Today’s question is:
Is the RFS required by law to feed fire fighters working on a large fire?
If so, is there a requirement that the meal should arrive in a timely manner i.e. lunch at 1200Hrs and not 1500Hrs.
Is there a time frame involved meaning that past a certain hour another meal must be provided for example past 1700hrs an evening meal must be provided?
I’m going to assume we’re only talking about volunteer firefighters, not employed staff (whether employed by the RFS or another agency but working at a fire where the RFS is providing the incident controller/IMT). The reason for that limitation is that, for employees, there may be conditions on a relevant award or Enterprise Agreement that sets out meal entitlements and the question for them should be directed to a relevant trade union.
For volunteers there is nothing in the Rural Fires Act 1997 (NSW) or the Rural Fires Regulations 2013 (NSW) regulations that say anything about meals to firefighters. RFS Service Standard 3.1.11 Application of Food Safety Standards (2007) says:
The RFS provides food during the course of, and in conjunction with, operational and training activities and to members of the public during fundraising or similar activities. The preparation, handling and distribution of food must be in accordance with applicable safe food handling practices, outlined in the Code and the Standards.
SOP 3.1.11-1 Framework for the Provision of Catering, published with the Standard (above) says:
1.1 The NSW Rural Fire Service provides catering during the course of its operational and training activities and to members of the public during fundraising or similar events. The RFS recognises that across the state there is a diverse capability in the delivery of catering…
1.3 Catering is the responsibility of the Senior Management Team (“SMT”) in each area. In the case of coordinated fire fighting, these arrangements should be agreed to by the Bushfire Management Committee…
2.1 The SMT will produce a plan that covers the provision of catering for training, hazard reduction and operations and will agree on the circumstances that trigger the provision of catering for each of these.
2.2 In the case of coordinated firefighting (class 2 and 3 fires), each Bushfire Management Committee will agree on the arrangements and include it in their Plan of Operations.
2.3 The SMT will agree on the type of catering that will be provided in each of these circumstances, e.g. light refreshments or full meal and what these should consist off.
2.4 The SMT will agree on who will provide the catering in each circumstance, e.g. brigade provisions, canteen or external provider.
2.5 The SMT will agree on the individual or individuals who are responsible for ensuring that catering is provided, e.g. individual brigade officers, operations officer, nominated logistic officer etc.
That documentation is a recognition that catering is to be provided but it does not give rise to a legal obligation nor does it address the matters raised by my correspondent.
The legal obligation will come from the Work Health and Safety Act 2011 (NSW) and its regulations. Although volunteers are not employees, they are workers for the purposes of that Act and the WHS obligations the RFS owes its staff, it also owes its volunteers. The Act imposes the primary duty on the RFS to (s 19):
… ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
The Work Health and Safety Regulation 2017 (NSW) says (r 41(1)):
A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, the provision of adequate facilities for workers, including toilets, drinking water, washing facilities and eating facilities.
One can see that is an obligation to provide water (see Supplying water to firefighters (October 10, 2018)) but it is not an obligation to provide meals even though it is an obligation to provide a place to eat meals.
When considering what is required to meet a PCBU’s obligations under s 19 regard is given to (s 18):
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
In this case the ‘hazard’ is the risk to firefighter safety if they are not adequately fed. Given the obvious risk to health and safety if people are fighting fires but are not adequately fed there would be an obligation to ensure that firefighters do get food. Given the nature of rural firefighting where people cannot stop work and step out to the local coffee shop, it would be easy to infer that there is a legal, not just a moral obligation to provide meals to firefighters. The obligation cannot however be expressed in the sort of fine detail that my correspondent suggests. It has to be a reasonable response; in some cases it may be issuing firefighters with a meal pack to take with them to eat when they want to and when they can. Other times it may be returning firefighters to a central logistics area for food, other times it may involve delivering food to the fire ground. There could not be a rule that says ‘lunch at 1200Hrs and not 1500Hrs’ because what is ‘timely’ would depend on, amongst other things, the time the firefighters’ started work. If they started at midday, 3pm may be a great time for a meal break, but not if they started at 9am.
With respect to the provision of meal facilities (r 41) regard is given to (r 41(3)):
(a) the nature of the work being carried out at the workplace,
(b) the nature of the hazards at the workplace,
(c) the size, location and nature of the workplace,
(d) the number and composition of the workers at the workplace.
Again, given the nature of firefighting the best that might reasonably be provided might be hand washing facilities on the fire truck and not much else.
I cannot locate any specific legal obligation on the RFS to feed volunteer fire fighters working on a large fire.
A general obligation to do so would exist by virtue of the Work Health and Safety Act 2011 (NSW). The WHS Act requires the PCBU to respond to a risk to health and safety with measures that are ‘reasonably practicable’. The Act has moved away from detailed rules to an obligation upon the PCBU in consultation with workers to manage the response to the risk. What follows is that although there may be a requirement to provide food, there can be no requirement that sets out the hours of meals. Such a requirement would be inappropriate and impossible to manage given the nature of rural firefighting. It could not, and should not, be a breach of a legal obligation if the meal cannot be delivered on time because the delivery vehicle can’t get past the fire and the firefighters can’t eat it anyway as they cannot put their hoses down mid-fire and call ‘smoko’.
This conclusion is reflected in SOP 3.1.11-1 which does not set out details on what meals are provided when, but requires the SMT to plan for catering, recognising that different events will create different needs.
In short there has to be a general obligation to ensure firefighters have access to food but no, there is not and could not be a requirement:
… that the meal should arrive in a timely manner i.e. lunch at 1200Hrs and not 1500Hrs [or] …a time frame involved meaning that past a certain hour another meal must be provided for example past 1700hrs an evening meal must be provided.
The obligation is to address, as far as reasonably practicable, the risk to firefighter health and safety that arises if they are not adequately fed.