This story on Facebook has been brought to my attention by a couple of people – see Volunteer Fire Fighters Association VFFA ‘iCare fails RFS Volunteer’s Accident Coverage’ (https://www.facebook.com/share/p/boM5LvipBma6Usg2/?mibextid=oFDknk).  The gist of the story is:

… we have discovered that RFS Volunteers are Not covered by iCare should they be involved in an Injury/Accident while attending any formal RFS Meeting.

iCare, the RFS’s Insurers have refused a Volunteers Injury claim even though the Volunteer was formerly requested to attend “a Meeting” which was held within a Fire Control Centre. So, if you attend an organised Meeting called for by the NSW RFS, it now seems YOU are NOT covered by Workers Compensation for any Injury arising from your attendance before, during and after that Meeting; according to iCare.

The author of the post adds:

In delving deeply though into the BFERS Act (Bushfire, Emergency & Rescue Service Act), we find no specific coverage showing for NSW RFS Volunteers at Motor Vehicle Accidents, Flood Recovery, Search & Rescue Events, Call Outs via RFS Active that are NOT bushfire related, Ambulance Assistance Requests, the list could go on. 

I cannot comment on the specifics as I don’t know what the claim was for nor why it was rejected by iCare.  I can comment on the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).  This Act sets up the compensation scheme for amongst others, volunteer fire fighters in NSW.  Relevantly the Act says (s 7(1)) that it applies to:

…  personal injury received by a fire fighter–

(a) arising out of or in the course of fighting a bush fire, or

(b) arising out of or in the course of a relevant journey by the fire fighter in relation to a bush fire.

Bush fire is defined in s 5 to mean ‘a bush or grass fire or a fire in or at any building or a fire of any kind at which a rural fire brigade or fire fighter operates or is in attendance for the purpose of its control or suppression’.

Section 7(2) says they are also covered for:

… personal injury received by an official fire fighter (or a person of a prescribed class) arising out of or in the course of–

(a) the carrying out of an associated operation or work, or

(b) a relevant journey by the official fire fighter (or the person) in relation to an associated operation or work.

‘[A]ssociated operation or work’ is defined in s 8. That section says:

(1) An associated operation or work is–

(a) a bush fire preventive operation,

(b) preparatory work,

(c) work of a prescribed kind (which may, but need not, be related to bush fire fighting, bush fire preventive operations or preparatory work), or

(d) work which, in the opinion of the Self Insurance Corporation having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989, should be deemed to be work of a kind to which this paragraph applies.

(2) A bush fire preventive operation is–

(a) the burning, ploughing or clearing of firebreaks, or

(b) any other operation including (but without being limited to) the inspection of fire breaks or other works and the survey of areas for the purpose of detecting fires or ascertaining the need for precautions against outbreak of fire,

carried out by a rural fire brigade for the purpose of preventing the outbreak of bush fires or of restricting the spread of bush fires should they occur.

(3) Preparatory work is–

(a) the training or instruction of persons, by means of demonstrations, exercises, competitions or otherwise, in the fighting of bush fires, or in the carrying out of bush fire preventive operations, or

(b) the examination, preparation, maintenance, adjustment or repair of any vehicle, equipment or thing used or intended to be used by a rural fire brigade for the fighting of bush fires or for the carrying out of bush fire preventive operations,

and includes the giving or receiving of such training or instruction or the carrying out of or assisting to carry out such examination, preparation, maintenance, adjustment or repair.

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2023 (NSW) r 9 prescribes (for the purposes of s 8(1)(c)) that associated work includes fundraising work.  An associated operation or work is therefore also directed at fire fighting or training for fire fighting.

The Act does appear quite deficient when one considers the role of the modern Rural Fire Service compared to the earlier Bush Fire Brigades.  The Rural Fire Service today is part of the comprehensive emergency services network providing both urban and bush fire services, and assisting at all manner of emergencies and providing accredited rescue units.  Limiting compensation to bush fire fighting and training fails to recognise the reality of the modern RFS.

Volunteer firefighters can be brought under the scheme in that the definition of a ‘associated work’ includes ‘(d) work which, in the opinion of the Self Insurance Corporation having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989, should be deemed to be work of a kind to which this paragraph applies’ but that leaves it up the Self Insurance Corporation (in effect iCare) to decide whether they think work like attending a meeting or assisting the ambulance service should be covered.  One would hope that the Corporation, on advice of the Minister administering the State Emergency Service Act (not the Rural Fires Act, but it is the same minister) would accept that any work authorised by and forming part of a member’s duties with the RFS ‘should be deemed to be work of a kind to which this paragraph applies’.  I am not however aware of any public statement where the Self Insurance Corporation has made that determination and they may do that on a case-by-case basis.

Fire fighters who are tasked to assist the ambulance service could argue that they are deemed employees of the Health Administration Corporation (in effect NSW Ambulance) whilst they are engaged in ambulance work (ie ‘work in or in connection with the rendering of first aid to, or the transport of, sick or injured person’) ‘under the authority and supervision of or in co-operation with’ the Ambulance Service (Workplace Injury Management and Workers Compensation Act 1998 (NSW) sch 1, item 16).

