Today’s correspondent tells me that:
Fire and Rescue NSW is exploring a Dual Employment Policy (not yet available) allowing permanent (career) firefighters to work as retained (on-call) firefighters in their days off at their local retained station. To be able to work under the two different Awards, it is expected that they would essentially need to have two different employee numbers. One challenge with this is the question of where these people would fit into the existing hierarchy, as retained brigades already have their own Captains and Deputy Captains, but the Fire and Rescue NSW Act 1989 definitions deem that if a permanent firefighter is present, that person is the Officer in Charge and outranks all retained firefighters (regardless of the permanent firefighter’s rank or experience).
My question is – is it possible to ‘pause’ a person’s position, and effectively wear two different hats within the same organisation? Or, even when working under a different Award in a retained firefighter position, would the Act still regard you as a permanent firefighter and therefore in charge?
The Fire and Rescue NSW Act 1989 (NSW) provides for permanent and retained fire brigades (s 8). A permanent fire brigade is ‘… established and maintained by the Commissioner, the services of whose members are wholly at the disposal of the Commissioner’. A retained fire brigade is ‘an association of persons for which an approval as a retained fire brigade is in force under section 9, but does not include a rural fire brigade’ (s 3).
The ’officer in charge’ means (s 3):
… the Commissioner or, if the Commissioner is absent–
(a) the person for the time being in charge of any members of a permanent fire brigade present at that place, or
(b) if no members of a permanent fire brigade are present, the person for the time being in charge of any members of a retained fire brigade present at that place.
That definition answers the question. My correspondent says ‘if a permanent firefighter is present, that person is the Officer in Charge and outranks all retained firefighters’ but that is not what the definition says. It says the officer in charge is ‘the person for the time being in charge of any members of a permanent fire brigade’. An off duty permanent fire fighter, or a fire fighter who at the relevant moment is part of a retained fire brigade is not then ‘in charge’ of the members of the permanent fire brigade and is not the ‘officer in charge’.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
Hypothetical. If you are a permanent firefighter who works at the retained station as a casual on call for the short period of time, not deemed the OIC as explained. What happens when the incident goes pear shaped and you end up in the coroner’s court knowing you have the skills to manage an incident because you have been trained to that level? Are you seen to be somewhat liable? Same as if a paramedic was the most senior clinically qualified but doesn’t utilise their skills over a cert II medical first responder if patient deteriorates.
Remember coroner’s don’t impose or determine liability. Having said that if a retained firefighter has more experience and skills than the appointed IC/OIC then he or she should speak up and try and draw their concerns to the IC’s attention. If we recall the 2009 Victorian Bushfires Royal Commission they were concerned that the processes in place meant that the IC came from the nominated control agency even if someone from one of the other agencies (ie CFA, FRV, DELWP) was better qualified and more experienced and they certainly recommended that this be changed. Equally confusion over who was the IC was raised as an issue in the inquest into Eyre Peninsula bushfires (sorry cannot remember the year off the top of my head) as the more senior person in the room was not the IC. So ideally FRNSW should have processes in place so people – anyone – can raise concerns with the IC and also a way to scale issues up the chain of command so the IC at an incident can be changed. So the coroner may comment if the more senior firefighter did not attempt to raise his or her concerns, the IC did not listen, and there was not some level of supervision up the chain of command to ensure that the best person was indeed the IC.
It’s not the same as the paramedic examples. A paramedic owes a duty of care to the patient that is different to the duty firefighters owe to property owners and the public (search this blog for posts discussing the cases of Kent v Griffiths (paramedics) and Capital and Counties (firefighters)). Further paramedics are professionally registered so the issue may be how the Paramedicine Board and their professional colleagues view their conduct in all the circumstances. Firefighters (at least in NSW) do not have that sort of legal oversight.
The parallel with the paramedics scenarios would be closer if the firefighter was both a retained and permanent firefighter. On this day he or she is the IC but is part of a retained brigade and says “I’m not going to do things I’ve been trained to do because that training is only available to permanent firefighters and today I’m here as a retained firefighter and the best trained retained firefighter would not have that skill or training”. That’s not quite the scenario you have posited but I agree that if that were the scenario, the firefighters failure to apply all of his or her skills and training would be inexcusable.
In the title it should be ‘FRNSW firefighter’ not ‘NSWFR firefighter.
Good point and changed accordingly.
What a joke
Why is it a joke?
NSW Ambulance has been in this position where a (small) number of managers in non-clinical positions who are clinically credentialled wish to perform clinical work. These acitivities occur under two different awards. The option has been for those managers to also hold a casual paramedic position with their full time managers position.
How did we get from NSWFB firefighters to NSW Ambulance? I think I can guess.
Who cares about rosters? If the permanent member is present and on duty then that person is the Officer-in- Charge for that particular shift. There are no parallels to be drawn since lessons learned since about 2001 onwards.
