A member of the NSW Rural Fire Service has recently ‘participated in a number of discussions regarding the practicability and legal implications of the Farm Fire Unit (FFU) Policy’.  They say:

 I hold some concern surrounding the inclusion of FFUs in firefighting operations and how this interacts with duties and potential liabilities under the Work Health and Safety Act 2011 (NSW).

Operational Context and Practical Concerns

In most cases, the on-ground Incident Controller (IC) is a senior volunteer. The RFS advises that attending brigade officers should, where possible, record the presence of FFUs on the fire ground and brief FFU operators on operational and safety issues so they can make informed decisions about their actions.

However, the practical management of a sectorised fireground is already complex, even when limited to trained RFS personnel familiar with established procedures and protocols. Introducing independent FFU operators, who may not be fully trained, equipped, or briefed, adds uncertainty around command, control, and communication responsibilities.

The FFU Operational Guide acknowledges that safety is “everyone’s responsibility” and that FFU operators must “work within the established chain of command and not work on the fireground alone” (p. 3). It also highlights that RFS officers should, where possible, ensure FFU operators are informed of operational and safety issues. Yet, given that ICs are often volunteers, this expectation raises a practical concern about their capacity to brief, monitor, and manage independent FFU participants who remain outside the RFS command structure.

Legal and WHS Considerations

While the Farm Fire Unit Operational Guide provides comprehensive safety guidance, including the IMSAFER and LACES checklists and requirements for PPE compliant with AS/NZS 4824:2006, there appears to be limited acknowledgment of how WHS duties apply to Persons Conducting a Business or Undertaking (PCBUs) outside the RFS structure.

For example, the guide explicitly states that FFU operators “need to take responsibility for their own safety and the safety of any persons for whom they have responsibility under the WHS legislation” (p. 4). It also recognises that FFU operators “are responsible for the safety of their own workers in accordance with WHS laws” (p. 11).

However, it is unclear how these duties intersect with those of RFS officers under s. 46 of the WHS Act 2011, Duty to consult, cooperate and coordinate activities with other duty holders, particularly where an FFU operates under the authority or coordination of the RFS.

Farmers (a PCBU) may employ permanent employees, seasonal employees or sub-contractors who may end up assisting with firefighting under the FFU program. If those individuals, lack appropriate PPE, training, and firefighting experience, one would have to reasonably conclude that if an employee is injured or killed, that the employer/farmer shares some liability, as a PCBU.

Key Extracts from the FFU Operational Guide

The FFU Operational Guide promotes mutual respect and cooperation between FFU operators and the RFS, noting that everyone on the fireground shares responsibility for safety. Some key provisions include:

FFU operators “accept responsibility for their actions” when engaging in firefighting and must operate within the Incident Controller’s plan (p. 6).

RFS officers are expected to brief FFU operators on operational and safety issues (p. 6).

FFU operators are responsible for the safety of their own workers in accordance with WHS laws (p. 6).

Under the subject of Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 is that the legislation that extends parts of the workers compensation scheme to people who suffer a personal injury and/or damage to personal property (including private motor vehicles) in the course of voluntarily fighting a bush fire, the key word being voluntarily, and

RFS officers should, where possible, “focus on tasking lower risk activities to FFU operators” because FFUs are unlikely to have burn-over protection (p. 10).

These provisions appear to blur the line between volunteer participation and employment-related activity, particularly where FFUs are farm-owned assets used by employees or contractors during firefighting operations. They also raise questions as to whether RFS “consent or supervision” might trigger shared duties under the WHS Act for incidents involving multiple PCBUs.

Legal Clarification

I would genuinely appreciate your interpretation or thoughts on the following points:

The extent of liability and ‘duty of care’ obligations under the Work Health and Safety Act 2011 for RFS officers (including volunteer Incident Controllers) in circumstances where FFU operators are present and acting semi-independently.

The WHS and legal implications for farmers (as PCBUs) whose employees or contractors participate in FFU operations under RFS coordination.

Whether the current RFS FFU policy sufficiently distinguishes between volunteer and employment-related firefighting activity, particularly in relation to insurance, liability, and duty of care; and

Whether the principle of “shared responsibility” articulated in the guide aligns with, or potentially conflicts with, statutory duties and vicarious liability principles under the WHS and Rural Fires Act 1997 frameworks.