Fire fighters could also come under the definition of an emergency worker if they are undertaking tasks at the direction of the SES. An emergency worker includes ‘a person who is a member of an organisation affiliated with the State Emergency Service under the approval of the Commissioner of the Service’ (Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2023 (NSW) r 5(b)).  An emergency worker is also someone who ‘in the opinion of the Self Insurance Corporation having regard to all the circumstances, should be deemed to be an emergency service worker for the purposes of this Part’ (s 23 definition of ‘emergency service worker’).  If there was an ‘approval’ from the Commissioner of the SES that the RFS was ‘affiliated’ for the purpose of performing ‘functions carried out under the State Emergency Service Act 1989, section 8’ (ie flood and storm response) or if, in the particular circumstances, the Self Insurance Corporation accepted that the member should be considered an emergency service worker  then RFS volunteers would be covered under Part 3 Emergency and Rescue Workers Compensation rather than Part 2 Bush Fire Fighter Compensation. 

RFS volunteers who are members of an accredited RFS rescue squad could argue that they are, or should be considered a ‘rescue association worker’ if injured at a rescue rather than a fire fighting operation (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 23 definition of ‘rescue association worker’, item (c)).

Apart from being necessarily complex that would have implications as the compensation paid to paramedics, police and fire fighters is different to that paid to others so if, in particular circumstances an RFS volunteer was considered an ‘emergency worker’ or ‘rescue association worker’ they would get different benefits than if they were, in the circumstances, a fire fighter.

This problem could be solved.  The Rural Fire Service is not a separate legal entity, it is a part of government. Employees are employed under the Government Sector Employment Act 2013 (NSW). Their deemed employer of public servants is the Industrial Relations Secretary.  The Workplace Injury Management and Workers Compensation Act 1998 (NSW) sch 1 provides that various people are ‘deemed’ employees including volunteers with Fire and Rescue NSW (not retained firefighters who are clearly employees) and volunteer or honorary ambulance officers.  That Act could have a provision to the effect that members of the RFS and members of the SES are deemed employees of the Industrial Relations Secretary, and they would therefore be entitled to workers compensation whenever they are ‘at work’ that is performing any of the tasks assigned to the RFS or SES in the same way that an employee of those organisations would be entitled to compensation.

The RFS position

The Rural Fire Service in Service Standard 7.1.3 Health and Injury Management says

2.19. Volunteers are entitled to make a claim for workers compensation if they sustain an injury or illness while performing firefighting duties or associated operations or work connected with a Rural Fire Brigade (known as authorised activities), as specified under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

2.20. A definition and examples of authorised activities can be found in the fact sheet Volunteer Workers Compensation for Injury or Illness.

The fact sheet is on the RFS intra-net and I cannot access it so I cannot see if it records any agreement with or determination by the Self Insurance Corporation to recognise other RFS duties as ‘work which… should be deemed to be work of a kind to which … paragraph [8.1] applies’.

This case

In this case however the VFFA assumes that the one person who refused the claim speaks for the entire iCare process.   We don’t know what claim was made nor why it was refused. It may be that the person reviewing the claim was wrong.  There may have been other grounds why the claim was refused. One cannot draw a conclusion, from one claim and without access to the reasons that ‘YOU are NOT covered by Workers Compensation for any Injury arising from your attendance before, during and after that Meeting; according to iCare.’

The applicant can challenge the decision to reject a claim in the Personal Injuries Commission and then there would be evidence of iCare’s attitude to, and interpretation of the Act and there would also be a chance for a binding decision on whether the Self Insurance Corporation should accept that performing authorised RFS duties comes within the definition of ‘an associated operation or work’.

Conclusion

It does seem correct that the insurance under this Act is very limited. It is limited to fire fighting operations or training for fire fighting.  Any extended definition relies on the goodwill of the Self Insurance Corporation, which in turn is interested in, and required to protect, its insurance pool.

The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) is out-of-date. It was written 2 years before the State Emergency Service Act and the State Emergency and Rescue Management Act and 10 years before the Rural Fires Act. One infers it began life as a compensation scheme for members of the NSW Bush Fire Brigades and has had bits, such as provision for emergency and then rescue workers and then extensions for surf lifesaving and Marine Rescue NSW ‘tacked on’ rather than taking an ‘all hazards, all agencies’ approach consistent with the modern response to emergencies. 

The NSW Workers Compensation Scheme is ridiculously and unnecessarily complex – see RFS Operational officer deemed firefighter v2 (September 25, 2023). Amendments to NSW law starting with the Civil Liability Act 2002 and reforms to workers compensation in 2015 have all been intended to make compensation harder to get and less generous.  The fact that there is a two-tier system – one for police, paramedics and firefighters – and one for everyone else has made the system even more complex and means law reforms that have been intended to benefit everyone may skip the ‘exempt’ emergency workers – see Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022). The entire workers compensation scheme needs an overhaul to try to make it sensible or at least understandable.

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.