A Queensland firefighter has written about a matter that (despite my poor attempt at emulating a tabloid sub-editor) is a matter of real concern for many. I’m told that there is:
A story in Queensland [that] has prompted a significant amount of debate and discussion on social media sites. The story is here:
An auxiliary firefighter (same as retained in NSW) refused to shave his goatee beard and was given a couple of options – shave it and stay, move to non operational duties, or leave. He chose to leave. Problem is, he has been a fireman for 18 years and has never been disciplined for having facial hair. It’s only been recently that someone in the hierarchy has pursued and implemented the relevant uniform code. The uniform code for QFES firefighters is also very clear and is a requirement that firefighters adhere to this code when they sign on the dotted line. It’s in the application pack.
Now my understanding of the AS/NZ standard for breathing apparatus is that a person ‘should’ be shaved, not ‘must’. Should being a recommendation, must being a requirement. I know of military and mining industry folk who wear full beards and have adequate protection when wearing positive pressure breathing apparatus. That I have no qualms about.
My question in relation to facial hair stems from a hypothetical. The QFES has implemented negative pressure masks for permanent and auxiliary firefighters to wear at grass fires. To wear a NP mask, you need to be clean shaven and do a ‘face fit test’ annually. There is talk that these masks will then filter down to the rural firefighters. As you are probably aware, there are some significant and magnificent beards amongst the rural firefighting fraternity! Which leads to my question:
If the QFES/RFSQ (Queensland Fire and Emergency Services/Rural Fire Service Queensland) introduce negative pressure masks for rural firefighters, and the rurals refuse to shave beards/wear NP masks, can they stay on the fireground? What happens if medical complications arise in the future because they didn’t wear supplied PPE? Will the ‘we’ve always done it this way’ argument affect fireground managers and potentially reduce the volunteer workforce?
For a related post, see ‘The use of breathing apparatus at car fires – NSW RFS’ (February 17, 2015).
This issue is all about work health and safety. The Work Health and Safety Act 2011 (Qld) says that a PCBU (a person conducting a business or undertaking) ‘must ensure, so far as is reasonably practicable, the health and safety of— (a) workers …’ (s 19(1)). We know that the term ‘worker’ includes a volunteer (s 7) so it does not matter, in this context, whether the fire fighters are full time, auxiliary or volunteer.
The issue is what is ‘reasonably practicable’? Section 18 tells us that:
… reasonably practicable… means that which is … reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—
(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.
I assume the relevant risk is the inhalation of chemicals and gases that are not good for firefighter health. What is the likelihood of that occurring? I imagine it’s almost 100% but I suppose it may be less in a grass fire than a structural or car fire where there are all sorts of plastics and petro-chemicals to be burned. How much harm is likely to happen? Again I can’t say but let me also assume that the harm is ‘less in a grass fire than a structural or car fire where there are all sorts of plastics and petro-chemicals to be burned’. I think a fire service, whether it’s the rural fire brigades or the QFES (given they are all under the same central administration; see ‘Status of Queensland Rural Fire Brigades’ (September 10, 2014) and ‘Passage of the Public Safety Business Agency Bill 2014 (Qld)’ (May 8, 2014)) should have pretty good knowledge about the risks that firefighters face when fighting fires (see Bushfire CRC ‘Operational Readiness Of Rural Firefighters Air Toxics’ [sic]).
Paragraphs (d) and (e) raise the relevant issues. Presumably availability of ways to eliminate or minimise the risk changes over time with better science, innovation and changing costs of PPE. In the history of rural fire fighting, when brigades were local groups turning out in cotton overalls with a beater and spray pack, there was probably no such thing as effective and affordable respiratory protection. In 2015 I assume that ‘negative pressure masks’ are reasonably cheap and effective, hence the decision to require their use by auxiliary and permanent fire fighters. So let us assume they are available and suitable. Then, and only then, can the PCBU consider the cost. I would suggest that cost is not limited to just money but the cost to the whole mission. Things may cost by not allowing people to do their job in a timely manner or in the case by discouraging volunteers. Losing a firefighter with 18 years’ experience is no doubt a cost.
That’s not however the answer, that’s just me going through the issues raised by the legislation. I’m not the decision maker here; at first instance the PCBU has to think about those things. If it is determined that the risk is high, the harm that might be suffered is great, the mask is available and suitable and taking into account all the costs, that the cost is not grossly disproportionate to the risk, then the PCBU should require that the masks are worn by volunteers at grass fires.
