A correspondent with Queensland’s Rural Fire Service has written to me regarding the requirement for fire service and SES volunteers to obtain a working with children’s check – a blue card. I have also been provided with an email from the QFES Commissioner addressed to all staff and volunteers and a copy of the powerpoint slides Safety for Children Blue Cards, Safety for Children (Blue Card Screening and Risk Management), Presentation for Rural Fire Service volunteers. (You can see the powerpoint slides here – RFS_BLUE_CARDS).
The critical issue is the requirement to hold a blue card as set out in the Working with Children, (Risk Management and Screening) Act 2000 (Qld). For the purposes of this Act a volunteer is equated to an employee (s 161) so it does not matter whether the members are employees or volunteers. The Act applies to any employer engaged in regulated employment. What is regulated employment is set out in Part 1 of Schedule 1. Relevantly cl 6(1)(b) says:
Employment is regulated employment if the usual functions of the employment include, or are likely to include, an employee providing 1 or more of the following—…
(b) a health service to a child other than at a health facility—
(i) that, by its nature, requires physical contact with the child; or
(ii) if the employee is physically present with the child while no-one else is present;
Clause 6(5) says:
In this section—
health service means any of the following—
(a) a service for maintaining, improving, restoring or caring for a person’s health or wellbeing, including, for example, the following—
(i) a service providing personal care to a person who is ill, injured or otherwise infirm;
QFES is of the opinion (see slide 4) that their function of reducing ‘potential danger to persons, property or the environment’ includes ‘providing a health service and/or support service to children’ and that therefore, employment (and volunteering) with RFS ‘is therefore regulated employment’.
My correspondent says:
…it would appear that through interpretation of the Fire Act, brigades are now a health service and/or support service to children. This would then imply that 1st aid would need to be a requirement for all brigade membership? Currently only 2 brigade members from each brigade are supplied with 1st Aid Training at state expense.
I’m pretty sure that when the Act says
(3) In this section—
fire prevention includes taking measures in readiness for fire so as to reduce potential danger to persons, property or the environment.
They weren’t thinking about anything apart from defending people and stuff from fire.
So my initial questions are 4:
- Was the intent of the Fire Service Act 1990 to have Rural Fire Brigades considered as providing a health service and/or support service for children?
- What extra obligations will non-PPB brigade now have if they are providing a health service and/or support service for children?
- Is it a reasonable argument that the ‘usual function’ of a Rural Fire Brigade include or are likely to include providing a health service to a child?
- As a brigade member who is not an active firefighter, rather a member of the brigade who attends meetings to take minutes or as treasurer or other non-outward facing roles, are they now providing a health service and/or support service for children?
I think we can safely say that when the Fire and Emergency Services Act 1990 (Qld) was passed, no-one had in mind the provisions of the Working with Children, (Risk Management and Screening) Act 2000 (Qld) given that the second Act was passed 10 years after the first. That is not however, the relevant question. The question is whether when passing the second Act the legislature intended to capture the sort of work done by QFES and SES. The answer to that question does not however, determine the matter. Whether the legislature realised they would, or would not, capture the sort of work done by QFES and SES is irrelevant if the plain meaning of the words does in fact capture that work.
The obligation is to give effect to the words used. If and only if there is ambiguity does one look to see what the supposed purpose may have been in order to give a meaning that is most likely to advance that purpose (Acts Interpretation Act 1954 (Qld) s 14A). The Act that is being interpreted is the Working with Children, (Risk Management and Screening) Act 2000 (Qld). The object of that Act (s 5) is:
… to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring— …
(b) the screening of persons employed in particular employment or carrying on particular businesses.
Further (s 6):
This Act is to be administered under the following principles—
(a) the welfare and best interests of a child are paramount;
(b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
Accordingly the Working with Children, (Risk Management and Screening) Act 2000 (Qld) including schedule 1 cl 6 should be interpreted in a way that most advances those objectives.
A non PPB brigade is a non Primary Producer Brigade. I’m told
… primary producer brigades are landholder brigades that use slip on units on the back of private vehicles to quickly fight fire when it happens. Most don’t have a truck, fire shed or bank account. The fire service provides them with PPC, limited equipment and the legislative and workers comp support. It is a really effective way of meeting bushfire needs in broad acre areas across much of Queensland. They only need to have a meeting every 3 years to stay compliant with the fire service.
Non PPB are the other classifications of brigade such as I – zone, rural and village who are more active, most have 1 vehicle or more and over many have a fire shed station. These brigades need only meet a minimum of once every 2 years if they do not collect a levy or raise under $5,000 in fundraising per year and if you do collect a levy or raise over $5k then you need to meet every year.
The 1st Roll out of blue cards are to the non ppb brigades with the second round looking to include them.
The only obvious obligation that will be added is an obligation to ensure volunteers have obtained their working with children check (s 188). It does not increase any other obligation upon the Brigade.
‘Is it a reasonable argument that the ‘usual function’ of a Rural Fire Brigade include or are likely to include providing a health service to a child?’ Yes, I think it is a reasonable argument. It is however, just an argument and not necessarily a persuasive argument.
The real question is whether it is a usual function of QFES to provide first aid to people who might be at the scene of a fire. I am told that ‘Currently only 2 brigade members from each brigade are supplied with 1st Aid Training at state expense’ and that a first aid qualification ‘is not a requirement to be a brigade support member or active brigade member’.