Farm fire units

The Farm Fire Unit Operational Guide (RFS, undated) is available here. There is also significant commentary on the Farm Fire Units, for example:

The Rural Fires Act

The RF Act is unlikely to lead to a justiciable ‘duty of care’ that is someone could not sue the Rural Fire Service because they were not protected from dangers to their health and safety by a fire.  Even if it could be argued that s 9 of the RF Act gave rise to a common law duty of care, it would only be a duty to take reasonable care taking into account all aspects of the RFS operations, the resources available, the vulnerability of anyone who claimed to have not been protected etc (and see Civil Liability Act 2002 (NSW) ss 40-46 for legislated barriers to suing statutory authorities and RF Act s 128 for statutory immunity for the RFS). We will therefore put aside any further discussion of whether the RF Act creates a duty of care to workers on a farm fire unit. 

The Work Health and Safety Act

The PCBU

If we assume that the farm is a workplace and that those operating the farm fire units are workers then the operator of the farm – whether that’s an individual, a company, a family trust, a partnership or any other business relationship – will the person conducting a business or undertaking, ie the PCBU. The undertaking in that context is the farm operation which would include the fire response.  That PCBU will have the primary duty to ensure the health and safety of the farm’s workers (Work Health and Safety Act 2011 (NSW) (‘WHS Act’) s 19(1)).

The Rural Fire Service is also a PCBU, its undertaking is ‘to provide rural fire services’ (Rural Fires Act 1997(NSW) (‘RF Act’) s 9(1)(a)). Part of providing a rural fire service is protecting ‘persons from dangers to their safety and health … arising from fires in rural fire districts’ (s 9(4) definition of ‘rural fire services’).  The RFS has the primary duty of ensuring, so far as is reasonably practicable, the health and safety of members of the rural fire service (WHS Act s 19(1)(a)). It also has a duty to ensure, so far as is reasonably practicable the health and safety of ‘workers whose activities in carrying out work are influenced or directed by the’ RFS (s 19(1)(b)) as well as a duty to ensure that any other person is ‘not put at risk from work carried out as part of the conduct of the business or undertaking’ (s 19(2)).  Presumably members of a Farm Fire Unit are workers whose work on a fire ground is ‘influenced’ and in some cases ‘directed’ by the RFS.

Duties under the WHS Act

May be held by more than one duty holder

The WHS Act recognises that there can be more than one duty holder (s 16(1)).  Both the RFS and the operator of the farm can owe work health and safety duties to the members of a Farm Fire Unit.  Each duty holder ‘must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter …’ (s 16(3)(b)).

Are not duties to guarantee safety

The duties in the WHS Act are not an obligation to guarantee safety.  The WHS Act requires a duty holder to protect relevant people only so far as is ‘reasonably practicable’.   Section 18 tells us that the term ‘reasonably practicable’: 

… in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including–

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about–

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

It would be possible to minimise the risk to fire fighters, whether RFS members or members of a Farm Fire Unit by ensuring that no-one responds to a fire, but that is not reasonably practicable. 

What follows is that just because a worker is killed or injured in the course of their work, it does not mean that the PCBU must have been in breach of its workplace health and safety duties.  The WHS Act is enforced by criminal penalties and as with any criminal prosecution the Crown must prove, beyond reasonable doubt, that there were ‘reasonably practicable’ steps that the PCBU could and should have taken to reduce the risk that actually arose. It is incumbent on the prosecution to identify those steps rather than assert that the injury or death proves that insufficient steps were taken (Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1). 

Volunteers are not officers

There are duties on an officer of a PCBU but a volunteer Incident controller is not an officer as defined in s 4. An ‘officer’, for the purposes of the WHS Act, is not someone with rank on their shoulder. An officer is a person who makes ‘decisions that affect the whole, or a substantial part, of the business or undertaking’ that is the Commissioner and senior executive, but not brigade members including captains or group captains who are acting as an incident controller.  Further, the duty of officers to exercise due diligence is set out in s 27 of the WHS Act, but volunteers can only be liable for failing to perform their duties under s 28 ‘Duties of workers’ and s 29 ‘Duties of other persons at the workplace’ (see s 34 ‘Exceptions’). Even if a volunteer was an officer, volunteers are exempt the operation of s 27 and so cannot be prosecuted for failing to exercise an officer’s duties.

Duty to consult

A PCBU has a duty to ‘so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter’ (s 46).  A PCBU must also consult with ‘workers who carry out work for the business or undertaking’ (s 47).  The consultation is required when identifying risks and measures to manage risk but not at every time any decision is made.  For example there is a need to consult when developing a relevant policy such as the Farm Fire Unit policy but not every time that policy is acted upon. 

