Today’s correspondent from NSW says:

In the country areas, quite often volunteer firefighters respond to an incident wearing only part of their PPE, usually a jacket and helmet, having just rushed from a farming operation to get on the truck. Recently, a colleague dressed in part PPE fell over on the fireground and was not wearing his gloves and subsequently severely burnt both hands / arms .

The District Office says that the volunteer is fully covered under WHS (workplace health and safety laws)

1. What is the legal consideration if they get hurt or burnt when not wearing full PPE? 

2. Are they considered an employee at the time of the accident?

3. Are they legally covered by WHS?

I am not sure that my correspondent intends to ask about WHS or workers compensation as they are not the same thing.  The Work Health and Safety Act 2011 (NSW) deals with obligations to ensure safety at work. The Workers Compensation Act 1987 (NSW) and the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987(NSW) deal with the payment of compensation to injured workers.

Work Health and Safety

If we consider the Work Health and Safety Act (2011) (NSW) (the WHS Act), a volunteer firefighter is not considered ‘an employee’ – an employee is a person in a particular relationship with an employer.  The WHS Act uses the term ‘worker’ as it covers much more than employees. A volunteer firefighter is a ‘worker’ (Work Health and Safety Act 2022 (NSW) s 7). 

Are they legally ‘covered’?  They are bound by the WHS Act. That Act says that they are duty bound to:

(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 workers.

Further the Work Health and Safety Regulation 2025 (NSW) r 46 says that a:

… worker must, so far as the worker is reasonably able, use or wear the [personal protective] equipment in accordance with the information, training or reasonable instruction given by the person conducting the business or undertaking.

Turning out in only part PPE and without gloves may be in breach of their obligations under the Act and regulation. That could see them liable to criminal prosecution (ss 33 and 34).  The maximum penalty for failing to comply with a duty imposed by the Act is a fine of 607 penalty units (s 33) or 607 x $110 (Crimes (Sentencing Procedure) Act 1999(NSW) s 17) = $66,770.  That doesn’t mean anyone will be prosecuted.  The question of what is reasonable has to take into account (WHS Act s 18):

(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.

The risk is well known and the issue of PPE is intended to minimise the risk. The only issue would then be whether stopping to get all the PPE would impose a ‘grossly disproportionate’ cost by delaying the response.  That is a poor argument however as everyone should know that protecting responders is the priority so stopping to get one’s PPE – and delaying the response – will always be the best option.

The issue will move up a step to what is the culture? If people do this all the time and it’s accepted – even by implication – then the breach of duty might lie higher up the scale – why is the brigade captain or the District Officer not stepping in and telling people who are not in proper PPE to go home and get their PPE or issuing more kit on the scene. If they have created a culture of tolerance, then the focus of Work Safe may be on them rather than the volunteer. 

So to answer the question asked, with respect to WHS, the answers are:

  1. What is the legal consideration if they get hurt or burnt when not wearing full PPE? 

The legal consideration is whether they were using or wearing issued personal protective equipment ‘in accordance with the information, training or reasonable instruction given’ by their organisation. And if they were not whether it was or was not ‘reasonable’ to comply with that ‘information, training or reasonable instruction’.

  • Are they considered an employee at the time of the accident?

No, they are a worker.  The concept of ‘worker’ includes a greater range of people, including volunteers, that are not captured by the concept of employee. 

  • Are they legally covered by WHS?

Yes, they are obligated to meet their WHS duties (WHS Act ss 28 and 34). 

Workers Compensation

I suspect that my correspondent didn’t really mean to ask about the WHS Act, I think they were really interested in workers compensation.  Workers’ compensation is a no-fault scheme.  The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 7 says that the Act applies to ‘… personal injury received by a fire fighter– (a) arising out of or in the course of fighting a bush fire’.  That would include the firefighter in the circumstances described, above.

Section 10 says:

A fire fighter who has received an injury (and in the case of the death of the fire fighter, the fire fighter’s dependants) shall be entitled to receive compensation as follows–

(a) where death results from the injury–the compensation payments prescribed by the Principal Act, sections 25(1)(a) and (b) and (1A), 26 and 28,

(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,

(c) where medical or related treatment, hospital treatment, occupational rehabilitation service or ambulance service becomes necessary as a result of the injury–the benefits prescribed by Division 3 of Part 3 of the Principal Act,

(d) where the worker receives an injury mentioned in Division 4 of Part 3 of the Principal Act–the compensation prescribed by that Division (including compensation for any pain and suffering resulting from that injury).

The Principal Act is the Workers Compensation Act 1987 (NSW) (see s 3).  A volunteer firefighter is not a worker but is entitled compensation as if they are a worker. I stop here to note that the actual compensation scheme is unbelievably complex as they keep making changes whilst attempting to exempt police officers, firefighters and paramedics from some of those changes; which sometimes works in their favour, and sometimes does not – see RFS Operational officer deemed firefighter v2 (September 25, 2023).

So to answer the question asked, with respect to workers compensation, the answers are:

  1. What is the legal consideration if they get hurt or burnt when not wearing full PPE? 

Did their injuries arise ‘out of or in the course of fighting a bush fire’.  

  • Are they considered an employee at the time of the accident?

No, they are not an employee, but they are entitled to workers compensation as if they were an employee (subject to the multiple twists and turns in the workers compensation scheme). 

  • Are they legally covered by WHS?

If the question means ‘are they legally covered by workers compensation law?’, the answer is ‘yes, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) provides a no fault compensation scheme’. 

Common law

Workers’ compensation is no-fault scheme, so no-one has to prove who was at fault.  Common law rights are reserved (Workers Compensation Act 1987 (NSW) s 151).  If the firefighter described in the question wanted to sue for common law damages, alleging negligence by the RFS, then his or her failure to wear proper PPE would be relevant as it would raise questions of contributory negligence. If they chose to rely solely on compensation paid under the Workers Compensation Act their failure to wear their gloves is irrelevant. 

Conclusion

The firefighter could get compensation and get prosecuted for a breach of the WHS Act.  The outcomes under one legislative scheme does not exclude the other. 

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.