M. Eburn

Metropolitan Fire Brigades and General Order 3, ‘Prohibition on Operational Staff’

In Fire on July 21, 2014 at 11:09 am

I was contacted via LinkedIN and asked to comment on this order.  My correspondent wrote:

I read your articles with interest and thought you may be interested in dissecting the legality of general order 3 which the Metropolitan fire brigade has introduced for its operational firefighters.

I asked for, and received a copy of the order along with these further questions:

Operational staff are reminded of general order 3 compliance whilst off duty by the chief officer.

Is general order 3 lawful in relation to ones activity and rights under discrimination laws, bullying and harassment in the workplace laws and human rights charter?

and

Does this general order breach other rights of firefighters?

And

Is it lawful to gag firefighters whilst off duty?

This includes political beliefs, association or activity whilst off duty. Given the public standing of firefighters in the community, members are often recognised and associated as such, firefighters, whether on duty or not.

I appreciate the want to protect the board, brand and standing in the community, but question whether the revised general order 3 has pushed the boundaries too far.

An internet search reveals that the United Firefighter’s Union ‘is seeking legal advice on this matter and after such … will notify members’ <http://www.ufuvic.asn.au/wp-content/uploads/2014/03/UFU-Bulletin-057-MFBs-new-general-order-no.-3.pdf>.

These questions deal with labour or employment law and human rights law.  Victoria is in the rare position of having statutory guaranteed human rights in the Charter of Human Rights and Responsibilities Act 2006 (Vic).  (The position is rare as the ACT is, as I understand it, the only other Australian jurisdiction with human rights legislation, see Human Rights Act 2004 (ACT)).    Victoria also prohibits discrimination on the grounds of various attributes which include ‘employment activity’, ‘industrial activity’, ‘political belief or activity’ and ‘personal association … with a person who is identified by reference to any of the above attributes’ (Equal Opportunity Act 2010 (Vic) ss 6 and 7).

The provision of the order that is causing concern is, I infer, paragraph 3.2(i) which says:

‘… an operational staff member must not:

(i)                  represent him or herself to any person, persons, or organisation in a manner contrary to the authorised position of the MFB.  This prohibition includes where an individual is reasonably identified as a firefighter, despite the covering or removal of any MFB rank or insignia, or by otherwise disguising any uniform, appliance, equipment or facility (this includes uniform, appliances, equipment or facilities that are no longer in service or operation of have been superseded);’

My first thought is that applying the rule of ‘ejusdem generis’ (that is where there is a general list of examples, the general application of the rule will be limited to similar examples (http://legal-dictionary.thefreedictionary.com/Ejusdem+generis), then the sort of conduct that the rule is aimed at is a firefighter who is clearly acting as a firefighter but makes some poor attempt to disguise that fact, eg a firefighter who wants to say that the reason the fire is out of control is because of some MFB policy but before making that statement they remove their ‘turn out’ coat and put on a jacket.  We’ve all seen officers from various services in their uniform with a non-uniform coat or jacket and it’s still pretty obvious that they are wearing a uniform.  If that’s correct it would be hard to apply that to a member who’s off duty and not wearing any uniform items.  That is I would infer that the order can only apply when the person is representing him or herself as a firefighter or ‘is reasonably identified as a firefighter’ not when their position as a firefighter is irrelevant to the issue at hand.

It seems to me that the document, standing alone, cannot be contrary to the provisions of either the Charter of Human Rights and Responsibilities or the Equal Opportunity Act. Questions of whether the policy enshrined in the order is contrary to those rights and laws can only arise when there is an attempt to apply the Order.  The MFB will need to take account of the fact, for example, that it is unlawful to deny or limit access to opportunities for promotion, transfer or training, to dismiss an employee, to deny access to any guidance program or occupational training or retraining or to subject an employee to any other detriment because of that employees political views or their involvement with the union (including representing or advancing the views, claims or interests of members’ of that union) (Equal Opportunity Act 2010 (Vic) ss 4, 6, 7 and 18).  Further, in Victoria, people have a rights to freedom of thought, conscience, belief, expression, association (including a right to join a trade union) and to participate in the public life of Victoria (Charter of Human Rights and Responsibilities Act 2006 (Vic) (ss 14-16, 18)).  One can imagine that Order 3 could be used in ways that contravene those rights, but it’s not axiomatic that it must or will be.

Further rights are not absolute, so the rights to freedom from forced work (s 11), freedom of movement (s 12) and freedom of association (s 16) would not be sufficient to stop an employer dismissing an employee who decided to ‘hang out’ with his or friends rather than go to work.     How the various rights and obligations of an employee may be lawfully balanced is a matter for lawyers expert in the fields of labour/employment law and human rights law and would depend on the particular facts.

