This is another Work Health and Safety issue from a member of the NSW RFS.  My correspondent reports that:

Recently the post below was made in a forum that was discussing the use of non-RFS sourced smoke masks.

“… Volunteers from time to time purchase and use other items of PPE that are compliant with [Australian Standards]… but not on the RFS approved purchasing list. The NSWRFS are bound to government procurement process and utilise many criteria when selecting products for use, such as compliance with NSWRFS specification (sometimes this exceeds the [Australian Standard]), ability for the product to be readily available and have sufficient numbers and into store logistics options, product support, value for money, strength of the companies trading, the list goes on. It is about providing suitable PPE products to meet the high standard of WH&S that the NSWRFS are required to maintain under the WH&S legislation. If you choose to purchase and use a non-complainant piece of PPE and as a result sustain injuries you may implicate not only yourself, but all those around you from your Crew Leader to the Commissioner for not ensuring you have the appropriate PPE under the WH&S legislation.

Whilst the “motherhood” style of this is understood, ie the intention to provide a safe workplace and working environment, the broadness of it concerns me as it may be at odds with, or perhaps overstates the requirements or limitations of WHS with regards to PPE / PPC.

Read in particular the portion in bold, above.

Firstly, the RFS, as much as it thinks it might, does not provide all required PPE. As an example, look at a broad brimmed hat for sun protection. We work often outside and not always directly at fires, and in Australia a broad brimmed hat is necessary for sun protection. The RFS does not supply these items. So I bring my own, it doesn’t work well, I get skin cancer, and I put in a workers compensation claim. Another example, the RFS does not provide folding chairs. I bring a chair or my brigade buys chairs and we use these chairs at staging areas whilst waiting for deployment. I fall out of my chair and get injured, and place a compensation claim. In these two situations the RFS tells me the items does not meet the Australian Standard and I have placed myself, my crew leader, and the service at risk.

Secondly, the RFS sourced item that meets the Australian Standard could still be dangerous or deficient. Going back to smoke protection, the RFS P2 mask is prone to ignition by embers, does not seal well and is ineffective especially for members with facial hair, and there is plenty of anecdotal comments from members that allude to these issues. So a member decides to use an item that does not meet the Australian Standard but is actually safer. The member now theoretically puts himself and the service at risk with those “implications”.

Thirdly, the RFS issues PPC that does not meet the Australian Standard for a task that the RFS allows, for example structural firefighting or village firefighting. The Australian Standard requires a full “bunker suit” style ensemble. The RFS allows members to wear wildland PPC under certain circumstances eg external firefighting (a form of risk management) but it could be seen that the “bunker gear” would be safer and the best risk management.

Fourthly, I am aware of a brigade that in 2009, sourced a “better” smoke mask and approached the RFS Engineering Section for approval. The approval was not given, and instead a reply was given, with words to the effect “that the smoke mask could only be used at the risk of the member, and the service would not accept any responsibility or compensation claims arising”.

The “no fault” scenario of the workers compensation scheme is perhaps ignored in the recent statement, and perhaps in retrospect the communication given in 2009, and the recent statement could be implied to communicate that the member’s perceived negligence puts the member at risk by “implicating” oneself; (Implicating for what, though I ask).

Also, I would suggest that the WHS legislation does not specify any particular PPE/C nor does it imply that the Australian Standard is the measure of being appropriate PPE/C other than that it perhaps it should be “reasonable” which is not defined.

Let us then consider the text in bold, above.  It says:

If you choose to purchase and use a non-complainant piece of PPE and as a result sustain injuries you may implicate not only yourself, but all those around you from your Crew Leader to the Commissioner for not ensuring you have the appropriate PPE under the WH&S legislation.

Is that true and if so, implicating oneself, and others, for what?

Workers Compensation

My correspondent is correct that the scheme provided for in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) is a no-fault scheme.  A fire fighter is who is injured:

  • in the course of fighting a bush fire or carrying out ‘an associated operation or work; or
  • when travelling to respond to a fire or as part of that associated operation or work,

is entitled to compensation (ss 7 and 10). There is no question of whether or not it was the fire fighter’s, or someone else’s, fault and there is no discount for ‘contributory negligence’ so the use of ‘non-compliant’ PPE is not relevant in that context.

