Today I’m asked about the status of retained firefigthers in Tasmania. The question I’m asked is ‘are volunteer fire fighters considered employees under the State Service Act 2000?’ I’m told that:
Volunteer fire fighters would also include ‘Retained’ fire fighters who are paid a retainer for attendance at incidents and training, however there is no formal application process and these positions are generally awarded within the volunteer brigade management and are not paid under any formal award as such.
Retained fire fighters do receive a payslip from the Department of Police Fire and Emergency Management and this contains an Employee number, with a classification/award of Retained Volunteer Pay.
The relevant section of the State Service Act would be the interpretation of employee I suspect.
I confess, this on has got me stumped.
Who is the employer?
The State Service Act 2000 (Tas) governs the employment of state public servants. Section 6 says ‘The State Service consists of Heads of Agencies, holders of prescribed offices, senior executives and employees’. An agency is a government department or State authority listed in schedule 1 (s 3(1) definition of ‘agency’). The Department of Police, Fire and Emergency Management is listed in schedule 1, so is an ‘agency’, but neither the State Fire Commission nor the Tasmania Fire Service are. The employer of members of the state service is the Minister administering the State Service Act (s 14).
Tasmania has a single fire service constituted under the Fire Service Act 1979 (Tas). The Tasmania Fire Service is under the control of the State Fire Commission. The Commission is a separate legal entity that can sue and be sued and enter into contracts in its own name (s 7(2)). The Commission is subject to Ministerial direction (s 11(1)) but this (s 11(2)):
… does not have the effect of –
(a) making the Commission the servant or agent of the Crown for the purposes of this or any other Act; or
(b) conferring on the Commission any status, privilege, or immunity of the Crown.
My first conclusion would be that the State Fire Commission is not an agency for the purposes of the State Service Act and employees must be employed under the Fire Service Act, not the State Service Act. But on that conclusion I’m clearly wrong.
First s 24 of the Fire Service Act says:
Subject to and in accordance with the State Service Act 2000, persons may be appointed or employed for the purposes of this Act.
Second, if firefighters are employed under the State Service Act 2000 then their presumptive employer is the Minister administering that Act. There is a enterprise agreement between the United Firefigthers Union of Australia Tasmania Branch and the Minister administering the State Service Act 2000 (Tas) setting out the terms and conditions of Fire Service employees (see Firefighting Industrial Agreement 2022). Further, the Tasmanian Firefighting Industry Employees Award cl 7 also confirms that an employee is employed under the State Service Act 2000 (Tas) and that the employer is ‘the Minister administering the State Service Act 2000’ (cl 7 definitions of ‘employee’ and ‘employer’).
Finally s 130A of the Fire Service Act says:
(1) The salaries, wages, and allowances payable to all persons appointed or employed pursuant to this Act shall be payable by the Commission.
(2) For the purposes of the Workers Rehabilitation and Compensation Act 1988 and the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011, the Commission shall be deemed to be the employer of all persons appointed or employed pursuant to this Act.
One can see that the references in s 130A(2) apply to only two acts and say in that case the Commission is the deemed employer. If the Commission was the employer for all purposes s 130A(2) would not be necessary.
Although I would conclude, based on the Fire Service Act ss 7 and 11 and the State Service Act ss 6 (Constitution of State Service), 11 (Establishment of Government Department and State authorities as agencies) and Schedule 1 that employees of the Fire Service are not employees under the State Service Act 2000 (Tas) rather they are employees under the Fire Service Act 1979 (Tas) I have to admit that I am wrong. Even so it remains unclear to me how the firefighters are brought under the State Service Act.
Are retained firefighters employees?
Let us assume, however, that it is the case that Tasmanian firefighters are employed under the State Service Act. Are retained firefighters employees?
Neither the Fire Service Act, the Fire Service (Miscellaneous) Regulations 2017 (Tas), the enterprise agreement or relevant award, or the Tasmania Fire Service website, refers to ‘retained’ firefighters. The website of the Tasmanian Retained Volunteer Firefighters Association is ‘coming soon’ so it provides no information on who retained firefighters are or the basis of any paid retainer.
The Fire Service Act talks about permanent and volunteer members. A permanent member is ‘a member of a brigade who is an employee appointed pursuant to section 24’ (and s 24 is quoted, above). A volunteer is a ‘a person who is not a permanent member’. People are either employees or volunteers, there is no middle category of ‘retained’ firefighter.
The State Service Act does not apply to ‘a person who is employed in an honorary capacity only’ (s 5(2)(b)): – whatever that means.Being ‘employed’ and working in an ‘honorary capacity’ are mutually exclusive. If you’re an employee you’re entitled to be paid. If you are working in an honorary capacity, you are not an employee.
