This question came as an email comment on my earlier post ‘NSW workers compensation and when is an employee a firefighter? or a paramedic?‘ (July 30, 2015).  Even though it was sent as a comment I thought it warranted its own post:

It has come to my attention that there may be an interesting gap in workers compensation coverage which was not anticipated in drafting the current NSW arrangements which you have recently discussed.

My question relates to NSW Ambulance volunteers who are neither paid employees of the service, nor are they strictly paramedics.

These officers include Community First Responders and Volunteer Ambulance Officers (previously described as “Honorary” officers), they perform many of the same functions as paid Ambulance Paramedics including responding in normal ambulance operational uniform, driving ambulance vehicles under ‘urgent duty or R1’ conditions, assessing treating and in some instances transporting patients according to the relevant protocols and pharmacologies.

From my reading of both the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) and also the Work Health and Safety Act 2011 (NSW) whilst being considered volunteers and therefore workers for the purposes of the more recent legislation’s scope, the earlier legislation is silent in relation to the broader position of these officers – perhaps it was reasonably assumed at the time that they would be considered ‘Ambulance Officers” for the purposes of workers compensation arrangements.

My question is – are these officers afforded the more generous protections of the earlier workers compensation arrangements as are their paid paramedic and Firefighter CFR colleagues.

There is a difference between Community First Responders and Volunteer Ambulance Officers.  This is what NSW Ambulance says about Community First Responders:

Community First Responders are accredited and operate under NSW Ambulance governance and training. The majority of volunteers respond under a formal Memorandum of Understanding with the State Emergency Service, the Rural Fire Service, or the NSW Fire Brigades. Community first responders do not operate from a NSW Ambulance or health facility, do not have a ambulance vehicle and do not transport patients.

Community First Responders who are volunteering or responding in their capacity as an SES or RFS volunteer or FRNSW retained firefighter will be entitled to compensation under the scheme that applies to their agency.  RFS and FRNSW firefighters are, by definition, firefighters so the 2012 amendments won’t apply to them.  SES volunteers are not fire fighters but in line with the decision in both In Ware v NSW Rural Fire Service [2014] NSWWCCPD 33 and New South Wales v Stockwell [2015] NSWWCCPD 9 they could argue that if they are injured whilst providing ‘specialist primary care to the injured or sick’ they were at that time a ‘paramedic’ (in the same way that Mr Ware would have been considered a firefighter when working at the fire ground) and so the amendments do not apply to them.

Volunteer Ambulance Officers (or as they were called ‘in my day’, Honorary Ambulance Officers – I served as an Honorary at Coonamble Station in 1989 and 1990) directly volunteer to the Ambulance Service.   According to the Ambulance Service:

Volunteers [sic] Ambulance Officers are accredited, trained and administered under the direct jurisdiction of NSW Ambulance. Volunteers may be attached to a station, a hospital or operate through an established volunteer station with assistance from neighbouring stations. Volunteers ambulance officers respond in an ambulance vehicles and can transport patients.

Their compensation rights are not determined by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) but by the Workplace Injury Management and Workers Compensation Act 1998 (NSW).  Schedule 1 to that Act ‘deems’ certain people to be employees and one class of deemed employees is ‘Voluntary ambulance workers’ (cl 16).   The definition of a voluntary ambulance worker is ‘A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation …’  That could include community first responders so an SES volunteer may want to argue that this provision, rather than the  Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) applies as it may be more generous.

For Voluntary Ambulance Officers this is clearly the governing provision.  They are deemed employees and so the question would become ‘are they deemed paramedics?’  The answer, in my view, would be ‘yes’.   They are volunteering to provide ‘specialist primary care to the injured or sick’ (and the care they are providing is ‘specialist’ even if it is not at the level of an intensive care paramedic).  They are not volunteering to provide mechanical repairs or work in the office but to respond to emergency calls and if necessary transport patients.  It would be my view that they should, and would, be regarded as ‘paramedics’ and the 2012 rules would not apply.   You can see from Stockwell’s case however, that the insurer may not always agree with what seems obvious and dare I say it, right, so they may well want to argue that the exemption for paramedics does not apply to volunteers.  If that were the case a volunteer may end up arguing the point before the Commission.  In my view, and consistent with these earlier cases, the exemption from the 2012 amendments would extend to volunteer ambulance officers.