of covered journey. But that’s all it is, evidence. If the normal practice is to ‘log in’ at the shed, then people driving to the shed, either to train or respond, would never be covered as they can’t sign in until they get there.
If people sign in on a phone app or computer before leaving home, then a volunteer would need to explain why they hadn’t done so and persuade the insurer that is where they were going, not that they were driving past the shed on the way to the supermarket, had an accident and have decided to ‘try it on’.
Being ‘signed in’ will make any application easier, but does not conclusively answer the question – were you on a relevant, compensable journey.