The issues raised

With that background we can look at the issues raised.  First the RFS recognises some duty to Farm Fire Units.  It could try and take the line that no-one is allowed to fight fires other than RFS volunteers, but it knows that such a prohibition is beyond its reach and would be counter-productive.  It is beyond its reach as the RFS simply cannot stop farmers choosing to fight fires on their, or their neighbours land.  It would be counter-productive as it is a truism that first responders are always local so farmers with Farm Fire Units are an effective first response and an effective adjunct to RFS resources.  To try and stop them fighting fires because of some concern for their safety simply increases the risk to safety somewhere else.

Consistent with the WHS Act then, the RFS has developed a policy reflected in the Farm Fire Unit Operational Guide to incorporate and work with farmers who have Farm Fire Units.  The Guide gives health and safety advice and expectations to help reduce risk.  It is an OHS measure.  I do not know what sort of consultation has taken place but the commentary cited above says that the RFS has been working with farmers and farm groups to develop the guide. It does not have to consult with every person in every farm unit and incident controllers do not have to consult with every farm unit when putting the policy into effect. 

Workers on the Farm Fire Unit are not ‘workers’ for the RFS but they are influenced or impacted by the decisions of the RFS so the IC has to have regard to them when making decisions. But any duty owed is limited by the amount of control that can be exercised.  The RFS is responsible for the IC’s decisions, the farm PCBU is responsible for the decisions of the crew on the Farm Fire Unit (s 16(3)(b)).

If I turn to the specific questions:

The extent of liability and ‘duty of care’ obligations under the Work Health and Safety Act 2011 for RFS officers (including volunteer Incident Controllers) in circumstances where FFU operators are present and acting semi-independently.

The obligation on the officers (as in team leaders, incident controllers etc; not ‘officers’ as defined in s 4) is to implement the work health and safety policies of the PCBU (WHS Act s 28) that means act in accordance with their training and the Farm Fire Unit Operational Guide.

The WHS and legal implications for farmers (as PCBUs) whose employees or contractors participate in FFU operations under RFS coordination.

The farmer who puts staff on a Farm Fire Unit has an obligation to address the risks they are likely to face so that would include an obligation to ensure that they are competent in those tasks, have appropriate PPE etc.  A farmer who sends the Scandinavian work experience kid out on a fire truck with no kit and no training is likely to be liable if that inexperienced young person is killed or injured.

Whether the current RFS FFU policy sufficiently distinguishes between volunteer and employment-related firefighting activity, particularly in relation to insurance, liability, and duty of care; and

To be honest I don’t understand the question.  An employee of a farm who is on a Farm Fire Unit and is injured would need to get advice on how to apply for compensation and whether he or she is covered by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW), the Workers Compensation Act 1987 (NSW) and/or the Workplace Injury Management and Workers Compensation Act 1998 (NSW) remembering that the NSW Workers compensation scheme is far too complicated to make sense of without very expert advice.

Whether the principle of “shared responsibility” articulated in the guide aligns with, or potentially conflicts with, statutory duties and vicarious liability principles under the WHS and Rural Fires Act 1997 frameworks.

The operational guide says (at p. 7):

The central theme of this guide is one of mutual respect and cooperation between FFU operators and the RFS – everyone at the fire has a shared responsibility for the safety of each other. Just like RFS members, FFU operators accept responsibility for their actions when they engage in firefighting. This means working with the RFS and other firefighting agencies, rather than acting in isolation.

It seems to me that this aligns with the WHS Act.  Everyone’s responsible for their own actions and decisions and only responsible for the matters that they can exercise control over.  

A word on volunteers 

Volunteers worried about the WHS Act should remember that their duties are limited. Section 34(1) says:

A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.

Section 28, to the extent it applies to a volunteer says 

While at work, a [volunteer] … must–

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to worker.

Section 29 says (relevantly):

A [volunteer] … at a workplace (whether or not the person has another duty under this Part) must–

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

A volunteer Incident controller who is applying his or her training and following the procedures and policies of the RFS including the Farm Fire Unit Operational Guide is meeting those obligations.

Conclusion

I don’t really see any significant legal issue for volunteer incident controllers. The RFS has undertaken the work of developing policy to incorporate Farm Fire Units into the RFS and explaining how they expect the Farm Fire Units and the RFS to work together.  It is the volunteer IC’s duty to give effect to that policy.  

A volunteer, a worker or a PCBU is not required to guarantee everyone’s safety at all times. They are expected to do what is ‘reasonably practicable’ within their span of control. The IC does not really control everyone on the fireground nor are they expected to.  The farm that provides a Farm Fire Unit has the obligation to ensure that the staff are trained and equipped.  

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.