Today’s correspondent writes:
Hoping you might be able to help answer a question that seems particularly relevant at the moment, and that is in regards to volunteer protection orders and how they work. I’ve read your earlier article on the matter from 2012, and from that and reading the legislation understood that when a volunteer protection order is in place that a volunteer can’t have their employment adversely affected as a result of attending an fire and I took from this that a volunteer can attend an incident without having to seek time off etc.
Basically I understood that whilst you needed to let your employer know you wouldn’t be attending work because of a fire your employer can’t stop you attending an incident covered by the Volunteer protection order, but that they didn’t have to pay you for the time you were volunteering.
I note in the latest information on the VPO from the RFS available here – https://www.rfs.nsw.gov.au/news-and-media/general-news/volunteer-protection-order That it says that “The Order does not obligate employers to release employees” which seems to defeat the purpose of having a VPO and essentially makes it like any other time where you can only attend during work with the explicit support of your employer.
Can you please clarify the practical impacts on how a VPO works for a volunteer and what it allows/doesn’t allow, particularly with regards to the question of whether you need to get permission from your employer before attending an incident (as opposed to just advising them).
I have previously written on the employment protection provisions – see
- Employment protection for NSW volunteers (March 8, 2012);
- Volunteer Protection for NSW Emergency service workers (January 9, 2013);
- Employment Protection for NSW Volunteers (June 9, 2016); and
- Employment protection for volunteers in current NSW storm response (December 23, 2018).
I’m not aware of any cases where anyone has been prosecuted for breaching these provisions so strictly speaking I cannot ‘clarify the practical impacts on how a VPO works’ I can only comment on what the law says and how I think it should or might work if tested.
The volunteer protection provisions in the State Emergency and Rescue Management Act 1989 (NSW) s 60B (the SERM Act) apply when there is a declared state of emergency or where the Premier or an authorised officer makes an order that the provisions apply (ss 60AA and 60D). In the current bushfire environment, there is (or was) a declared state of emergency: see Emergency declarations for NSW and Queensland (November 11, 2019). Apart from the automatic application of s 60B during a state of emergency, the RFS reports that orders have been made extending the employment protection provisions until 25 November (which is longer than the 7 days for the original state of emergency declaration).
Section 60B says:
An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part, as a member of an emergency services organisation, in emergency operations to which this Part applies.
Section 60C says:
An employer victimises an employee if the employer:
(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or
(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or
(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.
Victimising an employee is a criminal offence. In proceedings if the Crown can prove that the employee was dismissed or otherwise victimised, the burden of proof shifts to the defendant to show that this was not due to the employee’s participation in the emergency response (s 60E). A certificate from ‘the chief executive officer of an emergency services organisation’ confirming that a person ‘was a member of the organisation during a particular emergency and took part in particular emergency operations carried out by the organisation in respect of that emergency in accordance with arrangements made with that organisation’ is proof of the matters set out in the certificate (s 60H).
The Fair Work Act 2009 (Cth) s 772(1) also says:
An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:…
(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
My correspondent’s understanding is that ‘whilst you needed to let your employer know you wouldn’t be attending work because of a fire your employer can’t stop you attending an incident covered by the Volunteer protection order, but that they didn’t have to pay you for the time you were volunteering.’
That seems like a fair interpretation. They cannot terminate your employment unless your absence is ‘unreasonable’ (Fair Work Act) and I suppose there may be circumstances where it is not reasonable to be absent eg if you know you are a critical person and without you the business cannot function and you do not give sufficient notice to find someone else to take your spot.
The SERM Act does not have that ‘reasonable’ limitation – it says the volunteer cannot be ‘victimised’ and that includes being terminated but again employers may be reasonably aggrieved if you know you are part of a team that has to function and you have a specialised role and without you, the business grinds to a halt. But as I say, unlike the Fair Work Act, the SERM Act does not say that an employee cannot be victimised if their absence was ‘reasonable having regard to all the circumstances’ (or some such).
I suppose it could come to an argument whether the action was taken because you were acting in the emergency or because your action posed a risk to the business or perhaps to the health and safety of others. But that’s an extreme scenario. If you work in a multi-person workplace where it’s reasonably easy to pull in other staff to cover your absence, and ideally if you can give some notice (“I’m being deployed tomorrow…”) then it would be hard to see how the employer could somehow argue that a decision to terminate employment or otherwise was not contrary to s 60B. In that case the practical effect would be as my correspondent suggests – they cannot fire you and they cannot punish you for going so in effect they cannot stop you going. They could I suppose insist that you take annual leave or that you are ‘leave without pay’ but they cannot take any other action.
So why does the RFS say the order does not ‘obligate employers to release employees’? I’m not sure, I suspect it’s being cautious. As I say I can imagine an argument if you are say, the rostered safety officer on a remote site and without you work cannot proceed so the employer says ‘I’m not taking action because you were part of an emergency response but because you put everyone’s safety at risk’. I imagine the RFS doesn’t want to say ‘the employer is obligated to let you go’ because, as I say, that’s not the language of the Act and if some employer does win some argument like that, they don’t want the volunteer saying ‘but you said they had to’.
Further, a volunteer needs to consider if he or she ‘asks’ for time off and the employer says ‘no’ whether they want to have the argument. If the employer says ‘you go and your sacked’ saying ‘you cannot do that’ may be true, but if the employer takes that action, the volunteer has to make a complaint, presumably to police or to a union and they have to decide to take criminal proceedings against the employer. If successful the employer may be ordered to reinstate the employee (s 60F) but that’s a long process. Again the RFS may be being cautious because the Act does not say (even if it is implied) that the employer has to ‘release employees’ and they don’t want to give misleading advice and put their volunteer in the unfortunate position of saying ‘you have to let me go’ and then finding themselves in the position of ‘victim’ in a criminal prosecution.
I think the effect of the SERM Act and the Fair Work Act is that an employer cannot do anything to an employee who is absent from work for emergency services functions (assuming of course everyone obeys the law. Under the law no-one is allowed to murder anyone but it still happens, so when I say ‘cannot’ perhaps I should say ‘should not’). But clearly if the employee knows their attendance at work is critical, or the employer indicates that they do not want the employee to be absent, an employee would have to consider their position and ask whether running the risk and then seeking remedies is worth the potential cost.
I would suggest the RFS says the order does not ‘obligate employers to release employees’ because the Act does not say that it does impose that obligation (even if that may be its practical effect). The RFS does not want to give legal advice so they are correctly reporting on what the Act does, and does not say and not attempting to interpret what its practical effect may be. Given that neither they, nor I, can imagine every circumstance or argument where that may be an issue and neither they, nor I, want to mislead anyone say they cannot say that the Act says something that it does not (even if that may be its practical effect).