A Health and Safety Representative (HSR) with the NSW Rural Fire Service (RFS) issued a Provisional Improvement Notice (PIN) to the RFS (Work Health and Safety Act 2011 (NSW) s 90). The RFS asked Safework NSW to review the PIN (s 100).  An inspector appointed to review the PIN may confirm the PIN, confirm the PIN with changes or cancel the PIN (s 102).  I’m told that in this case, the inspector cancelled the PIN.

The HSR then sought an internal review of the inspector’s decision (s 224). I’m told that the internal review confirmed the inspector’s decision. The HSR now seeks an external review (s 229). The external review will be conducted by the Industrial Relations Commission.

The HSR has approached the RFS asking them to pay the applicant’s legal costs.  The RFS has refused.

Work Health and Safety Act 2011 (NSW)

The HSR relies on s 70(1)(f) which says:

(1) The person conducting a business or undertaking must–…

(f) provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by the regulations to enable the representative to exercise his or her powers or perform his or her functions under this Act,

The argument would have to be that providing funding to meet the HSR’s costs as the applicant before the Industrial Relations Commission is ‘reasonably necessary … to enable the representative to exercise his or her powers or perform his or her functions under this Act’.   Not surprisingly, the RFS has declined the request.

With respect to s 70(1)(f) however I cannot see that taking the matter for external review is ‘reasonably necessary’.  The HSR has issued a PIN that has been subject to two reviews.  One might consider that is all that is ‘reasonably’ required.  Even though the HSR is an eligible person (s 223) and is entitled to seek the external review (s 229) it does not follow that exercising every possible right is either necessary nor part of the HSR’s duties. It would be equally consistent to say that the HSR’s duties include accepting the decision of the SafeWork NSW referee.

RFS ex gratia legal assistance

The RFS has a policy on the payment of legal expenses (Service Standard 1.1.24 Assistance in Legal Matters for Members of the NSW RFS (9 May 2016)). That standard provides that the RFS will provide legal assistance in accordance with the Premiers Memorandum M1999-11 Guidelines for the Provision of ex Gratia Legal Assistance for Ministers, Public Officials and Crown Employees.  That memorandum appears to have been repealed and replaced with M2019-01–Guidelines for the Provision of Ex-Gratia Legal Assistance for Ministers, Public Officials and Crown Employees (not all that surprising given the RFS Service Standard was due for review in May 2021).  

The guidelines provide that ex-gratia assistance may be provided ‘where legal proceedings have been commenced, or are anticipated, against’ a relevant Minister, public official or employee. The guidelines refer to an employee, but the RFS clearly intend to apply to volunteers, and they too would, in any event, likely be classed as ‘public officials’. In any event the guidelines anticipate providing legal assistance to people who are the defendants in legal proceedings rather than the applicants in proceedings against the government.

Of course, if the obligation to meet the HSR’s legal costs arose under the Work Health and Safety Act, the Premier’s guidelines would be irrelevant. The guidelines themselves say

These guidelines are subject to any relevant statutes, for example, s.52 of the Independent Commission Against Corruption Act 1988 which sets out criteria for financial and legal assistance in relation to witnesses appearing before the Independent Commission Against Corruption.

If therefore s 70(1)(f) of the WHS Act required the RFS to pay the legal fees of the HSR then that would ‘override’ these guidelines (see also Arnott v SafeWork NSW and Fire and Rescue NSW [2024] NSWIRComm 1039).

The law is a self-help tool

A lesson many years in law has taught me is that it is a self-help tool. The law is available and provides many remedies, but it is up to aggrieved persons to make use of the tool. No-one is there to help. When people complain about their landlords or tenants, retailers or consumers, creditors and borrowers etc they discover that even if the law says that the other sides conduct was unlawful and there is a remedy, the person has to go to law.  Turning up to the government and saying ‘you wrote the law, you help me find a remedy’ doesn’t work. Legal aid is usually limited to criminal and family cases with very little left over for other civil type matters.

Here the issue is not the HSR seeking to vindicate a personal right or interest, rather I accept that they are pursuing what they believe is a legitimate WHS issue on behalf of the workgroup they represent but that does not mean that anyone is going to help fund that process when the Act has already provided for two reviews. The HSRs that can afford to go the Industrial Relations Commission would be those supported by their workgroup or more likely, by a trade union (see again Arnott v SafeWork NSW and Fire and Rescue NSW [2024] NSWIRComm 1039 where the applicant was supported by the Fire Brigade Employees Union).  Volunteers don’t have an industrial union and I would infer (but do not know) that the Rural Fire Service Association (the RFSA, a sponsor of this blog) is not willing or able to act for volunteers as a trade union is willing and able to act on behalf of employee members.

The WHS Act does provide some assistance. It does provide that where there is a WHS issue, a party, including an HSR, may ask ‘the regulator to appoint an inspector to attend the workplace to assist in resolving the issue’ (s 82(2)). Going down that route may be a way to get an independent interpretation of whether s 70(1)(f) would require the payment of the applicant’s legal costs in the circumstances.

Conclusion

To reiterate what I’ve said many times before, this is not the place for legal advice that is giving ‘advice to a person on their particular rights in a particular situation’ (see Law Society of NSW, Practising In NSW Under The Uniform Law: Unqualified Legal Practice).  In this situation I make no comment on the merits of the PIN or the RFS response to a request for legal assistance.  The only way to get a definitive answer here would be to consult lawyers who could look at the entire history of the matter and/or seek the assistance of an inspector (s 82). Ultimately, as Mr Arnott did, it may require getting the matter before the Industrial Relations Commission for a binding decision in the meaning of s 70(1)(f) in this context.

My conclusion, speaking generally, is that I cannot see that s 70(1)(f) would give rise to an obligation on the Person Conducting a Business or Undertaking to fund an application for external review lodged by an HSR where the issue has already been subject to a review and then an internal review.  I also cannot see that the RFS policy on providing assistance with legal costs would have any application in the situation described.  

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.