Today’s question suggests to me ongoing confusion about the status of RFS brigades – see for example:
- Constitutions for NSW RFS brigades (May 21, 2014)
- ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015)
- RFS brigades entering into a contract (March 1, 2015).
Today’s question is:
… over the last two years our fire brigade (New South Wales Rural fire service) has held its AGM with less than the required number of members, as per brigade constitution, to form a quorum. There has always been a salaried staff member of the RFS present who has said, words to the effect of, whatever you as members decide at this meeting it will stand. This statement by the salaried staff member has been recorded in the minutes of the meeting and read out loud to all the people present at the meeting.
My concern is that a Volunteer may not be covered by legislation and could be held personally liable should any investigation, law suite, coroner’s inquest, RFS disciplinary action, find out they were not properly voted in. At these AGMs there has also been a tradition of “tell so and so they have been voted in as XYZ Captain when you see them on Monday.”
My question is as follows.
1: Are field officers, Captain, Senior Deputy Captain, Deputy Captain, protected as per the service standards if they have not been appointed as per Due process. No quorum.
The short answer is that all officers are appointed by the Commissioner. An election process is a way for the members to recommend to the Commissioner who should be appointed, but their authority comes from the Commissioner.
Brigades are not separate legal entities. They are created by the Commissioner (Rural Fires Act 1997 (NSW) s 15 and Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades.) A brigade’s constitution is to be in the form approved by the Commissioner (Rural Fire Service Regulation 2013 (NSW) r 4). The Brigade Constitution is set out in Service Standard 2.1.2 Brigade Constitution.
The Constitution provides that a brigade must hold an annual general meeting (). ‘The quorum [that is: ‘the smallest number of people needed to be present at a meeting before it can officially begin and before official decisions can be taken’ (Cambridge Dictionary (Online), 3 February 2020)] for the AGM is 15% of the ordinary members calculated at the time of the meeting unless that percentage is increased by a brigade rule’ ([6.5]). At the AGM the members must ‘if their term of office has expired, elect the field officers for the ensuing term as required by clause 7.14’ ([6.10(d)]). Clause 7.14 says:
At the AGM the members must elect the following field officers when the term of that officer has expired:
(b) senior deputy captain; and
(c) as many deputy captains as the Brigade decides at the AGM or the most recent general meeting.
If there is no quorum ([6.8]-[6.9]):
(a) the meeting must be adjourned;
(b) a new meeting date must be set by the captain or president and district manager; and
(c) all members must then be notified of the new date by a method specified in clause 11.1 at least seven days before the meeting.
6.9 If the second meeting fails to achieve a quorum, the AGM must be adjourned and the matter referred to the district manager.
The appointment of Field and Group Officers is governed by Service Standard 2.1.4 Appointment of Field and Group Officers. That Service Standard says (at [3.1] emphasis added) ‘Field Officers are appointed after the election by brigade members in accordance with the brigade’s constitution.’ That is it is not the election that sees them appointed, they are not appointed ‘by’ election but appointed by the District Manager ‘after’ the election. The Standard goes onto say:
3.15 A District Manager may appoint any member of the NSW RFS as a Senior Deputy Captain or Deputy Captain of a brigade for a period of not more than 12 months if the District Manager believes that it is necessary to ensure the safe and effective operation of the brigade.
3.16 If the Captain’s position becomes vacant and the brigade is unwilling or unable to elect another member to that position, the District Manager may appoint a suitably qualified member of the NSW RFS to that position until the next annual general meeting, or for a shorter period.
Certainly, if there is no quorum then the ‘brigade is … unable to elect another member to’ the position of Captain within the terms of the Brigade’s Constitution.
A district manager can also terminate a field officers’ appointment Service Standard 2.1.2 Brigade Constitution [7.20] and Service Standard 2.1.4 Appointment of Field and Group Officers [3.11].
