This is the second of my NSW questions (see ‘Response’ driving with NSW RFS’ (February 2, 2015)). This question deals with compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW). My correspondent asks:
Within the Brigade we have a weekly (minimum) bicycle ride to improve/maintain fitness as well as use the opportunity to remain familiar with changes in our Brigade area. We have had special hi-viz shirts made and carry our brigade logo and name. If we are injured in the course of this activity are we covered under the workers comp arrangements available to emergency service volunteers?
The answer is ‘you won’t know until you get injured!’ Let me explain why.
The Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) brings volunteers with the Rural Fire Service, State Emergency Service and other emergency services (such as Surf Lifesaving NSW) into the workers compensation scheme even though they are not employed by the service for which they volunteer.
This answer will focus on Bush Fire Fighters Compensation (ss 5-22). To be eligible for compensation a fire fighter has to suffer a relevant injury. According to s 7, the Act applies to:
(1) … personal injury received by a fire fighter:
(a) arising out of or in the course of fighting a bush fire, or
(b) arising out of or in the course of a relevant journey by the fire fighter in relation to a bush fire.
(2) This Part also applies to personal injury received by an official fire fighter (or a person of a prescribed class) arising out of or in the course of:
(a) the carrying out of an associated operation or work, or
(b) a relevant journey by the official fire fighter (or the person) in relation to an associated operation or work.
(3) This Part also applies to an injury being a disease which is contracted, aggravated or exacerbated or which deteriorates in the course of doing anything referred to in subsection (1) or (2) if the doing of that thing was a contributing factor.
What we have in mind here is a volunteer being injured during a bike ride that is organised and endorsed by the Brigade. In those circumstances s 7(1) is not relevant as this is not about fighting a bush fire or travelling to or from the fire. Further s 7(3) will not be relevant. Therefore, for the Act to apply, s 7(2) must apply. Section 7(2) depends on the meaning of ‘associated operation or work’.
That term, associated operation or work, is defined in s 8, which says
(1) An associated operation or work is:
(a) a bush fire preventive operation,
(b) preparatory work,
(c) work of a prescribed kind (which may, but need not, be related to bush fire fighting, bush fire preventive operations or preparatory work), or
(d) work which, in the opinion of the Authority having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989 , should be deemed to be work of a kind to which this paragraph applies.
Riding a bike is not ‘bush fire preventive operation’ (s 8(1)(a)). I would suggest it is not ‘preparatory work’ (s 8(1)(b)). One could argue that by training together and using the ride as an ‘opportunity to remain familiar with changes in our Brigade area’ it is preparatory work but I would not think that is what is intended here. This might be maintaining equipment, clearing fire trails or the like. It’s arguable, but as I say I would suggest this is not what s 8(1)(b) is intended to cover.
Where legislation refers to anything as ‘prescribed’ we need to look to the regulations. The Workers Compensation (Bush Fire, Emergency And Rescue Services) Regulation 2012 (NSW) reg. 9 says, that for the purposes of s 8(1)(c), work that is covered by the Act includes ‘fund-raising for a rural fire brigade by an official fire fighter that is authorised by a fire control officer is an associated operation or work if that fund-raising is carried out voluntarily and without remuneration or reward.’ A fire fighter who is out running the raffle at the local fete is covered. Clearly reg 9 does not extend to regular bike rides.
That leaves s 8(1)(d); that is
… work which, in the opinion of the Authority having regard to all the circumstances and the advice of the Minister administering the State Emergency Service Act 1989 , should be deemed to be work of a kind to which this paragraph applies
The ‘Authority’ is the WorkCover Authority of NSW (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) s 3). So you’re covered if the WorkCover Authority, having taking the advice of the Minister, thinks you should be covered. One could argue that in all the circumstances, given that it’s an endorsed brigade activity, you’re wearing shirts that carry the brigade name and logo and it’s good for the brigade that you should be covered, but at the end of the day, it’s up to the WorkCover authority. So you won’t know if you’re covered until you get injured and make a claim!
It could be argued that this ride is preparatory work (within s 8(1)(b)) and therefore members are covered but I am not convinced that is the type of work that s 8(1)(b) is directed at. If that is the case you are covered if the WorkCover Authority thinks you should be covered.