This question was sent to me some time ago but go accidentally put in the ‘asked and answered’ box before it was, in fact, answered. I apologise to my correspondent for the delay.  The question revisits the feared Work Health and Safety Act 2011 (NSW). I am told:

Work Health & Safety is the subject of much discussion within the NSW RFS and as an organisation the RFS has come a long way. However there remains some contention about the level of responsibility and accountability of volunteer members with the ranks.

Hence, I’d like to pose several questions based on the below hypothetical, which I hope can provide some insight for myself and any other readers.

Hypothetical: A rural fire brigade (or more) attends an MVA (or other form of incident) in conjunction other emergency services, at this incident several volunteers including the senior most volunteer (an officer) fails to wear any PPC or limited PPC e.g., jacket only. 

The MVA occurred on a busy road and in poor visibility.

WorkSafe NSW become involved due to a near miss or a significant injury (or death) occurring to a member due to the lack of PPE be worn by the injured member.

Note: It is a known issue across the organisation that some members fail to wear any or only wear minimal PPC/E whilst attending incidents.

Questions:

A.        What level of personal liability does a volunteer and the senior most volunteer have should SafeWork choose to issue infringement notice/s for failing to comply with the WHS Act and RFS SOPs and Service Standards relating to WHS?

B.        What level of personal liability does the Duty Officer (or FCO) have considering that they are neither an Officer or PCBU (as defined by the WHS Act) and they were not present nor were aware of the safety issue at this incident?

C.        What level of personal liability does an Assistant / Deputy Commissioner (Officer), or the Commissioner (PCBU) have, as it is known that this is an ongoing issue within the NSW RFS?

D.        Is there any personal liability to other emergency service workers, say the Police Officer in overall control of the incident if they fail to intervene?

E.         Would the above hypothetical have any impact on a workers compensation claim (income support) if it was known that the member wearing insufficient PPC (or none at all) was a contributing factor towards their injury?

Of course this is a place for legal discussion not legal advice.  I take it that this is indeed a hypothetical, not an actual scenario.  If it was an actual scenario advice should be sought from a lawyer with a relevant practising certificate (and that is not me – see ‘Today, I am a lawyer, but not a barrister or solicitor’ on my ‘About’ page).

I have previously written about the 2011 Act and its application to firefighting – see for example:

Much of this answer will repeat what I said in those earlier posts.

First, “The problem with commenting on a scenario such as the one I’ve been given here is that there are not really enough facts.  A prosecution depends on so many factors… [and] A hypothetical scenario misses many essential facts…”. The WorkSafe inspector would need to consider the whole situation and it seems to me it would be difficult to envisage a situation where one could say, with confidence, that the ‘near miss or a significant injury (or death) occur[ed] … due to the lack of PPE’.  There has to be a lack of awareness by others, lack of lighting, why wasn’t the street closed etc.  Identifying the ‘root cause’ as a lack of PPE seems problematic but let me, for the sake of the argument, assume that is the case.

The Work Health and Safety Act 2011 (NSW) s 34 says that a volunteer is required to comply with the duties set out in ss 28 and 29 of the Act.  Section 29 is in much the same terms as s 28 but relates to duties of persons at someone else’s workplace and will not be discussed further.  Section 28 says:

While at work, a worker must–

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

Question A

If the volunteer is not complying with the RFS policies on wearing PPE then prima facie they are in breach of s 28 and could be prosecuted. That carries a maximum penalty of a fine of 575 penalty units (s 33). A penalty unit is $110 (Crimes Sentencing Procedure Act 1999 (NSW) s 17) so the maximum penalty is 575 x $110 = $63 250. Where the breach of the duty ‘exposes an individual to a risk of death or serious injury or illness’ then the maximum penalty is 1730 penalty units or $190 300.

Question B

It’s hard to envisage what liability a person who was not there (such as a duty officer or fire control officer) would have. I cannot see what duty they would have breached.  Further it is not sufficient that a risk occurred, the prosecution has to prove that there was something else the defendant could and should have done that would have made a difference (Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1).   What could the FCO have done? Put a message on the radio saying ‘everyone wear your PPE’? And what difference would that have made? 

I cannot see any potential ‘personal liability [for] … the Duty Officer (or FCO) … considering that they are neither an Officer or PCBU (as defined by the WHS Act) and they were not present nor were aware of the safety issue at this incident’.

Question C

An officer for the purposes of the Act is (s 247)

A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Crown is taken to be an officer of the Crown for the purposes of this Act.

The RFS is an ‘undertaking of the Crown (Government Sector Employment Act 2013 (NSW) Schedule 1) so I shall accept, without further demonstration, that an Assistant or Deputy Commissioner and the Commissioner are all officers of the Crown.  It is the Crown in Right of New South Wales, not the Commissioner, that is the PCBU (see for example 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).

An officer ‘must exercise due diligence to ensure that the person conducting the business or undertaking’ (in this case the Crown) meets it WHS duties (s 27).  Due diligence means:

(a) to acquire and keep up-to-date knowledge of work health and safety matters, and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and

(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and

(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and

(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)-(e).

