A correspondent has brought to my attention a report in the Port Pirie Recorder (‘Local Volunteer used in case study for emergency services compensation’ Port Pirie Recorder, 19 July 2012) as well as the discussion in the House of Assembly’s Estimates Committee.  The gist of the report is that an unwaged SES volunteer was injured in the course of her SES duties.  The Port Pirie Reporter says ‘Her husband had to take time off work to care for her but because this woman was not working, she was not covered by the Workers Compensation Act.’

Many States deem their emergency service volunteers to be employees of the government and they are, therefore, entitled to workers compensation if they are injured whilst performing their volunteer duties, see for example the Victoria State Emergency Service Act 2005 (Vic) Part 4.   In New South Wales there is a specific compensation scheme for emergency service volunteers that is, in some respects, more generous than workers compensation (see Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW)).

The position in South Australia, at least for SES volunteers is unclear.  The Workers Rehabilitation and Compensation Act 1986 (SA) s 103A provides that the government of South Australia is the presumed employer of some ‘prescribed’ volunteers and that they are, therefore, entitled to workers compensation.   The Workers Rehabilitation and Compensation Regulations 2010 (SA)  Reg 17 says that, for the purposes of s 103A, the relevant volunteers are volunteer firefighters with the Country Fire Service; CFS volunteers are deemed employees of the State, SES volunteers are not.

I mentioned the status of South Australian SES volunteers in an earlier blog post (Councils and the SES in South Australia) a correspondent commented on that post and said:

My understanding of the SA SES workers compensation context is that it governed by a MoU between the Minister of Emergency Services and SAFECOM. This document, as far as I can tell, is not publically available, so therefore it is impossible to know the details of the MoU. However I have been told that the MoU essentially covers SA SES with a kind of workers compensation.

According to the Hansard (House Of Assembly, Estimates Committee B, Thursday 21 June 2012, p 123) the Hon. J.M. Rankine (the Minister for Police, Emergency Services, Multicultural Affairs, Correctional Services and Road Safety) said ‘The systems that are established are that SES and CFS workers (volunteers) are compensated under the Workers Compensation Act’ and later ‘There is no difference to the cover provided by the government.’  That may be true if the MoU in fact extends the identical cover, but as my correspondent noted, ‘this document … is not publically available, so therefore it is impossible to know the details…’  The certainty of cover is certainly not the same as the CFS volunteers have their right to compensation enshrined in legislation.

Ms Rankine also referred to top up insurance provided by the CFS volunteers association but not the SES volunteers association.  The following conversation took place:

Dr McFETRIDGE: But she has no income; that is the problem.

The Hon. J.M. RANKINE: That is exactly right, she does not; it was quite a unique situation. If you are in the Country Fire Service, as I understand it, the Country Fire Service Volunteers Association has an insurance policy that will top up workers compensation payments. The SES Volunteers Association does not have similar policies available so, if you are talking about differences between the SES and the CFS, that is the key difference.

I am afraid that just doesn’t make sense.  It is not explained what that insurance provides or how it would be relevant in this particular case.  In terms of workers compensation, the fact that the volunteer has no income is irrelevant.  Had this volunteer been a CFS volunteer and therefore a deemed employee she would have been entitled to weekly payments based on the wages she ‘would have received if he or she had been working in employment for which he or she was reasonably fitted’ (s 103A(2)(b)(ii)).  If it is true that the government provides the same benefits to SES volunteers then the fact that she was not receiving a wage should not have affected her ability to receive weekly income support.  It means the fact that ‘she has no income’ did not make the situation unique or outside the intended compensation scheme.

The fact that she was unwaged would also be irrelevant to the question of domestic support.  A deemed employee would be entitled to ‘the cost of attendance by a registered or enrolled nurse, or by some other person … where the injury is such that the worker must have nursing or personal attendance’ (Workers Rehabilitation and Compensation Act 1986 (SA) s32(f)) and if SES volunteers are offered the same compensation provisions then again her employment status should have been irrelevant and did not make the situation ‘unique’. It is reported that the Government did offer to provide domestic assistance that, according to Ms Rankine ‘… was quite significant and … consistent with state government provisions for any employee. We were prepared to employ someone to do her domestic duties while she was recovering from her injuries and cover a 10-day roster while her partner was working.’  That would appear to be the sort of benefit that would have been provided to an employee or deemed employee under s 32.

What remains unclear why the compensation scheme for CFS volunteers is set out in the Act and Regulations but the same is not true for SES volunteers.  The situation could be easily rectified by ‘prescribing’ SES volunteers for the purposes of the Workers Rehabilitation and Compensation Act 1986 (SA) s 103A.  As it is the right of SES volunteers to receive compensation remains unclear, depends on the generosity of the government of the day.

Michael Eburn
6 August 2012.