Work Health and Safety Act 2011 (NSW)

What this must mean is potential prosecution under the Work Health and Safety Act 2011 (NSW).  It’s a criminal offence not to comply with one’s duties under that Act and a volunteer is required to ‘take reasonable care of their own health and safety’ and to ‘co-operate with any reasonable policy or procedure …relating to health or safety at the workplace that has been notified to workers’.  As my correspondent has also, correctly noted:

… the WHS legislation does not specify any particular PPE/C nor does it imply that the Australian Standard is the measure of being appropriate PPE/C other than that it perhaps it should be “reasonable” which is not defined

The role of Australian Standards

Standards Australia is a company that creates the various standards.  In an earlier post (‘Face masks for residents near the Hazelwood Mine fire, Victoria’ (February 26, 2014) I said:

… it may come as a surprise that Australian Standards are not legally binding. There is no general obligation to comply with Australian standards though there may be in specific circumstances. For example a motorcycle crash helmet must comply with Australian Standard 1698-1988 but that is because of a specific rule (Trade Practices Act 1974 – Consumer Protection Notice No. 9 of 1990 – Consumer Product Safety Standard: Protective Helmets for Motor Cyclists) rather than some general obligation to comply with the Australian Standards.

The relevance of the Australian Standards is that if there is an allegation that someone failed to act reasonably, whether that is in a claim for negligence or a prosecution for work health and safety standards, evidence of compliance with (or failure to comply with) an Australian standard may be evidence that the defendant’s response to a risk was (or was not) reasonable. It is not however conclusive evidence, compliance with an Australian standard does not prove a reasonable response to risk; evidence of failure to comply does not prove an unreasonable response to risk. It is just one factor to be considered in all the circumstances.

A search of the Australian Legal Information Institute (AustLII) using the search <“Australian standards” and negligence> brings up 996 cases which may sound like a lot but when one considers that is nearly all Australian tribunal and courts going back about 25 years and, in the case of the High Court, to 1901, it’s not really that many.  The cases (having looked at a view from the superior courts, not all 996) do as my correspondent has suggested, they refer to the Australian Standards as evidence, but not conclusive evidence as to what may be required in particular circumstances.

What is required?

From a Work Health and Safety perspective the issue is whether or not the person conducting the business or undertaking (the PCBU) has ‘so far as is reasonably practicable’ taken care to ensure the health and safety of the workers, including volunteers.

If there really is an Australian standard for folding chairs, and a fire fighter has bought one that is not compliant one might infer that it’s not safe; so if a fire fighter is intending to use their homemade dodgy built chair then it would be reasonable for the brigade captain to tell them not to use it; but if it’s been purchased from a reputable supplier there is no reason to think that it’s not safe as a chair (though it may not be safe to carry it in the appliance or use it at a particular staging post because of some issue there, but that’s a different matter).   If there is no relevant standard, then ‘non-compliance’ is not an issue.

Where there is a relevant standard one would expect that equipment that does comply with a relevant standard is fit for purpose, but that simply begs the question of what is the purpose that the standard was tested against; an item may comply with the standard and still not be safe for a particular use.  .

A piece of equipment may not be approved by the RFS but that does not meant it is not safe.  The quoted post says that in selecting equipment the RFS has to consider the

… ability for the product to be readily available and have sufficient numbers and into store logistics options, product support, value for money, strength of the companies trading, the list goes on.

None of those criteria are specifically about safety.  So there may be a piece of equipment that is useful and safe but which can’t be obtained, or supplied, by the RFS in a cost effective way. But that does not mean it would be unsafe if a member chose to buy it themselves.  The fact that a piece of kit has not been approved, given the factors that they have said they take into account, does not meant that it is not safe.  It really is a question of fact and warrants a risk assessment in all the circumstances.

Of course there is a difference between gear that has not been approved and gear that has been specifically prohibited.  If there is kit that the RFS has specifically ordered is not to be used as an assessment has indicated it’s not safe for the RFS purposes that is again a different issue and a worker (including volunteer) must comply with those sort of directions to meet their duty under the WHS Act.

Conclusion

The issue is not whether or not an item is compliant or whether or not it is issued, the issue is whether or not it is safe and that is a question that depends on the particular circumstances. The use of non-compliant or non-approved equipment does not necessarily determine whether or not equipment is safe.  Even equipment that is compliant and has been issued, may still be unsafe in the circumstances.