So, in short I can’t answer whether or not this order breaches any rights, either in the abstract or if and when it is applied.  The UFU are seeking legal advice and presumably they will obtain that from lawyers with a practice in industrial law rather than emergency response law.   It will be very interesting to see what that advice is, if and when the UFU make it public.

Probationary Licence Holders and driving emergency vehicles in Victoria

In Criminal law, Driving and Road Rules, SES on July 18, 2014 at 7:52 pm

A interesting issue from Victoria relating to the SES but will have application for all emergency services.

I wonder if you could help with a question I have as I have a daughter who has recently joined the SES.

The Victorian State Emergency Service does not allow ‘p’ platers to drive vehicles under emergency status, i.e. under lights and sirens.

My question is, does a probationary driver , driving a State Emergency Vehicle have to display ‘p’ plates,

Our regional manager has stated that a p’ plater does not have to display p plates when driving an emergency vehicle under normal conditions.

They state that a police officer threatened to fine a driver for displaying his ‘p’ plates on an emergency vehicle.

I have asked a Highway Patrol Officer and he tells me that probationary drivers must always display ‘p’ plates regardless of the vehicle they are driving.

What’s interesting is the conflicting advice.  One might expect the police to be right but it appears that is not the case.  The relevant rules are not the Road Safety Road Rules 2009 (Vic) as those rules do not deal with licensing, in Victoria the relevant rules are the Road Safety (Drivers) Regulations 2009 (Vic) but the answer is in fact clear and set out in regulation 55.

Regulation 55(1) says “A person who holds a probationary driver licence … must not drive a motor vehicle … on a highway unless…” they are displaying a “P” plate to the front and rear of the vehicle (except that a motorcycle only needs a rear facing “P” plate).  The regulation goes on to say:

(3) Subregulation (1) does not apply to a person who is—

(a) a member of the police force who, in the course of duty, is driving a motor vehicle; or

(b) a member of the Country Fire Authority who is driving a motor vehicle in the course of fire fighting operations; or

(c) driving an ambulance service or a Victoria State Emergency Service vehicle in the course of duty.

So the answer is clear, a person driving an SES vehicle as part of their duties does not need to display a “P” plate.  The advice from the SES regional manager is correct; the advice from the Highway Patrol Officer is wrong.

Can you be fined for displaying a “P” plate?  That is not so clear; regulation 55(2) says “A person who does not hold a probationary driver licence …  must not drive a motor vehicle on a highway if there is displayed facing out from the front or rear of the vehicle a plate that is, or that resembles, a P plate”.  The maximum penalty is 3 penalty units.  (A penalty unit is $147.61 (http://www.ocpc.vic.gov.au/CA2572B3001B894B/pages/faqs-penalty-and-fee-units) so the maximum penalty is a fine of $442.83).

BUT the regulation does not say that it is an offence to display a “P” plate when not required to do so by subsection (1); rather it says it is an offence to display a “P” plate if the driver does not hold a probationary licence.  If the driver does hold a probationary licence, and they are driving an SES vehicle or ambulance, or they are a member of the CFA driving a vehicle in the course of firefighting, then they are not required to display a “P” plate but the regulations do not say they commit an offence if they do.  So ‘the police officer [who] threatened to fine a driver for displaying his ‘p’ plates on an emergency vehicle’ was also wrong.

There is another restriction on P1 drivers, that is a P1 driver must not drive a vehicle with more than one ‘peer passenger’ (Regulation 61(1)).  A ‘peer passenger’ is a person aged more than 16 and less than 22 (Regulation 61(4)).  One can imagine that an SES vehicle may have more than one person who meets that criteria.  Again, however the rule does not apply to a member of the police force or a person driving an emergency vehicle in the course of his or her duties (Regulation 61(2)).  That is a different test; regulation 55(3) referred to a person driving an ambulance or SES vehicle in the course of their duties whereas regulation 61(2) refers to an ‘emergency vehicle’.  The definition of ‘emergency vehicle’ is the same as the definition in the Road Safety Road Rules 2009 (Vic) (see Road Safety (Drivers) Regulations 2009 (Vic) reg 61(4) and Road Safety Road Rules 2009 (Vic) rule 4 and Dictionary).   An ‘emergency vehicle’ includes any vehicle that is under the control of the SES (or other emergency services).   Accordingly this exception also applies to the driver of a Victoria SES vehicle.  (That’s quite different to the definition in say New South Wales that defines an emergency vehicle as a vehicle being operated by an emergency worker when responding to an emergency.  If that definition applied in Victoria then a P plate driver could not have more than one young passenger on routine tasks but could in an emergency).