If it is the case that there only needs to be one or two first aiders in each crew that may suggest that they are there to ensure that QFES as the person conducting the business or undertaking is meeting its obligation to have first aid services available for the workforce (Work Health and Safety Act 2011 (Qld) s 19; Work Health and Safety Regulation 2011 (Qld) r 42). If the first aiders are there to provide first aid to the crew then it is not a usual function to provide that care to others.
There would or could also be a question as to whether providing first aid to a person is providing a health service where first aid is entirely incidental to the task at hand such as firefighting or even rescue. A shopkeeper may provide first aid to a person who is ill in their shop, but it could hardly be said that they are providing a health service.
The duties of the RFS to protect persons from fire or to effect a rescue or to protect persons trapped in a car (Fire and Emergency Services Act 1990 (Qld) s 8B) are about firefighting and cutting the person out of the car. If the person needs medical care that will nearly, if not always, be provided by Queensland Ambulance. Providing first aid to that person is as much a part of the duty of QFES as it is part of the duty of the shopkeeper described above. QFES is not providing a health service even if a QFES member, like any person, would provide first aid and comfort if they can. The SES is required to ‘help injured persons’ (s 130) which makes the argument that their work is to provide, inter alia, a health service, stronger.
The critical thing to note is that the ultimate answer can only be provided by a court or perhaps by the Chief Executive managing the Working with Children, (Risk Management and Screening) Act 2000 (Qld).
In simple terms, there are two possible conclusions:
- A blue card is required;
- A blue card is not required.
If QFES accepts that a blue care is not required, but the unthinkable happens and the matter ends in a court and the court holds that a blue card should have been required then QFES may be criminally liable and will be condemned in the court of public opinion.
If, on the other hand, QFES accepts that a blue card is required and later a court holds that this was not the case there are no legal implications. There is no harm in having a blue card if you don’t need one; there is not having one when you do.
QFES having identified an argument that leads to conclusion ‘1’ rightly, and cautiously take the view that the best way forward is to assume that a card is required and act accordingly.
The government and therefore QFES, unlike a private operator, has I suspect no risk appetite in this area. If a public sector agency is found not to have complied with the Working with Children, (Risk Management and Screening) Act 2000 (Qld), in particular if the unthinkable happens, the consequences would be more dramatic than for a private sector operator. And the argument ‘we knew we might, but we thought on balance the argument that we were not required was stronger and it was too expensive to comply ‘just in case’’ would not, I suspect wash with the voting public.
As the Commissioner says in her email to members:
The Queensland Government takes the safety of children extremely seriously and as a result Queensland is recognised as having one of the strongest working with children check systems in Australia. This system is continuing to be strengthened with a series of reforms…
QFES has a legislative and shared responsibility to achieve the Government’s commitment and I know the QFES workforce shares this position with me along with our various unions and associations.
Even if it turns out that QFES or SES don’t require such a check, getting them is consistent with that approach and of course QFES is part of the Queensland government.
The question I was asked was ‘Is it a reasonable argument that the ‘usual function’ of a Rural Fire Brigade include or are likely to include providing a health service to a child?’ I think it’s a reasonable argument. I may not be completely persuaded by it, but that’s not the point. The question is whether the QFES Commissioner and/or the government should to take the risk.
I do understand that volunteer firefighters and SES members in other states and territories have working with children checks so the Queensland position appears to be consistent with other jurisdictions.
The definition of regulated employment is given above. It refers to ‘the usual functions of the employment’. Employment even within an organisation can be varied. Consider for example a company that runs child care centres. The workers at the child care centre may require a check but the accountant who works at head office is not working with children and would not, in my view, required a blue card check.
If a QFES or SES volunteer was engaged in circumstances where he or she would not be in a position to provide care to children, eg he or she was an office administrator or communications officer, then I would suggest that he or she is not engaged in ‘regulated employment’ and a check would not be required.
Equally if it is the case that ‘only 2 brigade members from each brigade are supplied with 1st Aid Training at state expense’ then it would appear that only those members would be expected to provide first aid to children so there would be an argument that only those members require a blue card.
The questions and my short answers are:
1. Was the intent of the Fire Service Act 1990 to have Rural Fire Brigades considered as providing a health service and/or support service for children?
No, when writing the 1990 Act the legislators could not have had in mind what would be included in an Act of 2000 but that is not the point. The more relevant question is whether the intent of the legislative authors when writing the Working with Children, (Risk Management and Screening) Act 2000 (Qld) was to capture the work of the rural fire brigades, but again that is not strictly to the point. What is to the point is whether the language does capture the work of the rural fire brigades.
2. What extra obligations will non-PPB brigade now have if they are providing a health service and/or support service for children?
An obligation to ensure volunteers obtain a blue card before they commence their volunteer duties.
3. Is it a reasonable argument that the ‘usual function’ of a Rural Fire Brigade include or are likely to include providing a health service to a child?
I think it’s a ‘reasonable argument’ which is not to say I think it’s right, but I cannot determine what’s right; but it is a reasonable argument.
4. As a brigade member who is not an active firefighter, rather a member of the brigade who attends meetings to take minutes or as treasurer or other non-outward facing roles, are they now providing a health service and/or support service for children?
In my view, no.
For earlier posts on fire fighting and working with children checks, see:
- Do firefighters need a working with children check in NSW? (March 1, 2018);
- Past misbehaviour and current risk (November 30, 2018); and
- Working with children assessment confirmed despite prior offending (May 10, 2019).