The duties of an officer are much more abstract that attending to every response. They need to make sure that they have done risk assessments to select appropriate PPE, issued PPE to members and have and have promulgated policies and training to remind people to wear their PPE.  If they know there is reluctance to wear the PPE they may need to ensure there is consultation with workers to identify why – is the PPE not suitable? They also need to train responders in other risk management steps – at an MVA should they close the road? What lighting is available? Remember that PPE is the last and least effective way to manage risk and appears at the bottom of the hierarchy of control measures (see SafeWork NSW, Control Measures (undated)).

There is certainly not enough in the facts we’ve been asked to assume that would allow one to infer that the WorkCover Authority could prove, beyond reasonable doubt, that the officers had not exercised due diligence to attract personal liability.

Question D

No, there would be no ‘personal liability to other emergency service workers, say the Police Officer in overall control of the incident if they fail to intervene’. They don’t have command responsibility for the RFS.  The incident may be the workplace of many agencies but if we accept for the sake of the argument that the police are at their workplace and at the workplace of the RFS, then their duty vis-à-vis the RFS is (s 29) to

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

That is their duty is to make sure that they don’t put the RFS firefighters at risk and if the RFS asks the police to move back from the fire, to do so.  That is not a duty to direct the RFS how to go about their business. 

Question E

No; workers compensation is a no-fault scheme. The Workers Compensation Act 1987 (NSW) s 17, which applies to volunteer firefighters by virtue of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) says:

Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received–

(a) acting in contravention of any statutory or other regulation applicable to the worker’s employment, or of any orders given by or on behalf of the employer, or

(b) acting without instructions from the worker’s employer,

if the act was done by the worker for the purposes of and in connection with the employer’s trade or business.

The unasked question

The unasked question is ‘so who would be liable?’  I’ve indicated that the individuals could be liable but that does not mean I think that they will be. In my earlier post Questions about the new Work Health and Safety laws (February 5, 2012) I said:

The National Compliance and Enforcement Policy issued by Safe Work Australia indicates that the relevant law enforcement agencies have a number of options and tools to encourage compliance with work health and safety duties that fall far short of prosecution.   A minor mistake by a volunteer in emergency circumstances is unlikely to result in prosecution as that would not be an effective way to remedy the issue.

One can never say never, so the cautious lawyer would say, in response to the question asked, it is extremely unlikely that a prosecution would occur in the situation described.   I would go further and say it so unlikely as to be regarded as far-fetched and fanciful.    Fire fighters should remember that paid fire fighters have always been subject to work health (or occupational health as it was called) and safety duties and they have never been prosecuted for breaches of the relevant Act.   Victoria SES was prosecuted over the death of a volunteer during a training exercise and NSW Fire Brigades (now NSW Fire and Rescue) were prosecuted over failings in their approach to a fire in a silo that resulted in four factory workers being killed.  In neither case was a volunteer or individual prosecuted.  Volunteers have also been subject to OHS law in the ACT, the NT and Queensland but again have not been prosecuted.

(See also SafeWork NSW prosecution guidelines (Last updated May 2020).)

Volunteers are turning out as part of an organisation, and it is the organisation – the Person Conducting the Business or Undertaking (the PCBU) – that is responsible for ensuring that there is a culture of safety. The PCBU is the Crown in Right of NSW.  The Act binds the Crown (s 10) so it is the Crown that has the primary duty of care (s 19).

[The Crown]…  must ensure, so far as is reasonably practicable, the health and safety of–

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

If there is a culture of non-compliance then it is the Crown that is responsible even though the Crown acts through its employees (the Commissioner and others) and its agents (those down the chain of command with responsibility for compliance, down to brigade captain and team leaders). That the Crown acts through those people does not make them personally liable but may show that the Crown has failed in its duties. 

Volunteers

Let us recall that the WHS Act is now 11 years old.  I am unaware of any volunteers being prosecuted for breach of the Act or its equivalent in the UK. In a paper due to be published in ‘The Volunteer’ (NSW SES VA) I say:

…  in Scotland, the death of a Scottish firefighter in 2009 led to criminal charges being brought against the Scottish Fire and Rescue Service, not the relevant incident controller or commander. In 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 it was NSW Fire Brigades (now Fire and Rescue NSW), not the incident controller or commander, that was prosecuted for failing to ensure that the firefighters had adequate training to deal with a fire in a grain silo.  …  It was Victoria SES that was criminally liable when a volunteer was killed during training. 

When a volunteer was killed when doing maintenance work at a council property, neither the council staff nor the management committee that were liable.  The responsibility to ensure safe work lay with the Council – SafeWork NSW v Camden Council [2021] NSWDC 709.

You can see details of WorkSafe prosecutions on the WorkSafe Website – https://www.safework.nsw.gov.au/compliance-and-prosecutions/prosecutions.  You can see there that it is almost unheard of for individual workers to be prosecuted (I can find none, but I recognise the limits of my capacity to work through the cases, so there may be some). The defendants are always the relevant company and sometimes directors.

Conclusion

As noted, speculation on who will be liable, in particularly criminally liable for a hypothetical is necessarily imprecise. Actual prosecution decisions depend on many factors and considerations (SafeWork NSW prosecution guidelines (Last updated May 2020)).  An investigator would need many more details to determine if there is potential liability.  In my view it is extremely unlikely that anyone would be personally liable in the circumstances described, but the Crown in Right of NSW may be.

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.