To proceed with the AGM in the absence of the quorum is inconsistent with the Brigade Constitution and should not happen. I’m a firm believer in ‘mean what you say and say what you mean’ so if the Commissioner has put those provisions in the Brigades’ Constitution then it should be inferred that he meant that to be followed. (I say ‘he because the current Commissioner is a male and given we are talking specifics it seems unnecessary to say ‘he or she’ or ‘him or her’, but recognising that a future RFS Commissioner will be female).
Having said that however, the Constitution is a matter of internal management, that is it is how the Commissioner choses to exercise responsibility for ‘managing and controlling the activities of the Service’ (s 12(1)). Unlike a company incorporated under the Corporations Act 2001 (Cth) or the Associations Incorporation Act 2009 (NSW) there is no statutory requirement to follow these various provisions. Brigades could exist without a constitution in the form set out in the Service Standard and the Commissioner could chose to have any other sort of process to select field officers.
Section 22, dealing with the ‘General powers of rural fire brigade officers and others’ says that ‘An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner may …’ exercise the emergency powers set out in the Act. A person who holds an appointment as a field officer holds that appointment by virtue of the Commissioner’s will so holds it even if there was an anomaly in his or her appointment and even if a subsequent challenge saw that appointment terminated. Whilst he or she holds the appointment then they hold the relevant rank (see also Interpretation Act 1987 (NSW) s 19 and 48).
The various ranks (Captain, Deputy Captain and ‘field officer’) are not mentioned in either the Rural Fires Act 1997 (NSW) or the Rural Fires Regulation 2013 (NSW). There is no statutory method for their appointment or a requirement that those ranks exist. The creation of the rank structure is again a matter for the Commissioner (Rural Fires Act, 1997 (NSW) s 12(4)) and is given effect by Service Standard 1.2.1 NSW RFS Ranking and Rank Insignia.
What follows from all of that is that ‘field officers, Captain, Senior Deputy Captain, Deputy Captain’ are all members of the RFS. It is that membership that ensures they enjoy the protection of the Rural Fires Act 1997 (NSW) s 128 and the principles of vicarious liability (see Vicarious liability for volunteers (April 23, 2018)). The critical question will be ‘was the person a member of the RFS?’ as that is the only relevant criteria at law (Rural Fires Act 1997 (NSW) s 20 and s 128(2)(c); Civil Liability Act 2002 (NSW) ss 3C and 61). However they are nominated, field officers hold their appointment at the will of the Commissioner. If there is an anomaly in their appointment that anomaly belongs to the RFS, it would not affect the member’s position but may be subject to some comment if it had some impact on the response to a fire or management of the service.
The Brigade Constitution should be followed as the Commissioner must intend that it will be followed. Where there is no quorum the meeting ‘must be adjourned’ and a new meeting called. ‘If the second meeting fails to achieve a quorum, the AGM must be adjourned and the matter referred to the district manager’ (although it is not clear what the district manager can, or is to do about it).
Where the term of field officers expires and there is no AGM then there can be no election under cl 7.14 of the Constitution. The District Manager (or his or her delegate) could still ask those present to express their view on who should be appointed (for example by election of those present) and those members could be appointed pursuant to Service Standard 2.1.4 Appointment of Field and Group Officers [3.15] and [3.16].
If there is an anomaly in appointment an aggrieved member could seek to raise the issue on the basis that the Constitution (in effect the Commissioner’s Standing Order) was not complied with but that would not affect the validity of a person appointed by the Commissioner or his delegate pending a further decision. An inquiry or proceedings may make adverse comments about RFS administration if it turns out that the Commissioner’s directions (as set out in the Service Standards including Standard 2.1.2 relating the Constitution) have not been followed, but that would be reflection on the RFS, not the member appointed.
Provided those appointed are members of the RFS (s 20) then the fact that they have been appointed to that office by virtue of Service Standard 2.1.4 Appointment of Field and Group Officers [3.15] and [3.16] or by any other means won’t affect their potential personal liability.
Field officers, Captain, Senior Deputy Captain, Deputy Captain are protected as per the service standards even if they have not been elected at an AGM with a quorum of members.