In an earlier post (Fire fighters and paramedics exempted from workers compensation changes) I noted that there had been changes to Workers Compensation laws in NSW.  The changes were meant to limit compensation benefits.  Originally the changes would have applied to everyone other than volunteers whose entitlement to compensation was determined by the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW).  As a result of political pressure, and whilst the Bill was making its way through Parliament it was amended to exclude police officers, and later paramedics and fire fighters from the changes.

The Australian Workers Union on behalf of its members, sought advice from the Office of Environment and Heritage that it would regard those employees who were engaged in fire fighting, including hazard mitigation duties, as ‘fire fighters’ for the purpose of the changes and so they would be covered by the older, more generous compensation scheme.  The Office of Environment and Heritage did not respond and so the matter was escalated as an industrial dispute and ultimately resolved by the Industrial Relations Commission (See Parks employees exempt like firefighters;; or you can read the full judgement here: The Australian Workers’ Union, New South Wales v Office of Environment and Heritage [2012] NSWIRComm 133 (29 November 2012)).

The union argued that anyone who had ‘attained Fire Fighter Level 1 competency’ and who may be called upon to perform firefighting activities should be regarded as a fire fighter.  The Government’s argument was that employees would only be regarded as a fire fighter ‘when (and only when) such persons are directly involved in firefighting duties.’  Boland J said (at [74]):

The positions adopted by the parties are not without their respective difficulties. The Unions’ position would require a clerical employee who may spend 90 per cent of his or her time on clerical duties and 10 per cent on firefighting duties to be regarded at all times as a firefighter for the purposes of [the exemption] in circumstances where clerical employees generally would not be entitled to the exemption, and consequently the valuable benefit, that [it] provides.

The respondents’ position, on the other hand, lacks certainty. What does “directly involved in firefighting duties” mean? The respondents submitted hazard burning was not firefighting. Yet … [the] Operations Team Leader, Southern Region Batemans Bay for Forests NSW, gave evidence for the PSA that hazard reduction was almost as dangerous as direct fighting.

As noted above, volunteer fire fighters and state emergency service volunteers were always going to be exempt from the changes.  This affected His Honours reasoning; he said the term fire fighter could not be limited to full time fire fighters because, if it was, it would exclude volunteer or retained firefighters with NSW Fire and Rescue.  Further, that the reason the exemption was extended to ‘firefighters’ was to ensure that employed fire fighters, working alongside Rural Fire Service volunteers, at the same fire, were not subject to different compensation schemes, the volunteers have already been exempted from the changes.

On the other hand, it was not intended to exempt from the changes any employee who may, occasionally, be called upon to perform fire fighting duties regardless of their actual duties at the time of any injury.  He said:

It is apparent from the Parliamentary debate the purpose of extending [the exemption] to cover firefighters and paramedics was to exempt from the 2012 amendments only a small and select group of occupations that had in common the provision of emergency services and may be working side by side with each other attending to the same emergency. Whilst employees of the respondent may be regarded as providing an emergency service when they perform the work of firefighting, they are not engaged in providing emergency services or likely to be working side by side with other emergency workers when performing other work that comes within the ambit of their designated occupation of Ranger, Forester, Field Officer, Project Officer and the like.

His Honour held that an employee is to be regarded as a firefighter ‘immediately they commence to perform firefighting duties and are no longer a firefighter when those duties cease’. To be classified as a firefighter, an employee needs to be ‘trained, medically fit and qualified’ as a firefighter and engaged in fire fighting duties.  Those duties include activities aimed at:

  • Control or suppression of a fire including;
    • Travelling to or from the scene of the fire;
    • surveillance of a running fire;
    • mopping-up;
    • logistical support, e.g., meal delivery, fuel delivery, field based repairs on plant and equipment in an active fire ground);
    • aerial attack;
    • application of chemical fire retardants and foams; and
    • office duty performed directly in connection with the organisation and direction of the firefighting effort.
    • Hazard reduction including;
      • Hazard reduction burning;
      • felling trees;
      • fire trail maintenance;
      • the creation of fire barriers using machinery or hand tools; and
      • the use of aircraft to drop incendiary devices.
      • Fire stand by duty and fire detection (both fire tower operation and mobile fire patrol).

That won’t answer every question and there is no doubt that, in the future, the Industrial Commission will be called upon to decide whether, on a particular day, a particular employee was engaged in ‘fire fighting’ or whether there activities were too far removed so that they were not acting as a ‘firefighter’ and therefore have to rely on the post 2012 workers compensation scheme rather than the more generous pre 2012 scheme.

Another question yet to be resolved is who is a paramedic.  As his honour noted (at [97]) the term will include a ‘paramedic employed by the Ambulance Service of NSW’ but we know there is a growing private paramedic sector and, given that paramedics are not yet a registered health profession, anyone can all themselves a paramedic (see Are St John volunteers paramedics? Should they be?; see also Eburn, M and Bendall, J ‘The provision of Ambulance Services in Australia: a legal argument for the national registration of paramedics’ (2010) 8(4) Australian Journal of Emergency Primary Health Care; Article Number: 990414.)

I’ll leave it to the readers to decide what the appropriate epithet to describe this situation is.

Michael Eburn.