This cryptic heading reflects the issues raised in this question from a NSW RFS volunteer:

One of our members who was previously not an officer of the brigade gained employment with the RFS and as part of his employment was given a staff rank that outranks any of the officers in the brigade. This member has since informed us that he also carries that rank into his volunteer time with the brigade and that as a consequence he has to wear his staff rank to jobs with the brigade and if he is unhappy with the way an incident is being run by the brigade he has a legal obligation to take over control of the incident, and that he is the one that will be responsible if something goes wrong as he would be the senior officer on scene.

I was hoping if you could advise:

1) Whether staff rank does carry across to volunteer time, even if the person hasn’t been voted in as an officer by the brigade;

2) If rank does carry across does the member in question have a legal obligation to take control if they are unhappy with the way an incident is being run;

3) If something were to go pear shaped at an incident where another officer was the IC but the member with staff rank was present would the IC be responsible or the senior ranked member on scene?

The reference to ‘rank v responsibility’ should be obvious, but ‘law v policy’?  That is relevant because the whole role of the Incident Controller (the IC) is a matter of policy not law and it is law that ‘trumps’.  Let me explore the issues to explain.

The starting point for this discussion has to be the Rule Fires Act 1997 (NSW) s 12 ‘Functions of Commissioner’. According to that section the Commissioner is responsible ‘for managing and controlling the activities of the Service’. He or she ‘may determine the various duties that members of the staff of the Service are required to perform’ and determine the ‘ranks of members of the Service’.

The Commissioner has determined issues of rank and these are set out in Service Standard 1.2.1 NSW RFS Ranking and Rank Insignia.  The operational ranks of members are set out in SOP 1.2.1-1 [1]. They are:

(a) Commissioner

(b) Deputy Commissioner

(c) Assistant Commissioner

(d) Chief Superintendent

(e) Superintendent

(f) Inspector

(g) Officer L3/Group Captain

(h) Officer L2/Deputy Group Captain

(i) Captain

(j) Officer L1

(k) Senior Deputy Captain

(l) Deputy Captain

(m) State Mitigation Support Service (SMSS) Crew Leader

Operational ranks are distinguished from operational support such as communications, catering and transport (see [3]). The ranks of Group Captain, Deputy Group Captain, Captain, Senior Deputy Captain, Deputy Captain and State Mitigation Support Service Crew Leader are all volunteer ranks.

A staff rank holder does not necessarily outrank a volunteer; an Officer L3 and Group Captain are the same rank. A volunteer Captain outranks an Officer L1.

The ‘General powers of rural fire brigade officers and others’ to take action ‘for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency’ may be exercised by Deputy Captain or above (Rural Fires Act 1997 (NSW) s 22; Service Standard 1.3.1 Delegations and Authorisations; Service Standard 1.3.2 Powers of Officers).

Both the service standards and the legislation are silent on the exact interplay between ranks. There is no clear statement that there is an obligation to obey the orders of a senior officer though such obligation must be implied.

The role of staff in volunteer brigades is governed by Service Standard 2.1.9 Participation by Permanent Staff in Brigade Activities.  It says ‘Permanent members of staff of the NSW RFS may also be members of, and participate in, the activities of a rural fire brigade’. It doesn’t say whether they should wear their staff rank but there is only one Rural Fire Service, the service consists of the Commissioner, employed staff and volunteer firefighters (Rural Fires Act 1997 (NSW) s 8). It stands to reason that a person is employed by the Rural Fire Service then when they have their uniform on it should include the rank slides that reflect their appointment.

The first question I was asked was ‘Does staff rank does carry across to volunteer time, even if the person hasn’t been voted in as an officer by the brigade?’ My reading of Service Standards 1.2.1, 2.1.9 and the Rural Fires Act s 8 is that there being only one Rural Fire Service a person’s appointment is their appointment whenever they responding as part of that service and it would not make a difference if they were responding in either a staff volunteer capacity.

The next question triggers issues between law and responsibility. AIIMS (4th ed, p 12) says ‘An Incident Controller is appointed for every incident and is responsible and accountable for all of the functions of incident management’.  Readers of that manual would be forgiven for thinking that position reflects, or is reflect in, the law but that is not the case. The role of ‘Incident Controller’ is not expressed in law.   If a matter goes ‘pear shaped’ the person who will always be ‘responsible’ is the Commissioner. The chief officers of Victoria Police, the Country Fire Authority and the Department of Sustainability and Environment certainly discovered during the 2009 Victorian Bushfires Royal Commission that responsibility rested with them, not with their appointed incident controllers (for further discussion on the relationship between the IC and the chain of command see my book Emergency Law (Federation Press, 4th ed, 172-173).

So if ultimate responsibility rests with the Commissioner it is up to the Commissioner to determine how the roles of IC and people of various ranks are to be managed.  One can imagine that a future post event inquiry, depending on the outcome, the question will be relevant.

  • If a senior officer insists that they are to take on the role of IC and displaces a more experienced and qualified ‘junior’ officer then the issue will be why should that happen and the ultimate recommendation will be ‘IC’s should be appointed on the basis of skills and qualifications not rank’ (see 2009 Victorian Bushfires Royal Commission, Recommendation 18 – ‘The Country Fire Authority and the Department of Sustainability and Environment amend their procedures to require that a suitably experienced, qualified and competent person be appointed as Incident Controller, regardless of the control agency for the fire’. Change ‘regardless of the control agency for the fire’ ‘regardless of rank’ and you can see how this will be relevant.)
  • If a senior officer allows a junior officer to remain as IC but there is a poor outcome, the issue will be why didn’t the senior officer supervise the junior officer and either counsel him or her or take over the role when it became apparent things were not working out (see 2009 Victorian Bushfires Royal Commission, Final Report [2.3.5] The Fundamental Responsibility of those in Command’).

When the Commissioner of the Rural Fire Service makes a declaration under s 44 the declaration nominates who is to be the IC.  That person then has the Commissioner’s delegation with respect to the fire and it would not be appropriate for a person of senior rank to the IC, but subordinate rank to the Commissioner, to intervene and somehow remove the person’s appointment.  But the idea of AIIMS is that every incident has an incident controller and they may not be directly appointed by the Commissioner.  In that case the person of senior rank does have a ‘command’ responsibility.

So can I answer the final two questions?

2) If rank does carry across does the member in question have a legal obligation to take control if they are unhappy with the way an incident is being run; and

3) If something were to go pear shaped at an incident where another officer was the IC but the member with staff rank was present would the IC be responsible or the senior ranked member on scene?

The ranked member has a legal obligation to do something if he or she is unhappy with the way the incident is being run.  Service Standard 2.1.9 Participation by Permanent Staff in Brigade Activities [2.8] says (emphasis added):

A permanent member of the staff who participates in a brigade activity as a member of a brigade: (a) does so as a volunteer; and (b) is subject to the direction and control of the relevant brigade, group and district officers unless a safety issue or an inappropriate operational strategy is planned or being undertaken, in which case the issue should immediately be raised with the appropriate officer.

If the incident goes ‘pear shaped’ then everyone will be responsible for their decisions and actions.  The IC will be responsible for what or she did and if the ranked member thought there was an issue he or she will be responsible for explaining what they did about that and if they did nothing, why not.