Today’s question comes from WA where
… volunteers [are] called to do outstanding jobs with SJA WA in sub centres which are manned by Paramedics and Volunteer Ambulance Officers. In many instances these volunteers are completing these outstanding jobs in the very early morning from midnight onwards. These volunteers subsequently start their paid employment shortly after.
SJA have the option to use paramedic crews instead of volunteers but will always try and utilise a combined crew of 1 Paramedic and 1 volunteer. My question is regarding fatigue management. Does SJA have any obligation to implement a fatigue policy for volunteers? Also, what potential consequences could arise if a fatigue related incident was to happen at their normal employment environment?
The answer has to be that there is some obligation, but defining what how that obligation may be met is much more complex and nuanced. Western Australia has not yet adopted the 2011 model work health and safety legislation, so the relevant Act is still the Occupational Health and Safety Act 1984 (WA). The OHS model regulates the relationship between employee and employer and a volunteer is not an employee. An employer is however required to limit risks to non-employees. Section 21 says:
An employer or self-employed person shall, so far as is practicable, ensure that the safety or health of a person, not being (in the case of an employer) an employee of the employer, is not adversely affected wholly or in part as a result of —
(a) work that has been or is being undertaken by —
(i) the employer or any employee of the employer; or
(ii) the self-employed person;
(b) any hazard that arises from or is increased by —
(i) the work referred to in paragraph (a); or
(ii) the system of work that has been or is being operated by the employer or the self-employed person.
To put that into plain English, SJA is an employer so it must ‘so far as is practicable’ take steps to ensure that the safety or health of volunteers is not adversely affected by the work of SJA.
What is practicable is what is:
… reasonably practicable having regard, where the context permits, to —
(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and
(b) the state of knowledge about —
(i) the injury or harm to health referred to in paragraph (a); and
(ii) the risk of that injury or harm to health occurring; and
(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;
(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);
The work of St John Ambulance (WA) (and any jurisdictional ambulance service) must, of necessity, expose all ambulance officers to risk – whether that is a risk of physical injury or psychological injury given the nature of the work. The duty under OHS law is not to ensure that there is no injury. If that was the legal obligation the way to achieve that would be to cease operations. St John could protect its volunteers by not having volunteers and could protect its staff by refusing to operate an ambulance service, but that is not practicable.
Australia’s emergency services depend on volunteers and the fact that they volunteer as well as have other lives is always an issue but that does not mean the services cannot use volunteers but indeed they need to be aware of the risk created by their work and work environment.
The question then is what is the risk of fatigue – how likely is it to arise and what might the consequences be and given that the service has to operate and does depend on volunteers how can that be managed? The push in OHS legislation is to put the burden of assessing and managing the risk on the employer (in WA) or on the Person Conducting the Business or Undertaking (the PCBU) in those jurisdictions that have adopted the 2011 model legislation. What that means is that there are multiple ways to address the issue all of which may be acceptable.
Anyone with experience with volunteers in the emergency services know that volunteers join to perform the emergency function so everyone wants to turn out to every job and stay as long as they can. Some solutions may be to have a roster so people are stood down and the same people are not relied on each night, monitoring how long people have been ‘on duty’ and require them to stand down after a ‘reasonable’ period. Critically in the context where people have to work the next day is making sure there are process to allow people to manage their own fatigue so that they can take themselves ‘off line’ if they need to (recognising they can’t do that if they are already responding to the task).
What the service cannot do is assume that all volunteers do have a 9-5 Monday to Friday job and then dictate to them what is in their best interests. People may volunteer for these tasks because they can so one cannot assume that all ‘volunteers subsequently start their paid employment shortly after’ or what their employer’s attitude is. That is part of allowing volunteers to manage their own situation and to be allowed to determine for themselves whether they are, or are not available tonight on their knowledge of what they have to do tomorrow.
Equally, assuming there is an implied sub-text that a service like SJA should not use volunteers after midnight, that cannot be inferred from the OHS obligations. One has to take into account the risk and what can be done about it and that in turn takes into account cost. Emergency services have to operate within their resources and we have volunteers because Australia could not afford to employ all the emergency service personnel it needs. And there are benefits in having trained volunteers within resilient communities. There will be times where the workload of a service dictates that a paid crew is required, and other services will determine that volunteers can meet the demand even though managing volunteers brings its own challenges including that volunteers have to fit their volunteering around their work and other life demands – see Paramedic Service levels in WA (February 22, 2018).
As for a fatigue related incident at the volunteer’s workplace the potential consequences depend on all the circumstances. The primary obligation is on the volunteer/employee ‘to ensure his or her own safety and health at work’ (Occupational Health and Safety Act 1984 (WA) s 20). If he or she is fatigued to the point of being a risk to health and safety then it would be incumbent upon him or her to let the employer know and take sick, or annual or emergency services leave as available and in accordance with their leave provisions. It would be incumbent upon a volunteer to also determine if he or she is available on any given night as they know what demands they are likely to face the next day.
Could there be legal consequences for SJA? The answer is ‘yes there could’; like any employer they would, if challenged, have to show that they have met their obligation under s 21 but that does not mean having no volunteers. It means doing a risk assessment and applying reasonable measures in response to that risk. There could be many, equally acceptable, outcomes to that process. It is not axiomatic that it would mean not having volunteers respond after midnight.
For a related post, see Fatigue management for volunteers with QAS (April 26, 2016)
A follow-up question to this. Is it reasonable that the same requirements paid paramedics have do not apply to volunteers?
Career paramedics have, for example, minimum breaks between shifts. Because that is mandated in the paramedic EBA, nothing of the sort exists for volunteers, and there is nothing that stops a volunteer from coming in for a job overnight, then coming back in early in the morning for a full day shift the next day (where there would be for career paramedics). The obvious answer is that they’re not getting paid so have no obligation to come in if they feel they can’t, but particularly in places where volunteers can be thin on the ground it can feel like there is an obligation not to cancel a shift you said you were available for.
There are, as noted, obligations under the OHS Act to ensure that volunteer work does not impose an unreasonable risk to a volunteers health and safety. Under the 2011 model Act a volunteer is included in the definition of ‘worker’ and has obligations to ensure his or her conduct does not create an unreasonable risk to health and safety. Paying and employing someone does give the employer more tools, and obligations, to manage an employees behaviour. An agency could try to put limits on volunteering but as you say, in some cases that would mean no service so what is ‘reasonable’ depends on all the circumstances.