A correspondent has raised some interesting issues regarding the interrelationship between the SES and local councils in South Australia.  They have asked:

My issue is with the interface of Emergency Management law, Workplace safety and worker compensation law, and local government (LG), specifically LG employees seconded to emergency services in response and recovery. The state context is that of South Australia.

I will first address the issue hypothetically. There is no current case, or judicial determination that I am aware of, at the moment.

A flood event has occurred and Council employees have been requested to assist the SA SES with building levees.

The council workers are under the direction and control of the SES command.

The council workers will still be paid for work of regular hours by the council, however Council workers can be expected to work unpaid overtime, especially in times of Emergency.

A council worker injures him/herself while attending to SES tasked work.

Who should be responsible for the workers compensation and injury management needs of that worker?

Is the Council worker a type of SES volunteer?

Then there are questions of liability, with regard to plant and equipment, also being seconded and used by Emergency Services … the way I see it, tiny little local councils are exposed to a risk that, their very expensive earthmoving equipment could be damaged or destroyed.

I have to start by restating that what follows is a general overview of the law without reference to specific facts and cannot be relied upon if there is a specific issue under consideration.

With respect to workers compensation that is governed by the Workers Rehabilitation and Compensation Act 1986 (SA).  An injury, illness or other disability is compensable if it arises from employment (s 30).   Employment includes work done under a contract of service (legal jargon for a traditional employment contract) or where the Crown is presumed to be the employer (s 3).  The Crown is the presumed employer of volunteer fire fighters with the South Australian Country Fire Service (Workers Rehabilitation and Compensation Regulations 2010 (SA), reg 17) but not the State Emergency Service.

The South Australian State Emergency Service is the ‘Control Agency for storm and flood incidents’ (South Australian State Emergency Plan, p 74).  As the control agency the SES would set out the priorities for incident management and would be expected to call on resources, including council resources to meet those objectives.  The council would retain ‘command’ ie the ability to direct, its own staff.    I would query whether ‘Council employees have been requested to assist the SA SES with building levees’ or ‘The council workers are under the direction and control of the SES command.’  I think a more accurate description would be the SES ask the Council to build the levees and council directs the staff, even if that involves putting them under the control of the SES.  The practical difference may be little but the legal reality would be that the employees are under a contract of service with their council, and doing that work is in fact doing the work they are employed to do.  It would be the council’s workers compensation insurer that would have to meet any costs if the worker were injured in the performance of their duties.  In those circumstances the worker is not an SES volunteer or any sort of volunteer, they are performing work at the direction of the employer council even if that direction is ‘go and do what the SES ask you to do’.

Notwithstanding the discussion, above, the officer in charge of SES operations at a particular event may ‘take possession of, protect or assume control over any … vehicle or thing’ and may ‘direct, insofar as may be reasonably necessary in the circumstances, any person to assist in the exercise of any power’ (Fire and Emergency Services Act 2005 (SA) s 118).  It follows that the SES could direct a council grader operator or the like to assist in operations and could do that without first asking the council for permission.   In that case it may be thought that the grader driver is no longer working for council (but given councils close link and need to protect the community, I suspect it would be a ‘brave’ council, using ‘brave’ as it may have been used in Yes, Minister, that sought to claim the council was not acting as an employee at the time).   The SES is part of the Government (the Crown) (Fire and Emergency Services Act 2005 (SA) s 106(3)) so if there was any claim made against the SES it would be dealt with as a claim against the State Government. The State Government is ‘self-insured’ by the South Australian Government Financing Authority.  Further any amount that the state paid to reimburse a council for equipment lost during a flood would form part of the State’s accounts under the Natural Disaster Relief and Recovery Arrangements so that, once a threshold amount had been spent, the State could look to the Commonwealth for assistance.

As for plant and equipment presumably it is insured and is being used to protect the very public that the council is there to protect.  It seems like a core function of council to use their equipment to try and protect their community from floods.

The Fire and Emergency Services Act 2005 (SA) s 141 and the Emergency Management Act 2004 (SA) s 36 provide that insurance against loss or damage from a hazard extends to damage caused by a person acting under that Act.  In short if the council has insurance against flood damage, then damage done to their property by an SES officer or acting under the direction of the SES would be deemed to damage by flood and compensable under the insurance policy.

In short the answers to the questions raised are not absolutely clear.  In my view the council worker who is working at the direction of the SES, whether the SES has asked him or her or whether they have asked council and council have directed him or her, would still be acting in the course of his or her employment with council and council would be responsible for the workers compensation and injury management needs of that worker.

With respect to the equipment I would think damage done to council equipment in response to a flood and flood response, whether at council’s own initiative or at the direction or request of the SES would be damage done to council’s property by the flood and council should have arrangements in place to cover those potential losses.  If they believed the property was damaged negligently or inappropriately they could seek to recover those costs from the State Government.  Both politics and law would determine the State’s response to that claim but the State has appropriate insurance through the Financing Authority, supported by the NDRRA.

Remember this is a general commentary rather than specific advice and should not be relied on, by my correspondent or anyone else, if there is a specific case at hand as the specific facts will always determine how the law is to be applied in the particular situation.

With that general disclaimer in mind, I trust this is of some interest.

Michael Eburn

11 May 2012.