At the Caines Seedcake explosion, within a silo, in 1999. at Rutherford NSW, both retained and permanent were in attendance with the latter being a permanent crew in relation to the Hazmat Unit called to support the local retained Brigade. The Deputy State Coroner had, quite possibly, a vastly different assessment of such matters.
Glenn
You ask “How did we get from NSWFB firefighters to NSW Ambulance?” This post is about FRNSW. I was asked a further question and in that question an analogy was drawn with paramedics. I answered that question which explains how we got from FRNSW to paramedicine. A further commentator explained how NSW Ambulance deals with similar issues. Doesn’t that explain how we got “from NSWFB firefighters to NSW Ambulance”?
The reference to the definition of ‘officer in charge’ in s 3 is to make the point the law does not say that ‘If the permanent member is present and on duty then that person is the Officer-in- Charge for that particular shift’. It says that any officer that is ‘in charge of any members of a permanent fire brigade present at that place’ is the officer in charge. If there is only a retained brigade present, under the command of the Brigade captain, then a person who is a permanent officer is not then ‘in charge of any members of a permanent brigade’. Even if there is more than one permanent officer in the retained brigade none of them is ‘in charge’ of the others. The brigade captain is in charge of the retained brigade.
As for the silo explosion (see Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356) there was a permanent brigade – the hazmat unit – on scene so by virtue of s 3 the officer in charge of that unit should have been the officer in charge of the response. But that is not the scenario being discussed in this post so the conclusion is of limited (but not no) application in this case.
As I say in response to a further question
If you think any of my analysis of the law relating to the question asked (not a different question such as what happens when a permanent brigade arrives to support a retained brigade) is wrong, then I’d welcome your comment.
In conclusion:
• We got from NSWFB (now FRNSW) to ambulance because the conversation took us that way. You can see the conversation in the comments.
• The law (Fire and Rescue NSW Act 1989 (NSW) s 3) does not say “If the permanent member is present and on duty then that person is the Officer-in- Charge for that particular shift”.
• The reference to the ‘Caines Seedcake explosion’ does not change my answer as the question was not about ‘both retained and permanent [brigades] … in attendance’.
Its historically a matter whereby, s3, Fire and Rescue Act NSW 1989, which are only definitions, as you have highlighted. So if we are going to refer to definitions within legislation as a suggestion of the larger issue, then I offer the word “IF” (with my highlight on the word “IF”) as follows.
Firstly “IF” is not a word for setting a definition in stone, The definition is inclusive therefore and so, open to the notion of “If”
Lets see.
NSW Fire and Rescue Ac 1989 S3
“officer in charge” , in relation to a place at which a fire brigade is present, means the Commissioner or, if the Commissioner is absent–
(a) the person for the time being in charge of any members of a permanent fire brigade present at that place, or
(b) “IF” no members of a permanent fire brigade are present, the person for the time being in charge of any members of a retained fire brigade present at that place.
Yet “IF” on the other hand, a member of a permanent Fire Brigade IS actually present, then that person is, for the time being, the officer-in- charge of any members of a retained fire brigade “present at that place” .
That “place” could be any place related to the presence a fire brigade, either in station or in the field.
Perhaps we could rely less on rubbery “definitions” as you have posed, in varying legislation, as some sort of valid interpretation of emergency service legislation generally.
That would be helpful.
Glenn, that’s an interesting argument but you cannot ignore the statutory definition if you want to understand what the law says. Law is often an exercise in semantics.
The question here was whether a person who is a member of a permanent brigade who responds as a retained firefighter on their rostered day off is necessarily the member in charge at the fire.
If we go back to the definition of s 3, first the retained firefighter whose day job is a permanent firefighter I would suggest is not:
1) In charge of any members of the permanent brigade. If he or she is the only member of the permanent brigade there present then there are no other members to be ‘in charge of’. If there is more than one member of the permanent brigade responding as part of the retained brigade, they are not in charge of each other as the relevant command structure is the retained brigade.
2) Further it is arguable that the retained firefighter is not at that time, relevantly a member of the permanent brigade. To make that argument one has to consider whether a ‘member of the permanent fire brigade’ means a member not ‘on duty’. If it does, then the lowest ranked off duty firefighter could turn up to a scene where an experienced retained brigade was working and claim to be ‘the person for the time being in charge of any members of a permanent fire brigade present’ (even if that is only themselves) and therefore the ‘officer in charge’. I don’t think that is intended. There may be a process to recall a member to duty and to authorise him or her to take charge but the mere fact that a person’s day job is as a permanent firefighter does not make them the officer in charge of any fire they chose to turn up to.
If that is correct then even though for some retained firefighters, their day job is as a permanent firefighter, there is no relevant members of the permanent brigade present. The phrase ‘the person for the time being in charge of any members of a permanent fire brigade present’ has to mean on duty and I suggest where there is more than one firefighter present and a chain of command between them applies. .
If I’m wrong on that, the Commissioner could solve the issue by delegating his or her powers (as they probably do) down the chain of command (Fire and Rescue NSW Act 1989 (NSW) s 83). If the captains of retained Brigades are given a delegation from the Commissioner, then they are, at that moment ‘the Commissioner’.
