Following my post RFS Operational officer deemed firefighter v2 (September 25, 2023) I received this question:
Your recent post around workers compensation payments and coverage for operational firefighters and Paramedics has sparked some considerable discussion within multiple SES Units around their entitlements.
Recently in discussions with a number of paid staff around Workers Compensation a NSW SES Deputy Zone Commander stated that “NSW SES Volunteers are covered for 100% of their weekly wage that they receive in their non-SES employment in the event that they are injured on SES duties”.
In addition, a Zone Commander stated words to the effect that “if SES Volunteers are injured assisting RFS in bush firefighting or support activities that they would also be covered the same as a NSW RFS Firefighter”. She also stated that there is “no difference between RFS and SES as we all do the same job serving our community”.
Several questions were raised by Volunteers present as to whether they were covered for 100% of their total salary package or whether there was an upper limit. The response by the paid staff member was to the effect that SES Volunteers would receive 100% of their salary package and that if Volunteers had personal injury insurance this would be “on top of workers compensation payments”.
There are a number of us that believe this information may not be a correct interpretation of the workers compensation coverage available to NSW SES Volunteers.
I would like your comments on the compensation available to NSW SES Volunteers in the event of total impairment and ceasing work –
SES volunteers are covered by the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW). That Act sets up two funds, one for firefighters and one for emergency and rescue workers. Section 26 says:
An emergency service worker or a rescue association worker who has received an injury (and, in the case of the death of the worker, the worker’s dependants) shall be entitled to receive compensation as follows:
…
(b) where total or partial incapacity for work results from the injury–the weekly payments of compensation prescribed by Division 2 of Part 3 of the Principal Act,
Section 10, relating to volunteer firefighters is in the same terms so the compensation for SES volunteers is the same as compensation for RFS volunteers.
The ‘Principal Act’ is the Workers Compensation Act 1987 (NSW). Division 2 of Part 3 of deals with ‘Weekly Compensation by way of Income Support’. In my earlier post I produced a table of weekly benefits based on my understanding of weekly benefits assuming no capacity to return to work. That table is reproduced below:
| Exempt workers – Firefighters, police, paramedics (pp. 14-15) | Non-exempt workers (p. 11) | |
| First 13 weeks | 100% of their pre-injury average weekly earnings or $2,423.50 whichever is the lower. | 95% of their pre-injury average weekly earnings or $2,423.60 whichever is the lower |
| Second 13 weeks | 100% of their pre-injury average weekly earnings or $2,423.50 whichever is the lower | 80% of their pre-injury average weekly earnings or $2,423.60 whichever is the lower |
| Thereafter | 90% of their pre-injury average weekly earnings or $570 per week, whichever is the lower | 80% of their pre-injury average weekly earnings or $2,423.60 per week, whichever is the lower, for up to 130 weeks |
The question is whether SES volunteers are exempt workers given they are not ‘firefighters, police [or] paramedics’. Schedule 6, cl 19H has ‘Provisions consequent on enactment of Workers Compensation Legislation Amendment Act 2012’ says that the 2012 changes to the ‘benefits amendments’ do not apply to claims made under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (cl 19H(4)). Clause 25 says ‘The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter…’ Recognising that this law is ridiculously complex it appears that SES volunteers are treated like police, firefighters and paramedics. This is confirmed by the State Insurance Regulatory Authority Workers compensation benefits guide – October 2023 p. 14 and following.
If that is correct their weekly benefits would be 100% of their pre-injury income or $2423.50 (whichever is the lower) for 26 weeks and then 90% of their pre-injury income or $570 (whichever is the lower) per week thereafter. No worker is guaranteed 100% of their pre-injury income under workers compensation and SES volunteers are no different.
It’s not the SES’s fault
This is not a policy choice of the SES. This is the effect of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) and the Workers Compensation Act 1987 (NSW). The SES don’t decide what the benefits are; the insurance scheme is run by icare and icare applies the law. I would also suggest that paid staff telling volunteers that they would receive 100% of their salary package reflects that they don’t know the answer rather than any intent to deceive. As the discussion on this blog show, this area of law is ridiculously complex and hard to find. I’m sure they’re told ‘volunteers are covered by workers compensation’ and that is true; but workers compensation is designed to under-compensate.
For further discussion on the limits of workers compensation for volunteers see Advice from the RFSA regarding workers compensation for RFS and SES volunteers (September 26, 2023).
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.
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