In coming to a conclusion about each of the factors listed and in particular (e), ie the costs and in deciding what changes to the workplace are required, the PCBU is required to consult with the workers (including volunteers) (Work Health and Safety Act 2011 (Qld) s 47). As part of that consultation process ‘workers be given a reasonable opportunity— (i) to express their views…; and (ii) to contribute to the decision-making process’ (s 48(1)(b)). It follows that volunteer fire fighters should be given a chance to do that, to express their views on the use of these masks and to contribute to the process by which the PCBU determines whether or not to require their use at grass fires.
Apart from asking for those views, the PCBU must ensure ‘that the views of workers are taken into account…’ (s 48(1)(c)). But being given the chance to participate in the decision making process and having one’s views considered does not mean that the PCBU will make a decision that is in accord with those views. For example the volunteer fire fighters may well express the view that they don’t want to shave their beard, and that the risk is not too great and the cost is too high. The PCBU has to consider that but may still determine that the science and the manufacturer’s recommendations mean that, all things considered, the use of the negative pressure masks is to be mandated.
Once the decision is made it is the duty of everyone, including volunteers, to ‘(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’ (s 28). That is if the WHS policy directive is that negative pressure masks are to be worn, then a worker fails to meet his or her WHS obligations if they refuse to comply with that policy direction. One would also expect senior officers to direct the person not to enter an area of danger if they are not wearing the PPE as one would also expect them to do if a firefighter turned out in shorts or thongs.
What happens if medical complications arise in the future because they didn’t wear supplied PPE? Firefighters are entitled to compensation if they are injured in the course of their duties and there is a move to have presumptive legislation to the effect that certain cancers will be deemed to have been caused by fire fighting (see ‘Landmark legislation to protect [Queensland] firefighters’ (December 11, 2014)). These schemes are all ‘no fault’ so if a fire fighter is injured due to their failure to wear the PPE they would still get medical care and compensation.
The consequence of failing to comply with a WHS duty is not a loss of compensation rights, but it is a criminal offence. A volunteer is only required to meet the duties set out in ss 28 and 29 (see s 34). The obligation to comply with a WHS policy is a duty in s 28 so a volunteer who fails to ‘co-operate with any reasonable policy or procedure’ or ‘comply … with any reasonable instruction’ could be prosecuted. Failure to comply with a health and safety duty in circumstances that exposes ‘an individual to a risk of … serious injury or illness’ is a category 2 offence (s 32). (It does not matter that the individual being ‘exposed’ is also the individual who is failing to comply with his or her duty). If there is failure to comply with a duty but no ‘risk of death or serious injury or illness’ then it is a category 3 offence (s 33). For an individual the maximum penalty for a category 2 offence is a fine of $170 775 and for a category 1 offence it’s a fine of $56,925 (Work Health and Safety Act 2011 (Qld) ss 32 and 33; Penalties and Sentences Regulation 2005 (Qld) cl 2B).
Of course no-one is going to be prosecuted and fine that amount for not wearing a face mask. One would expect many steps before then starting with counselling from senior officers to explain the policy and reasoning behind it; offers of work that does not involve being an active fire fighter; perhaps a direction from a relevant work health and safety inspector etc. All steps long before anyone decided to commence a prosecution; but the option is there.
Finally “Will the ‘we’ve always done it this way’ argument affect fireground managers and potentially reduce the volunteer workforce?” That I can’t say. That is not a question for a lawyer but for fire fighters. Clearly it affected the fire fighter the subject of the initial story who resigned. Will others take the same course? I don’t know.
The critical question I was asked was ‘If the QFES/RFSQ (Queensland Fire and Emergency Services/Rural Fire Service Queensland) introduce negative pressure masks for rural firefighters, and the rurals refuse to shave beards/wear NP masks, can they stay on the fireground?’
The answer is that
- if the QFES/RFSQ determine that wearing these masks is a reasonable response to a risk to health and safety, taking into account all the factors listed in the Work Health and Safety Act 2011 (Qld) and having consulted with the workforce; and
- if, after considering all those matters, they determine that the use of the masks is to be mandatory, just like wearing boots and other PPE; and
- if they determine as a matter of policy that a firefighter who is not wearing the mask is not to be on the fireground ror is not to turn out then:
A firefighter who refuses to shave his beard or wear the mask could be directed or required to leave the fireground (Fire and Emergency Services Act 1990 (Qld) ss 53 and 83).