In summary, in Victoria, the holder of a provisional drivers licence does not need to display “P” plates and may carry more than one ‘peer passenger’ when driving an SES vehicle in the course of their SES duties.

Charging private health services for ambulance services provided to pensioners

In Ambulance on July 15, 2014 at 8:06 pm

A Director of a Victorian medical centre wrote:

Ambulance Victoria  ( AV ) advised private registered Day Procedure Centres and Private Hospitals in Victoria by letter on about 26 June 2014 that from 1st July 2014 there would be significant changes in billing guidelines for AV patient transport services in Vic. Specifically, such PRIVATE HEALTH CARE facilities would

“ …. become responsible for the costs associated with all emergency and non-emergency transports from a private healthcare facility for a Community Service Obligation patient. …..  “

CSO patients are, briefly, pensioners who have always been said in all relevant discussions and literature to have an entitlement to “free” ambulance transportation when clinically justifiable, under government funded CSO arrangements.

How can it be Legal for a Victorian Department of Health Minister suddenly to make private entities become responsible for the costs of such government funded CSO services to patients, with no negotiation or contract?

Is this a question within your area of interest? It certainly is in the interest of many pensioner patients in Victoria, who have had a portion of their “entitlements” reduced without notification.

The power of the Ambulance Service to charge fees is set out in the Ambulance Services Act 1986 (Vic) ss 10 and 16.  Pursuant to s 16

… An ambulance service may—

(a) charge reasonable fees for services rendered;

(b) operate or participate in a subscriber scheme;

(c) provide services to members of, or contributors to, a health fund under an agreement with a health fund;

The Secretary of the Department of Health “… may by instrument, give directions to an ambulance service relating to— (a) the fees that the service may charge …” (s 10(5)).  An ambulance service must comply with the Secretary’s direction (s 10(6)).

The Secretary has issued such a direction – see Patient transport charging guidelines for Victoria.  The current guidelines took effect on 1 July 2014.  The guidelines on Table 3 say that for ‘Private patients in private healthcare facilities’ the sending private healthcare facility is responsible for ambulance charges.

The Government of Victoria (and all the state governments) appear to have imposed community service obligations upon the state ambulance services to provide free transport for pensioners and others, but I can’t see where there is any legal obligation to do so.  There does not appear to be a COAG agreement requiring states to provide ambulance as a community service obligation (as there is for Pharmacy Wholesalers), there is no mention of ambulance services for pensioners and others in the National Healthcare Agreement 2012 nor do these community service obligations get a mention in either the Health Insurance Act 1973 (Cth) or the National Health Act 1953 (Cth) or their regulations.

Even so:

There has been a long tradition in Australia on governments imposing special requirements on Government Trading Enterprises (GTEs) which extend beyond the commercial operations of the business.  Governments have often required GTEs to … provide concessions to particular users… These requirements are usually termed ‘community service obligations (CSOs).’

(Steering Committee on National Performance Monitoring of Government Trading Enterprises, Community Service Obligations: Some Definitional, costing and funding issues (Canberra, 1994), p iii; see also Industry Commission, Community Service Obligations: Policies and Practices of Australian Governments (Canberra, 1977)).

The Commonwealth does not claim to impose an obligation on the states to provide ambulance services.  The Department of Human Services says:

In addition to Medicare services, concession cards can give you, your partner and dependants other concessions from state and local government authorities and private businesses.

Contact the state government health agency in your state for information on concessions available in your state or territory.

If we look to the Victorian Department of Human Services, they say ‘Concession cardholders are eligible for free ambulance and air ambulance travel anywhere in Australia in an emergency or on the recommendation of a doctor’ (http://www.dhs.vic.gov.au/for-individuals/financial-support/concessions/health/ambulance-travel).  All that persuades me that whatever level of agreement there is between the states there is no binding legal obligation to provide free ambulance service.

So where does that leave us?  The Secretary can set ambulance fees which ambulance services must comply with. That has been done and the Secretary has determined that the sending health service, on the basis presumably that it is that service that is arranging the ambulance and requesting the service, is liable to pay the fees.   How is that legal?  It’s because s 10 of the Ambulance Services Act 1986 (Vic) says that the determination can be made and I can’t find any other law that would say this obligation is improper or illegal.

It is however, problematic to make a third party liable, if I call an ambulance for someone I’m not liable to pay the fee just because I rang the ambulance, so why is the private facility?  This could turn on many things all based in contract law – what’s the contract between the provider and the patient? What services does the provider agree to pay for? What’s the relevant law regulating the private health provider? Who is requesting the service?  These are all issues beyond ‘emergency law’ and any provider who wanted to question them would need to obtain independent legal advice.

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