The State Fire Commission may pay a ‘special gratuity’ of not more than $1000 ‘respect of voluntary or special services that the person has rendered to a brigade or group of brigades (Fire Service (Miscellaneous) Regulations 2017 (Tas) r 4). The Commission may also reimburse the out-of-pocket expenses incurred by volunteers (r 5). So a person who is ‘employed in an honorary capacity’ and/or receives a gratutity or reimbursement of expenses is not an employee.
But we’re told retained firefighters ‘receive a payslip from the Department of Police Fire and Emergency Management and this contains an Employee number, with a classification/award of Retained Volunteer Pay’ which doesn’t sound like a gratuity or reimbursement of expenses.
The Australian Tax Office lists criteria to suggest someone is an employee rather than independent contractor. Indicia that someone is an employee are:
Control: your business has the legal right to control how, where and when the worker does their work.
Integration: the worker serves in your business. They are contractually required to perform work as a representative of your business.
Mode of remuneration: the worker is paid either:
• for the time worked
• a price per item or activity
• a commission.
Ability to subcontract or delegate: there is no clause in the contract allowing the worker to delegate or subcontract their work to others. The worker must perform the work themselves and can’t pay someone else to do the work for them.
Provision of tools and equipment: your business provides all or most of the equipment, tools and other assets required to complete the work; orthe worker provides all or most of the tools, but your business provides them with an allowance or reimburses them for expenses incurred.
Risk: the worker bears little or no risk. Your business bears the commercial risk for any costs arising out of injury or defect in their work.
Generation of goodwill: your business benefits from any goodwill arising from the work of the worker.
I would suggest that retained firefighters are subject to the direction and control of the Fire Service, when on firefightng duties they are doing the business of the Fire Service, not their own business, they cannot delegate someone else to do their work, the TFS provides uniforms and protective equipment and carries the risk and when they do a good job, people recognise that as a good job by the TFS. If that’s true, then it sounds like they are employees.
In Mifsud v Fire and Rescue NSW Band Incorporated [2024] FWC 853 discussed in the post FRNSW bandmembers cannot seek remedy for unfair dismissal (May 20, 2024), however, the Fair Work Commission discussed honorarium’s paid to bandmembers. Deputy President Wright said (at [41]-[45]):
… since its inception, the Band members have always been regarded as volunteers who give their time to promote the heritage, traditions and public image of Fire and Rescue NSW. As time progressed the NSW Fire Brigade and then later Fire and Rescue NSW has provided a yearly grant to the band to pay for instruments, uniforms, travel costs and other ancillary costs that allow the Band to play at a schedule of FRNSW events and occasional other events. The largest costs to come out of this grant is the honorariums for the musicians to help cover their costs. These honorariums are prescribed through a Service Level Agreement with FRNSW…
The Respondent has no employment contracts with any members of the FRNSW Band and the band members are not employed under a modern award or an enterprise agreement. The Respondent does not deduct income tax payments, superannuation or any other deductions from these ex-gratia payments as they are not regarded as wages or salary but voluntary payments to cover the costs of the Band members.
The legal intent of the Protocol is to provide the mission of the Band and structure and directions on how to achieve this; it has never been considered as any form of employment contract.
And at [52]-[53]:
It is well established that an employment relationship exists only where a person agrees to perform work pursuant to a ‘contract of service’ or contract of employment. If there is no contract of employment identified between the parties, then Mr Mifsud and Mr Webster cannot be employees of the Respondent.
Numerous decisions of this Commission refer to the basic essential requirements for an agreement to be legally enforceable as a contract as being:
· The parties must have reached agreement as to the terms of the contract.
· The agreement must involve the provision of “consideration” by each party.
· The agreement must be intended by the parties to be legally enforceable.
· The terms of the agreement must be certain and complete and there must be no element of illegality or any other vitiating factor that would deprive the agreement of legal effect.
It begs the question of when is someone, who is paid a regular amount to do work, not an employee but a volunteer in receipt of an honorarium and when are they an underpaid, exploited worker?
Based on the decision in Mifsud my inference is that if retained firefighters are retained by individual brigades, there is no binding contract, and the retainer is identified as either being an allowance to compensate for expenses or a gratuity (Fire Service (Miscellaneous) Regulations 2017 (Tas) r 4 and 5)) then that is not enough to make them employees.
Conclusion
The conclusion is that I cannot reach a conclusion. I am not an industrial lawyer and this question is too far out of my area. My first conclusion is that firefighters are employed under the Fire Service Act not the State Service Act but on that point I’m clearly wrong.
As for employment status, if Mifsud v Fire and Rescue NSW Band Incorporated is correct then on the one hand an agency can avoid employment conditions by saying that a person is not engaged as an employee and then pay less than award rates, no superannuation and no tax; but on the other view that’s just unlawful underpayment.
Clearly this is an industrial matter that I am not qualified to address. If there are any Tasmanian industrial lawyers, or representatives of the Retained Volunteer Firefighters Association reading this blog who want to shed light on this question, I’d welcome your comments or thoughts.
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.
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