Today’s question comes as a comment on the post FRNSW responding to a s 44 fire (March 19, 2018). The comment/question is ‘if there is a section 44 so say a strike team to a bush fire can my employer stop me from attending?’ 

The answer to this question is a bit ‘yes and no’.

Federal law

The Fair Work Act 2009 (Cth) provides for community service leave.  Section 108 says ‘An employee who engages in an eligible community service activity is entitled to be absent from his or her employment’ for the time they are engaged in the community service activity.  The definition of ‘community service activity’ includes ‘a voluntary emergency management activity’ (s 109(1)(b)).  Section 109(2) tells us that:

An employee engages in a voluntary emergency management activity if, and only if:

An employee engages in a voluntary emergency management activity if, and only if:

(a) the employee engages in an activity that involves dealing with an emergency or natural disaster; and

(b) the employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity); and

(c) the employee is a member of, or has a member-like association with, a recognised emergency management body; and

(d) either:

(i) the employee was requested by or on behalf of the body to engage in the activity; or

(ii) no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.

Fire and Rescue NSW is a ‘fire-fighting’ body and so is a recognised emergency management bodies (s 109(3)(b)).

An employee seeking such leave must give notice to their employer (s 110(2)):

(a) …as soon as practicable (which may be a time after the absence has started); and

(b) must advise the employer of the period, or expected period, of the absence.

The Fair Work Ombudsman says ‘There is no set limit on the amount of leave an employee is entitled to’, however s 108(b) says that the the ’employee’s absence [must be] … reasonable in all the circumstances.’ What is ‘reasonable’ would have to take into account how vital the person is to their employer’s operations and how long they want to be away. If a person’s absence means that the employer’s operations come to a halt then it may not be ‘reasonable’ to take any community service leave.

The Ombudsman’s fact sheet also says:

Community service leave forms part of the National Employment Standards (NES). The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract.

I am not an employment lawyer so don’t pretend to understand which employees are ‘covered by the national workplace relations system’ and which are not but suffice to say the system does not cover everyone. My correspondent would have to get advice from elsewhere as to whether they are ‘covered by the national workplace relations system’.

Discussion

Responding as part of the NSW Rural Fire Service is a voluntary activity but given this comment was made to a post about Fire and Rescue responding to a s 44 fire, I’ll assume my correspondent is a Fire and Rescue retained firefighter.

Arguably, responding as a retained firefighter with Fire and Rescue NSW is not a voluntary activity as retained firefighters are employed.  They are paid for their service in a way that is more than an ‘an honorarium [or] gratuity’, it is a part-time salary and their terms of employment are governed by the Crown Employees (Fire And Rescue NSW Retained Firefighting Staff) Award 2022  (September 2022). It is a second job.

On the other hand, a fire-fighter’s response is voluntary in the sense that it’s not compulsory. Presumably a retained firefighter can volunteer to respond as part of a s 44 strike team rather than be ordered or compelled to in the way that a reserve solider can be ordered into full time military service.

In the Serve your local community as an on-call firefighter: Candidate Information Pack Fire and Rescue NSW says (p. 12):

We value the support that employers give to their employees who work as an on-call firefighter. The support of employers is critical and invaluable, and without it some individuals would not be in a position to respond to emergency incidents in their local community.

And at p. 20

On-call firefighters must attend at least 33% of the total station responses in any six-month period…

They do not suggest that retained firefighters are eligible for community service leave, which they would be for any call out, not just a s 44 response. It may be that FRNSW wants to avoid giving advice and leave it to applicants to talk to their employers about availability and, as noted, community service leave is not available to all employees. 

My own interpretation is that where the Act says ‘the employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity)’ it is distinguishing between a volunteer and an employee rather than a person who can choose whether to attend this response or not.  The reference to ‘honorarium, gratuity or similar payment’ tells us that a volunteer who is reimbursed for their out of pocket expenses or is given a meal allowance is still engaging ‘in the activity on a voluntary basis’ whereas a person who is employed to respond (even if on a part-time, on-call basis) is not a volunteer.

I can find no case law to help interpret the section so it may be a matter that will be tested in the Fair Work Commission or Federal Court at some future date.

State law

The State Emergency and Rescue Management Act 1989 (NSW) Part 3A provides for employment protection for volunteer emergency workers. These protections apply along with the Federal protections discussed above (Fair Work Act 2009 (Cth) s 112).  That means they apply to employees who are eligible for community service leave as well as those who are not because they are not ‘covered by the national workplace relations system’.

The State protections only apply in the event of a declared state of emergency or where the Premier has made an order declaring that the employment protection provisions apply (s 60AA).  It follows that the provisions do not automatically apply when a s 44 order is made. The Premier must make a separate order under s 60D of this Act to extend the protections to a s 44 response.

Where there is a state of emergency (declared under s 33) or an order (s 60D) then the Act says:

60B EMPLOYEES TAKING PART IN EMERGENCY OPERATIONS PROTECTED FROM VICTIMISATION

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part, as a member of an emergency services organisation, in emergency operations to which this Part applies.

60C WHAT CONSTITUTES VICTIMISATION OF EMPLOYEES

An employer victimises an employee if the employer–

(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or

(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or

(c) otherwise injures the employee in his or her employment with, or engagement by, the employer.

Fire and Rescue NSW is an ‘emergency services organisation’ (s 3).

Conclusion

The question was ‘‘if there is a section 44 so say a strike team to a bush fire can my employer stop me from attending?’  The answer is ‘no’ if the employee is covered by ‘the national workplace relations system’, they have complied with the notice requirements, they are responding ‘on a voluntary basis’ and the request is reasonable in all the circumstances.

My interpretation is that responding as a retained fire-fighter is not responding ‘on a voluntary basis’ but I can see that the issue could be arguable. That may be a matter that will be tested in the future should an employer seek to penalise an employee for responding with FRNSW.

The answer is also ‘no’ where there is a state of emergency or an order under s 60D, employees (whether part of ‘the national workplace relations system’ or not) are protected by the State Emergency and Rescue Management Act, and cannot be victimised by being dismissed, for their emergency response. Those provisions would apply to both volunteer and retained fire-fighters.

Where those circumstances do not apply, then the employer can refuse to allow the employee to leave.

Under both the federal law and the state law, there is no obligation to pay the employee for their time when they are responding as part of their emergency service duties.

This answer has to be read subject to any local employment terms. A particular award, enterprise agreement or employment contract may make its own provisions for emergency services leave and anyone wanting time off must also consider the terms of their specific employment.

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.