The Workers Compensation Commission of NSW handed down a decision in the matter of Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCCPD 31 on 31 July.  It appears to me that the lawyers on both sides of the issue may have misunderstood the law as they failed to distinguish between Fire and Rescue NSW and the NSW Rural Fire Service.

Mr Hay was employed by the Commonwealth Steel Company Pty Ltd from 1988 to 1993 as a furnace assistant and later as a machine operator.  He made an application for compensation for work related hearing loss.  Because hearing loss (like other degenerative conditions) occurs over time an applicant can’t say how much of the loss is attributable to different employers if he or she worked in more than one noisy job.  The relevant claim is to be brought against the last noisy employer (Workers Compensation Act 1987(NSW) ss 15 and 17).

Mr Hay was also a volunteer with the NSW Rural Fire Service.  The critical sentence in the Commission’s decision was at [5].  Deputy President Wood said:

It was common ground that as a volunteer fire fighter, Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act. Mr Hay conceded that while fighting fires, he was exposed to excessive noise.

If the Rural Fire Service was the last noisy employer then it was the RFS and not the Commonwealth Steel Company that had to deal with the claim.  (The RFS, it should be noted, was not a party to these proceedings).  We can accept, for the sake of the argument, that Mr Hay ‘was exposed to excessive noise’ as a firefighter.  What concerns me is the comment that ‘It was common ground that as a volunteer fire fighter, Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act’.  To say that it was ‘common ground’ means that the lawyers for both Mr Hay, and for the Commonwealth Steel Company accepted that this proposition was true.  The Commission’s job is to rule on the issues in dispute between the parties.  Because there was no dispute the court didn’t ask itself whether this claim was true, rather it made a decision assuming this proposition was true. It is my view that the claim ‘Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act’ was in law, wrong.

Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) refers to ‘deemed employment of workers’.  ‘Deem’ means ‘regard or consider in a specified way’ (Oxford English Dictionary (online)).  To ‘deem’ someone as an employee means to regard or consider them as employee even if they are not.  The point of having some people ‘deemed’ to be an employee is that it means they are entitled to workers compensation even though they are not, in reality, an employee.  Volunteers are necessarily not employees so if a volunteer is a deemed employee it ensures they get compensation.

Clause 13 of Schedule 1 says:

Fire fighters in fire districts(cf former Sch 1 cl 13)

(1)  A person who (without remuneration or reward):

(a)  voluntarily and without obligation engages in fighting a bush fire in any fire district constituted under the Fire Brigades Act 1989 with the consent of or under the authority and supervision of or in co-operation with:

(i)  any volunteer fire brigade within the meaning of that Act, or

(ii)  the Director-General or any officer of New South Wales Fire Brigades or any member of a permanent fire brigade, or

(b)  is undergoing training for the purposes of fighting bush fires in those circumstances,

is, for the purposes of this Act, taken to be a worker employed by the Director-General of New South Wales Fire Brigades.

(2) …

(3)  In this clause:

bush fire means a fire burning in grass, bush, scrub or timber and any fire arising from such a fire.

fighting, in relation to a bush fire, includes any reasonable act or operation performed by the person concerned at or about the scene of or in connection with a bush fire, which is necessary for, directed towards or incidental to the control or suppression of the fire or the prevention of the spread of the fire, or in any other way necessarily associated with the fire.

Anyone from one of the New South Wales fire services should see the problem.

Fire and Rescue NSW is the service established ‘for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district’ (Fire Brigades Act 1989 (NSW) s 6).  The Rural Fire Service operates within rural fire districts (Rural Fires Act 1987 (NSW) ss 6 and 9).

The Fire Brigades Act 1989 (NSW) s 3 defines a volunteer fire brigade as ‘any association of persons for which an approval as a volunteer fire brigade is in force under section 9, but does not include a rural fire brigade’ (emphasis added).  In Fire and Rescue fire stations that are staffed by both permanent and retained firefighters, it is considered that there are two brigades, the permanent brigade and a volunteer brigade, even though Fire and Rescue ‘volunteers’ are in fact paid a retainer for their services (see Fire Brigades Act 1989 (NSW) s 3 and Who’s the officer in charge? – NSW Fire and Rescue (September 3, 2013)).

Rural fire brigades, on the other hand, are established by the Rural Fires Act 1997 (NSW) Part 2, Division 3.

Clause 13 of Schedule 1 could apply to an RFS volunteer where the RFS brigade is operating in a fire district to assist Fire and Rescue NSW but I don’t think that’s the intention of the Act.  Even if it did apply then the deemed employment would only be for the period of that operation, and not for the entire period of the person’s volunteering with the RFS.

What follows is that if Mr Hay was a member of the Rural Fire Service Clause 13 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) does not apply to him.  That clause is there to ensure volunteers with Fire and Rescue NSW get workers compensation.  Compensation for volunteers with the Rural Fire Service is governed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  That Act creates a statutory scheme but does not deem the volunteers to be employees.

Further, if I’m correct, Mr Hay’s last noisy employer was the Commonwealth Steel Company. Even if he was exposed to noise as an RFS volunteer, the RFS was not his deemed employer.  If that’s correct then the Commission, that was asked to determine ‘whether Commonwealth Steel was the “last noisy employer” for the purposes of s 17(1) of the 1987 Act’ was not told the correct legal position.

Conclusion

The lawyers for both Mr Hay and the Commonwealth Steel Company Pty Ltd appear to have missed the fact that in New South Wales there are two fire services – Fire and Rescue NSW and the NSW Rural Fire Service.  They have seen a reference to Fire Brigades and fire fighter in Clause 13 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and assumed that applied to a volunteer in the Rural Fire Service.  That was, in my view, an error.  If I am correct the mistake has corrupted the decision of the Workers Compensation Commission.  The arbitrator at first instance, and then the Deputy President on appeal, accepted the position of the lawyers and did not look at the operation of the Fire Brigades Act vis-à-vis the Rural Fires Act.  Again, if I’m correct, it means the decision in Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCCPD 31 was based on incorrect law.  That does not mean the outcome was wrong because the case turned on other issues and it may be that this issue ended up not being a critical factor in the final decision, but it is a matter of concern that a tribunal has made a decision, at least in part, on an incorrect application of law.