Today’s question relates to the requirement for a ‘blue card’ by members of QFES – see Working with children check for QRFS and SES (July 20, 2019). The question is:
In the cacophony surrounding the QFES interpretation of Blue Card requirements for volunteers by 31 March 2020, volunteers who do not wish to comply with that requirement are being told to resign or be sacked. As the First Officer of a QLD RFB, my understanding is that a brigade member can only be dismissed by the brigade of membership, not the QFES Commissioner, am I correct?
Secondly, can I using the authority given to a first Officer in an emergent fire situation, be prevented from calling on the assistance of those volunteers who have either resigned or been dismissed as a result of the Blue Card turmoil?
The QFES Commissioner is ultimately responsible for the management of the Rural Fire Service and SES in Queensland (see Status of Queensland Rural Fire Brigades (September 10, 2014)).
There is nothing on membership of Rural Fire Brigades in the Fire And Emergency Services Act 1990 (Qld). The closest provision is s 81 that says ‘The commissioner may dismiss a person from any office held with a rural fire brigade or may disqualify a person from holding any office’ but given s 81 is about ‘officers of rural fire brigade’ it would infer that an officer, and a person ‘holding any office’ is different from a ‘member’.
Interestingly, s 132 says ‘The SES consists of the persons appointed by the commissioner as SES members.’ With the power to appoint comes the power to terminate the appointment (Acts Interpretation Act 1954 (Qld) s 25). There is no equivalent of s 132 when it comes to the Rural Fire Brigades. There is no provision that specifically that says the Commissioner can dismiss a member but equally there is nothing say a First Officer can, nor is there anything in the Fire and Emergency Services Regulation 2011 (Qld). The disciplinary provisions in Chapter 3, Part 4, Division 3 clearly relate to employees, not volunteers. But someone has to have that power to determine who is, and who is not, a member.
Given the Commissioner’s role is to form brigades (s 79) approve and at times direct Brigades with respect to their rules (s 80), direct how elections for officers are to be held, approve elections and appoint (and withdraw the appointment of) officers (s 81), determine the functions of a brigade and it’s area of operations (s 82), provide equipment for the brigade (s 84) and to be ‘responsible for the efficiency of rural fire brigades and may provide training and other assistance to them (s 85) it would stand to reason that the Commissioner can set out standing orders and procedures for membership including termination of membership and the Commissioner’s role in that process.
Unlike NSW RFS documents, the Queensland documents do not seem to be publicly available so I cannot see them but I would suggest that there are standing procedures such as the ‘the Code of Conduct for staff and volunteers’ that does empower the Commissioner to terminate a person’s membership. In any event, such authority could be implied in order to allow the Commissioner to fulfil his or her duties with respect to the emergency services.
At a fire where (s 83):
… a rural fire brigade is in charge of operations for controlling and extinguishing a fire, the first officer of the brigade has, for that purpose—
(a) the powers of an authorised fire officer, subject to any limitation imposed by the commissioner; and
(b) the control and direction of any person (including any fire officer) whose services are available at the fire.
Prima facie that would allow the first officer to ‘control and direct’ former ‘volunteers who have either resigned or been dismissed’ but who have made their ‘services … available at the fire’.
However s 83(3) says ‘Any person exercising a power or discharging a function under this section must comply with any code of practice and with any direction of the commissioner’ so if the Commissioner has directed that such persons are not be used, even if they are available, then that specific direction would override the general power in s 83(2). Again I don’t know whether such a direction has, or has not, been given.
Here’s an interesting tangential point: if QLD volunteers are dismissed and there is insufficient manpower for an incident and QLD calls upon another state to assist, those other states do not have equivalent Blue Card checks conducted. So what is effectively happening is QFES is saying “Hey, we don’t trust our people so let’s call on those other people who don’t need to follow that requirement we set on our people.”
On another note, the SESVA and RFBAQ allegedly received advice that QFES could have applied for an exemption for its staff and volunteers in the same/similar way to QPS, QAS and equivalent agencies in other states. Would this be a valid complaint, or is that point moot now the decision has been made?
it’s a moot point; that they could have just means they could have not that they should have