Read the story from ABC news here.

Because this matter was resolved with a plea of guilty, there are no ‘reasons for judgment’ so we cannot see what the SES were alleged to have done, or not done, that exposed this volunteer to the risk and eventual fatal outcome, nor do we know what WorkSafe alleged the SES could have done to reduce or remove that risk.

The application of the Victorian Occupational Health and Safety Act 2004 (Vic) to the SES and its volunteers is reasonably clear. That is not true in other jurisdictions such as New South Wales.

The Victorian Act imposes obligations upon employers to provide a safe working environment for their employees (s 21). An employee is “… a person employed under a contract of employment or contract of training” (s 5(1)). Volunteers are not the employees of VicSES.

An employer is “… a person who employs one or more other persons under contracts of employment or contracts of training” (s 5(1)). VicSES is an employer as it does employ people, albeit not its volunteers. As an employer VicSES has obligations to people who are not employees and that would include its volunteers. An employer is required to:

… ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer. (s 23).

The question becomes what is the ‘undertaking’ of the employer? In this case undertaking training as a member of the SES in order to perform the various tasks of the SES must be considered an undertaking of the employer, that is VicSES.

As this volunteer was killed in the exercise of SES training he was exposed to a risk as part of the work or undertaking of the SES. The SES entered a plea of guilty to the charge so they conceded that it would have been ‘reasonably practicable’ to mitigate or remove the risk.

The reference to “the conduct of the undertaking of the employer” is broad and will impose the obligation upon the SES wherever SES operations are being undertaken. It doesn’t matter whether or not an employed member of staff is on site as VicSES is an employer and its operations and training are its activities or undertakings.

The position is not so clear in New South Wales. In New South Wales the relevant Act is the Occupational Health and Safety Act 2000 (NSW). Again volunteers from the SES are not employees so the relevant provision is section 8(2) which says:

“An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.”

This has a two part test. The obligation arises if there is a risk cased by the ‘employer’s undertaking’ but only whilst the non-employees (including volunteers) are at the ‘employer’s place of work’. A critical question in New South Wales will be deciding where is the ‘employer’s place of work’?

Section 4 says

“place of work” means premises where persons work.

and

“work” means work as an employee or as a self-employed person.

A place where NSW SES volunteers are responding or training is not a place of work (at least not the SES’s place of work) as those volunteers are not working as employees or self-employed persons. Once a paid member of staff attends the scene (eg a training officer or a Regional Controller) then it would be a place where SES employees are working as an employee and it would become their place of work (see also the decision in Workcover v NSW Fire Brigades [2006] NSWIRComm 356 which found the fire ground was the place of work of the fire fighters at a factory fire).

Absent the presence of paid staff it is arguable, but unclear, that the place where SES volunteers are responding or training is still the place of work of SES staff as the Commissioner and other staff have responsibility and authority over the site. It is the paid staff that issue training and operational instructions and have ‘line management’ for the volunteer units and their operations. The para-military structure of the SES ensures that volunteers report to and are accountable to ‘superior officers’ so it can be argued that any response is the place of work of the Commissioner and others.

The ambiguity in the NSW legislation could lead to foreseeable problems. To take the factory example, the factory is operated by an employer and is the employer’s place of work. The employer has a clear obligation to take steps to ensure the health and safety of the volunteers on scene as they are at the employer’s place of work, but there may be no corresponding duty on the SES. If that were true liability for injury may be sheeted home to the factory owner rather than the SES which may make employers reluctant to seek SES assistance. If the SES are assisting at a scene whether other emergency services are also on scene, then consistent with the decision in Workcover v NSW Fire Brigades the paid members of those emergency services (retained and full time fire fighters, ambulance officers etc) may have more of an obligation to ensure the safety of SES volunteers than the SES does. This could cause conflict and confusion as to who is in command, SES volunteers who are not bound by the OHS Act, or paid emergency service staff, who are?

It’s not the members
Regardless of the fine legal points (remembering that the application of the OHS Act is clearer in Victoria than it is in New South Wales), it should be heartening to note that in both cases, that is the case involving the NSW Fire Brigades and the recent prosecution of VicSES it was not the individual fire-fighters or volunteers or trainers that were prosecuted. In each case it was the organisation itself that was the subject to the proceedings reflecting the view that the safety failures lay not in the decisions of the members on the ground or their failure to apply safe practices and policies. Without knowing the details of this latest case, we may assume that the prosecution of the organisation, rather than an individual , represents a view by WorkSafe in Victoria and WorkCover in New South Wales, reflected a view that in each case it was an institutional or organisational failing to ensure that the members had the tools, the resources or the training to safely perform their task.

Michael Eburn
30 November 2009.