We have to rely on definitions set out in legislation else we don’t know what the legislation means. You have put forward an argument and of course that is all these are, arguments. The actual outcome of any issue will of course depend on the facts on a given day. However, I stand by my conclusion that the Act does not say that if a member of a retained brigade is also a member of a permanent brigade then he or she must be the officer in charge at the scene of a fire, rather than the captain of the retained brigade.
Thank you Michael.
When we go to court, as we do, the courts tend to have a propensity away from matters pertaining to the Fire Brigades Act, and for that matter, NSW legislation generally. The court wanted to simply identify what was reasonable and what was unreasonable and who had a case to answer for.
I understand that legal interpretation is helpful, and thank you for that. However it had been my experience in terms of NSWFB in Local Court, District Court, Land and Environment Court, NSW Coroners Court ( for instance Caines Industries Silo Explosion 1999), and NSW Supreme Court (Bushfires at Warragamba and at Silverdale),
Never, in each circumstance, at least from my experience, was the Fire Brigades Act was ever called into question. I never saw the court undertake an interpretation of the Fire Brigades Act.
Apart from one.
And that is in relation to circumstances whereby a permanent officer was in attendance at a place where a retained Brigade was also in attendance. The Coroner in this respect made a finding that counters your interpretation, at least in a specific situation, as apart generalities as they may exist in this respect.
Glenn
I agree with much of what you say.
Most court cases are not about the law, they are about the facts. The law is not the issue. In law schools we spend all our time reading the decisions of the superior courts – the Courts of Appeal and the High Court of Australia – so law students graduate thinking that is what legal practice is about, but it isn’t. In most cases everyone knows the law, the question is what facts can be established? There used to be a column in the NSW Law Society Journal where young lawyers would write about their jobs and a standard question was ‘when did you last read a case?’. So you are right, legislation is rarely discussed at least not at trial and it is not a matter to ask witness about. Where questions of law do arise, these are matters between the lawyers and the judge, not matters that require evidence.
Courts have however been called to interpreted the current Act and its forbears. There are many cases on the meaning and application of s 78 (Protection from Liability) or its predecessors, starting with Ardouin v Board of Fire Commissioners and most recently Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 (available at https://www.caselaw.nsw.gov.au/decision/549f7e753004262463aa6a9d) discussed in more detail below. Just because you as a witness did not discuss it does not mean the law is not discussed. Certainly the Rural Fires Act was extensively discussed in decisions such as Warragamba Fires and the 2003 Canberra litigation (see https://australianemergencyla w.com/2016/01/08/liability-for-fire-a-review-of-earlier-posts/).
Now the question this post was asked to address was ‘if a permanent firefighter is part of a retained brigade, is that firefighter necessarily the officer in charge?’ That may be a question that will, as you say, never arise in court, but that doesn’t mean that there is no legal answer. My answer is that s 3 does not require the conclusion that they are the officer in charge. The fact that the question is unlikely to arise in court is not relevant to my objective here.
You refer to the Rathmines silo fire. The coroner’s findings are not listed on the webpage of the Coroner’s Court, but one can find details of the prosecution of NSW Fire Brigades (as they were then) – Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 (available at https://www.caselaw.nsw.gov.au/decision/549f7e753004262463aa6a9d). (Remember too that although we talk of ‘Coroner’s courts’ Coroners are investigators not adjudicators. They do not determine legal rights and responsibilities. They do not deliver binding judgments on what the law is, or is not).
In that case a retained fire brigade was first on scene. They were soon assisted by a permanent station officer who was despatched to the scene along with a hazmat team. At [29] of his judgment, Boland J says:
But that is not the situation that I am discussing. SO Evans was not simply there, he was sent there to take control and he was the officer in charge of the permanent fire fighters. In that specific situation he was, by virtue of s 3, the ‘officer in charge’. But the court did not say (and I am willing to bet the coroner did not say) that any permanent officer who happened to be there was necessarily the officer in charge.
As you say, courts are often most concerned with what was ‘reasonable’. Section 3 says that the officer in charge is “the person for the time being in charge of any members of a permanent fire brigade present at that place”. That was SO Evans at the Rathmines Solo Fire; it is not a person who is a member of a permeant brigade but today has turned out as part of a retained brigade and is not ‘in charge’ of anyone. That is what s 3 says. I agree that a court would however question what was ‘reasonable’. If that permanent officer had great experience, it would not be reasonable for the OIC to refuse to listen to that officer’s advice or concerns. It would be unreasonable if FRNSW had a culture where people could not raise concerns or suggestions with the OIC. And FRNSW has the option to appoint someone as OIC, (as discussed in an earlier comment, by delegation from the Commissioner).
But is a permanent fire fighter who, on his or her days off joins a retained brigade, necessarily the officer in charge? Whether you’re looking at s 3 or ‘what is reasonable’ the answer has to be ‘no’ and nothing arising out of the Rathmines incident is inconsistent with that position.