Today’s question from South Australia is said to be ‘adding to’ my ‘series of sackings of volunteers …’
One aspect which has surprised me in supporting this process, is that in SA there is no Legislative, Regulation, Government, or SA SES instrument to sign on a volunteer to the agency. It just seems to happen. There are Procedures, Policies, Codes of Conduct once a person is accepted into the agency, including being deemed an employee for the purpose of WHS and driving under emergency conditions.
Unless I am mistaken, unless there is a “formal instrument” which you sign on joining, am I right in my belief that you are “not covered” as a volunteer which requires you to be deemed an employee for the purposes of WHS and legislative operational requirements. The other implication in this case is that if the volunteer is not considered a nonpaid employee through an organisational instrument of engagement, then there is no legal mechanism to protect the volunteer in the case of an injury and workers compensation.
This aspect I believe is crucial in regard to the Legislation and Regulations in that volunteers can be terminated without ever being subject to disciplinary action as contained within the Legislation, Regulations and organisational instruments.
The interesting part contained within the SA SES Standard Constitution is that a member can be terminated upon application of the Unit Manager, Regional Commander or Deputy Chief Officer without the need for any justification at all, just on a whim. Again if there is no instrument for signing on a volunteer, then I believe there is no valid instrument to terminate a volunteer.
I think my correspondent is ‘mistaken’. There is no need for a formal document of appointment, the issue is what we lawyers call a ‘question of fact’ (rather than a question of law). The question is ‘was or is the person a volunteer with the SES?’ First, it’s not true that there is no legislation on the matter. The Fire and Emergency Services Regulations 2005 (SA) r 58 says:
An SASES unit must—
(a) maintain a list of the names of its members with each member’s residential address, date of birth, certificate of identity number and date of joining the unit;…
A person will be a member of the SASES if their name appears on a unit membership list.
In the absence of a formal document of appointment you would look for other evidence – did they turn up for and were they accepted for training? Were they issued with a uniform? Were they held out by the SES as a member? Did they respond with the SES? Did they subject themselves to the discipline of the organisation? Did everyone behave as if they were a member? One doesn’t have to answer all those questions, but they are the sort of questions that would be relevant and would allow someone, including a court, to determine that the person was, or was not, a member of the SA SES.
If you are a volunteer, then you are a worker for the proposes of the Work Health and Safety Act 2012 (SA). (To be identified as a work (s 7) is not the same as saying the volunteer is ‘deemed an employee’. They are a worker, a worker may or may not be an employee).
And there is a means for compensation as noted in my earlier post Compensation for the death of volunteer firefighters across Australia (February 13, 2020)
In South Australia a volunteer firefighter is presumed to be employed by the Crown and is therefore a ‘worker’ (Return to Work Act 2014 (SA) s 4 and Schedule 1; Return To Work Regulations 2015 (SA) r 69).
The same provisions apply to SES volunteers (Return To Work Regulations 2015 (SA) r 69(1)(a)(i)). Therefore a member of the SES is covered and the answer to who is a member will be answered by reference to the questions above.
As for disciplinary action of course, it is not the case that a member ‘can be terminated upon application of the Unit Manager, Regional Commander or Deputy Chief Officer without the need for any justification at all, just on a whim’. Anyone seeking to discipline a member is required to comply with the Fire and Emergency Services Regulations 2005 (SA) r 62 which sets out detailed procedures to manage the discipline of volunteers. These provisions are binding on the ‘Unit Manager, Regional Commander or Deputy Chief Officer’.
And the right to receive natural justice is a common law right that will be implied where a decision by one person affects the rights and interests of another, Even if there was an attempt to say that a person, who everyone thought was a member was not in fact a member because he or she had not completed ‘form a’ that person would be entitled to ‘natural justice’ (ie to be heard on the matter).
The law is far less concerned with form than substance. If there is no prescribed membership application form, then no form is required. The absence of a form does not mean there are no volunteers with SA SES. All the people whose names appear on the member list maintained by SES units are volunteers. And others may be found to be volunteers if they behave as if they are volunteers and the SES behaves as if they are volunteers even if it turns out there’s been an error in some paperwork somewhere.
There is nothing in the Return to Work Act 2014 (SA), the Work Health and Safety Act 2012 or the Fire and Emergency Services Regulations 2005 (SA) that says a person is a member if and only if they have completed form ‘A’. In the absence of such a requirement my correspondent is mistaken. There is no implied rule of law that says that one can only be a member of something if there is a ‘form’. If the government intended that a member as a member if and only if they completed the membership form, it would need to say that. In the absence of that rule it does not mean there are no volunteer members, it means that membership is not determined by whether or not someone signed the form. The prescribed evidence of membership is that the person’s name is entered on the list maintained by their SES unit but even that may not be determinative. Assume Bill has been turning up, and out for years, receiving long service medals, accepting appointments, travelling for training and out of area response etc but it turns out that another person, with a similar name resigned nad when updating the list, Bill’s name was accidentally removed but the resigning member’s name still appears on the list. A court, and I suspect the workers compensation insurer, would have no difficulty in finding that Bill was, and remains, a member of the SES.
Even without ‘a “formal instrument” which you sign on joining’ it is still possible to identify who are members of the SES and they are all …workers for the purposes of the Work Health and Safety Act and deemed employees for the Return to Work Act. Should anyone seek to terminate their membership they have to comply with the Fire and Emergency Services Regulations 2005 (SA) r 62 and internal procedures.