Today’s question comes from 

… a volunteer member of the NSW RFS [who is] …  currently trying to put together an (Enterprise) Agreement for members of the NSW RFS. 

As you know employees or workers for businesses have Awards, Enterprise Agreements or Individual Contracts to cover their terms and conditions of employment. The paid staff of the NSW RFS are covered by the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009.

I would like to know if a volunteer member of the NSW RFS can lodge a claim for a Members Agreement with the NSW RFS through Fair Work. My hope in having an Agreement would be to place requirements on the NSW RFS in a similar way that an Award or Contract would place requirements any business.

Here is an example of what I am on about, meals are not always supplied at fire, even though sometimes a NSW RFS fire fighter may be at a fire for 5 or 6 hours, and if for example the fire fighter was called out at 11:30, this would mean that the fire fighter may not have eaten for 9 to 10 hours.  The Service Standard 3.1.11 Catering in the NSW RFS covers catering on the fire ground but does not allow for the time between meals. 

The NSW RFS SOPs, Guidelines and Service Standards are written to provide protection to the NSW RFS as a defence in the event of prosecution; they are not terms or conditions of work. These SOPs, Guidelines and Service Standards can be changed at any time without consultation with NSW RFS members.

My hope in having an Agreement would be to place requirements on the NSW RFS in a similar way that an Award or Contract would place requirements any business.

The short answer is ‘no, a volunteer member of the NSW RFS cannot lodge a claim for a Members Agreement with the NSW RFS through Fair Work’.

Fair Work Australia

 The Fair Work Act 2009 (Cth) is an Act ‘about workplace relations’. It, inter alia (s 4(1)):

(a) provides for terms and conditions of employment (Chapter 2); and

(b) sets out rights and responsibilities of employees, employers and organisations in relation to that employment (Chapter 3)

Volunteers are not employees so the Fair Work Act can have no application.  Even if it did, the Fair Work Act does not deal with the employment arrangements between State governments and state government agencies and their employees – see 

The NSW Industrial Relations Commission

The relevant referee for state industrial matters is the Industrial Relations Commission but again it can only intervene in employment relations ie not volunteers – see Industrial Relations Act 1996 (NSW) ss 4 and 5; see also:

The statement ‘The NSW RFS SOPs, Guidelines and Service Standards are written to provide protection to the NSW RFS as a defence in the event of prosecution; they are not terms or conditions of work’ is in my respectful submission wrong. The SOPs etc are the Commissioner’s directions on how the service is to work and both the service and the volunteers are expected to comply with them. Failure to comply can lead to disciplinary action and ultimately dismissal from the service – see Service Standard 1.1.34 Workplace Complaints Resolution (V 1.0, 15 July 2024).

Work Health and Safety

Although RFS volunteers are not employees, they are ‘workers’ for the purposes of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’). That Act uses the term ‘worker’ (rather than employee) because it covers a wider range of people, including volunteers. Under that Act a Person Conducting a Business or Undertaking (a PCBU) has to ensure so far as is reasonably practicable the health and safety of its workers including its volunteers (WHS Act s 19; see als so 70 ‘General obligations of person conducting business or undertaking’). A PCBU must consult with its workers, including volunteers (s 47). Consultation is required (s 49)

(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,

(b) when making decisions about ways to eliminate or minimise those risks,

(c) when making decisions about the adequacy of facilities for the welfare of workers,

(d) when proposing changes that may affect the health or safety of workers,

(e) when making decisions about the procedures for–

(i) consulting with workers, or

(ii) resolving work health or safety issues at the workplace, or

(iii) monitoring the health of workers, or

(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or

(v) providing information and training for workers, or

(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.

It follows that it is not a simple case that the RFS can change SOP’s without consultation with it’ volunteers where any change would have WHS implications.  There are many ways to arrange consultation, and consultation does not require getting input from every worker. The RFS has established consultation processes – see Service Standard 7.1.8 Work Health and Safety Consultation and Issue Resolution (V 1.1, 7 January 2019). If those procedures are inadequate or are not honoured the regulator, SafeWork NSW can become involved.  For related posts see 

With respect to the example of meals see Feeding firefighters (January 18, 2020).  That post refers to the Work Health and Safety Regulation 2017 (NSW) r 41(1) but see now Work Health and Safety Regulation 2025 (NSW) r 41(1) in the same terms). 

Even though RFS volunteers cannot ‘lodge a claim for a Members Agreement with the NSW RFS through Fair Work’ there are examples of volunteer charters intended to enshrine a commitment to volunteers – see for example Country Fire Authority Act 1958(Vic) s 6G). 

Conclusion

Volunteer members of the NSW RFS cannot lodge a claim for a Members Agreement with the NSW RFS through Fair Work Australia.

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.