The question came to me from a member of the RFS. I can’t really answer the question but that won’t stop me posting some thoughts on the issues raised. The question relates to the use of Compressed Air Breathing Apparatus (CABA) when responding to a vehicle fire.
My NSW RFS brigade is a village 2 / CABA brigade. Since we have become CABA qualified we have implemented a policy where at car fires we use CABA qualified members in breathing apparatus to attack and extinguish the fire if they are available. Previous to having CABA the brigade would attack these types of incidents by trying to stay a little further back and avoid the worst of the smoke where possible.
The rationale of our officers in implementing this CABA at car fires policy was due to the toxic chemicals etc contained in car fire smoke and the knowledge that even outside of the main smoke column there are numerous toxins in the air which can be harmful. Given that these risks can be removed or at least minimise by using CABA operators it was felt by the officers that we would be negligent (morally if not legally) to expose our members to a known risk when a safer option was available.
The question has been asked as to whether this policy represents bullying or discrimination against non CABA trained members by not letting them attack the fire. The rationale for this being that we used to attack car fires in that manner before we had CABA and since no one had ever got seriously sick the risk mustn’t be that bad.
We were hoping you could provide your opinion on the following:
Do the officers have a legal/health and safety obligation to use CABA trained members at car fires where they are available?
Do the officers have an obligation (where CABA trained members are available) to stop non CABA trained members from attacking the fire from a distance given that this is the safest option available without CABA but still riskier than using CABA where it is available?
Could the policy as outlined above be considered bullying and/or discrimination?
The issue here isn’t the law as such, but the actual nitty gritty of fire fighting. The RFS Breathing Apparatus SOP says (emphasis added):
BA shall be used wherever firefighters may be subject to hazards, (such as toxic gases, hazardous dusts/fibres, hot atmospheres, smoke and oxygen deficiency) that may injure their respiratory system. Scenarios for its use may include interior structural firefighting, some vehicle incidents, and when assisting in some capacities at HAZMAT incidents.
But what ‘vehicle incidents’ is not explained. The SOP also says:
BA shall only be used in accordance with appropriate safe operating and firefighting procedures.
I don’t know what the limitations are. Presumably fighting a grass fire in CABA is safer than not at least in terms of respiratory exposure but perhaps not in terms of heat exhaustion and manoeuvrability. So one has to consider what are ‘appropriate safe operating and firefighting procedures‘.
One can foresee a difficulty that if it’s decided that CABA is required then that would suggest that all brigades that might respond to a motor vehicle accident (and I would think that’s all of them) would need CABA. Alternatively if it’s safe for some brigades to respond without CABA it must also be safe enough for a CABA brigade to fight a fire without CABA.
The RFS has an obligation to ‘ensure, so far as is reasonably practicable, the health and safety of’ its firefighters (Work Health and Safety Act 2011 (NSW) s 19). Deciding what is ‘reasonably practical’ requires a consideration of
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. (Work Health and Safety Act 2011 (NSW) s 18).
The answer depends upon consideration of all those questions that in turn requires a detailed knowledge of the risk and what are appropriate fire fighting techniques. I can’t address the issues, above, so a definitive answer can only come from the RFS Work Health and Safety Team. Whatever the answer is should be based on science and a proper risk assessment (see ‘Occupational Health and Safety and Discrimination’ (January 5, 2010)).
Presumably the RFS should be able to say:
- CABA is not required in the circumstances; or
- CABA is required in the circumstances; or
- If CABA is available there is one fire fighting technique, but if not there is another technique to be adopted (see NSW RFS village firefighting (April 9, 2014)).
Given that I can’t address the specific question there are some comments that can be made about general principles. Whether it’s ‘reasonably practicable’ to require all firefighters to wear CABA at a car fire is not, as I’ve already noted, something I can comment on. Ultimately that is something the RFS has to address.
A firefighter (including a brigade officer) must
(a) take reasonable care for his or her own health and safety, and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. (Work Health and Safety Act 2011 (NSW) s 28).
(It should be noted that an officer of a brigade is not an ‘officer’ for the purposes of the Work health and Safety legislation. Under WHS law an officer is that is a ‘person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Crown’ (s 247)’. The extra duties imposed on ‘officers’ (s 27) are not applicable just because one is called an ‘officer’ by the RFS.)
As a brigade member one might refuse to go near a car fire without CABA on the basis that failure to do so is not taking care of your own safety. As for other members of the brigade, the brigade needs to comply with the relevant RFS policy, which at least to the extent that it is publically available, is unclear.
I can’t see how applying the brigade policy can constitute discrimination. Discrimination is unlawful when it is treating someone differently on the basis of the sex, marital status, age, sexuality or other prohibited reasons (see Anti-Discrimination Act 1977 (NSW)). Discriminating on other grounds is not lawful it may at times be required. The principle of anti-discrimination is that like cases should be treated alike but someone who is trained in CABA is not the same as someone who is not. If there is a real risk it is appropriate to discriminate against the non CABA trained member on the grounds if he or she is exposed to an unnecessary and unreasonable risk that the CABA trained member is not exposed to. It is, fortunately, not discrimination to refuse to let me use a piece of equipment I don’t know how to use, or to refuse to allow me to do a task that requires knowledge and training I don’t have.
The action described here could be bullying, depending on the motivation and how the policy is implemented. The Australian Human Rights Commission defines bullying as ‘verbal, physical, social or psychological abuse by your employer (or manager), another person or group of people at work.’ They give the following examples, ‘excluding you or stopping you from working with people or taking part in activities that relates to your work’ and ‘intimidation (making you feel less important and undervalued)’ (see https://www.humanrights.gov.au/workplace-bullying-violence-harassment-and-bullying-fact-sheet). One can see that if an individual is being singled out and not allowed to take part in fire fighting duties that could be excluding them from the task and make them feel ‘less important or undervalued’. That could be avoided by making the reasoning clear, ensuring that the person is fully involved in all of the brigade activities that they can be involved in, taking steps to ensure that they are valued for their contribution and most importantly, ensuring that the policy is not applied to an individual. If the policy is being applied to all no CABA members and for genuine WHS concerns then I fail to see how it would be considered ‘bullyng’. The exception would be if there was a clear RFS policy on the use of CABA that did not require the use of CABA in the circumstances and if the individual concerned was, in all other respects, qualified to fight the fire.
As noted this question is really about the nitty gritty for fire fighting, not the law. As such I suggest that this is a question you need to send to the RFS Work Health and Safety team.