Today’s correspondent writes from Western Australia
… where the new Work Health and Safety Act 2020 came into effect on 31 March 2022. I saw your blog from 2018 (https://australianemergencylaw.com/2017/05/05/is-an-incorporated-bush-fire-brigade-a-bush-fire-brigade-for-the-purposes-of-the-bush-fires-act-1954-wa/) and wanted to discuss the potential or lack thereof, for a volunteer bush fire brigade to exist as an incorporated association.
We are grappling with question in your conclusion in particular which states –
The bigger question is ‘does the act of incorporation mean that the incorporated association is not the brigade created by the local government and governed by the Bush Fires Act 1954 (WA)?’
I am concerned that there is a more significant sector wide question which needs to be resolved (and which is addressed this in a report to the Shire of Waroona Council – item 11.3.1 https://www.waroona.wa.gov.au/council-meetings/ordinary-council-meeting/ordinary-council-meeting/90/documents/unconfirmed-minutes-ocm-may-2022.pdf ). There is a Statewide discussion happening on this with a three emergency services Acts under review to consolidate them into one Act. My view is that this should be not just an administrative exercise but that it represents a once I a generation opportunity to get a better outcome for the volunteer bush fire brigades.
The Unconfirmed Minutes of Ordinary Council Meeting of the Shire of Waroona, held on 24 May 2022 identify, at 11.3.1, that the issue is Council’s capability to manage the WHS risks associated with Rural Fire Brigades. The report, presented to Council, says:
… local government is no longer the right entity to be discharging the duty of care and the duty of provision of extreme risk bush fire management services in Western Australia. Western Australia, while its health and safety legislation is now in alignment with the rest of Australia, is now at odds with the rest of Australia in terms of State Government responsibility for volunteer bush fire brigades.
Local government is clearly unable to meet the management and duty of care expectations enunciated in the Work Health and Safety Act 2020 in the extreme risk area of bush firefighting. This new legislation exposes the gap between the extreme risk of bush fires and the capabilities of local governments to meet this risk. It has set up local government for failure if nothing is done to fix the fundamental question – what entity is best able to meet the responsibility for supporting volunteer bush fire brigades. This responsibility must be placed in the hands of a State Government department or agency with appropriate expertise, capabilities and resourcing under the emergency services banner to adequately address and manage the risks associated with bush fires and support volunteers in this endeavour.
In an earlier post (The Commissioner and WA SES units (August 8, 2020):
I described the WA law relating to fire brigades as a ‘mismatch’ with the Fire and Emergency Services Act 1998 (WA) superimposed over the old and still in force Bush Fires Act 1954 (WA)) and the Fire Brigades Act 1942 (WA). Like retrofitting solar panels or central heating to an old house, it may work but it’s better to install these things from the start.
I am aware of the review that is now underway in WA to consider consolidating the States three emergency services Acts into a single consolidated emergency services Act. I had the privilege of being in Perth on 9 July as a guest of the Western Australia SES Volunteers Association who held a Local Managers Workshop to discuss the implications of combining the legislation.
I can now turn to the question.
Work Health and Safety Act 2020 (WA)
The critical issue in the Work Health and Safety Act 2020 (WA) is the concept of the person conducting the business or undertaking, the PCBU. Relevantly s 5 of the Act says:
(1) For the purposes of this Act, a person conducts a business or undertaking —
(a) whether the person conducts the business or undertaking alone or with others; and
(b) whether or not the business or undertaking is conducted for profit or gain….
(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.
‘Volunteer association’ is defined to mean:
… a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.
The Bush Fires Act 1954 (WA)
The Bush Fires Act 1954 (WA) s 41(1) says:
For the purpose of carrying out normal brigade activities a local government may, in accordance with its local laws made for the purpose, establish and maintain one or more bush fire brigades and may, in accordance with those local laws, equip each bush fire brigade so established with appliances, equipment and apparatus.
If the local government establishes a bush fire brigade that is not an incorporated entity then the Council must be the PCBU.
If the Brigade is incorporated under the Associations Incorporation Act 2015 (WA) (as some are) then it is a separate legal entity. Depending on the arrangements that may be sufficient to mean that it is the incorporated entity and not the council that is operating the fire brigade. Or, given s 5(1)(a) both the Association and the council could be the PCBU.
If the council is the PCBU
If the council is the PCBU then the council has a duty to ‘ensure, so far as is reasonably practicable, the health and safety of’ the rural fire service volunteers. The report to the Shire of Waroona raises the issue, rightly, that a council may not have the resources, knowledge or capacity to meet that duty. Fire fighting has progressed a long way from volunteers in white overalls with a stick to beat out fires. Ensuring health and safety requires high levels of equipment including appliances and PPE and training.
In WA fire services are funded by the emergency services levy (Fire and Emergency Services Act 1988 (WA) Part 6A) so the issue should not be one of funding but fire fighting has become a professional exercise and the argument that fire brigades should be led and guided by experts in the field must have some attraction.
It is not for me to say what capacity councils have and no doubt it varies across councils, but the assertion that there is an ‘extreme risk of bush fires and the capabilities of local governments to meet’ the risk to firefighters is not unreasonable.
The first conclusion is that the current Act may well expose (at least) some councils to a risk management obligation that is beyond their capacity. The reaction to that might be to disband their fire brigade.
If the council is not a PCBU
To add further complexity, an incorporated Brigade can be a volunteer association. SafeWork Australia in their publication Legislative Fact Sheet Series: Volunteer Organisations and the Model Work Health and Safety Act says:
Volunteer organisations range from small informal community groups to large incorporated organisations. They may be unincorporated and incorporated associations. The WHS Act makes it clear that a ‘volunteer association’ does not conduct a business or undertaking and therefore does not owe duties under the WHS Act.
If the fire brigade is operated by the incorporated entity such that the Council is not the PCBU then it may be that no-one has an obligation to comply with the Act and firefighters are not owed the protections set out in the Work Health and Safety Act. This should be a major concern to firefighters.
I think the better analysis, given s 41 of the Bushfires Act, is that the Council is the PCBU even if they are conducting the undertaking of the fire service ‘with’ the incorporated legal entity.
It is my view (recognising I’m writing from a distance) that emergency service units as separate incorporated entities creates ambiguity and unnecessary levels of administration for no obvious advantage. Emergency service units are likely to be better served existing as part of a state agency. One concern people have is legal liability and some belief that incorporation provides some protection but being part of the government, so if someone wants to sue the defendant would be the State, rather than the Local Bushfire Brigade Inc. is much better protection. Being part of a state institution, without either local government or an incorporated association would make it clear who owed the health and safety duties to firefighters.
For a discussion on some of these issues see:
- Insurance for WA SES units (June 24, 2022);
- Revisiting the status of volunteer rural fire brigades in Queensland (March 9, 2018);
- Should a NSW RFS brigade retain its incorporated status? (February 16, 2018);
- Is an incorporated bush fire brigade a ‘bush fire brigade’ for the purposes of the Bush Fires Act 1954 (WA)? (May 5, 2017);
- RFS brigades entering into a contract (March 1, 2015);
- Status of Queensland Rural Fire Brigades (September 10, 2014).
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.