This question comes from someone in Sydney. I’m not sure if they are an emergency service member or not, but that doesn’t matter. They say:

I work full time in a fairly large two-story office building in Sydney, and our office has a chief warden, deputy chief warden, several floor wardens and several 1st aid officers. From my employers policy – two of the duties of chief warden/deputy chief is to:

“Brief the emergency services personnel upon arrival on the type, scope and location of the fire or incident and the status of the evacuation, and thereafter assist them as required.”

And

“Once the site has been declared safe by emergency services personnel, attend the evacuation site to brief evacuees of the reason for evacuation and any advice given by the emergency services, including permission or restrictions for return into the building.”

At a recent office toolbox meeting, it was commented that in the event of an emergency, overall control of the situation would be directly handed from the chief warden to an employee who is a volunteer member of NSWSES (who is a 1st aid officer, but not an emergency warden).  The justification for this was that technically a member of an emergency service is onsite, pending arrival of FRNSW/NSW Police/ASNSW.  The chief/deputy/floor wardens receive training through external training providers, but 1st aid officers do not.  Presumably, if any 1st aid officer were co-ordinating an evacuation then they would not be attending to first aid issues.

Assuming that the employee is NOT a “Senior Emergency Officer” under Section 18A of the State Emergency Service Act 1989, my questions are:

  • Does an employee of a company “automatically” become a “onsite emergency service” in the event of an emergency?

  • If there were a fatality during the emergency prior to the arrival of (for example) FRNSW, could that employee / volunteer be held liable if they either continued as a 1st aid officer and declined to take control of the site from the Chief Warden, or by counterpoint, took control of the site and ceased their duties as a 1st aid officer?

  • Can a volunteer member of any emergency service (SES, RFS, VRA etc) “switch hats” and take control of a site from their employers designated chief warden pending arrival of FRNSW/NSW Police/ASNSW, and what are potential legal repercussions of doing so?

Under the Work Health and Safety Act 2011 (NSW) a person conducting a business or undertaking (a PCBU) must take reasonably practicable steps to ensure the health and safety of workers and people at the work place (ss 18 and 19). That obligation is given more meaning in the Work Health and Safety Regulation 2011 (NSW). The regulations say, amongst other things,

A person conducting a business or undertaking at a workplace must ensure that:

(a) an adequate number of workers are trained to administer first aid at the workplace, or

(b) workers have access to an adequate number of other persons who have been trained to administer first aid. (Regulation 42(2))

And

A person conducting a business or undertaking at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following:

(a) emergency procedures, including:

(i) an effective response to an emergency, and

(ii) evacuation procedures, and

(iii) notifying emergency service organisations at the earliest opportunity, and

(iv) medical treatment and assistance, and

(v) effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace … (Regulation 43(1)).

Further

A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency. (Regulation 43(4)).

For the purpose of the Regulation:

emergency service organisation” includes any of the following:

(a) the Ambulance Service of NSW,

(b) Fire and Rescue NSW,

(c) the NSW Rural Fire Service,

(d) the NSW Police Force,

(e) the State Emergency Service,

(f) the NSW Volunteer Rescue Association Inc,

(g) the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001 ,

(h) an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989 .

and

emergency service worker” includes an officer, employee or member of any of the following:

(a) the Ambulance Service of NSW,

(b) Fire and Rescue NSW,

(c) the NSW Rural Fire Service,

(d) the NSW Police Force,

(e) the State Emergency Service,

(f) the NSW Volunteer Rescue Association Inc,

(g) the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001 ,

(h) an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989 . (Regulation 5).

We are told the employee in question is a member of the NSW SES. The SES is made up of ‘the Commissioner, Deputy Commissioner and other staff of the Service, and the volunteer officers and volunteer members of all SES units’ (State Emergency Service Act 1989 (NSW) s 7). But not all members are operational and not all trained for all tasks. A person may be a volunteer member of an SES unit who staffs the communications room, or assists with administration, or is a flood boat operator but not trained in some other event.

Equally the emergency in question may be a fire, or a bomb threat, or a gas leak or a blackout or any manner of hazards which have nothing to do with the SES.

It seems that this company’s emergency plan is ‘in the event of an emergency we’ll ask the employee who is a member of the SES what to do even though we don’t know what his or her capacities are, what his or her training is or what he or she might do and in doing so we’ll diminish our first aid staff by one’. When written like that the inappropriate nature of what is suggested is obvious.

Assuming the emergency in question is one for which the SES is the relevant combat agency it is the Commissioner who is to ‘have overall control of operations’ (State Emergency Service Act 1989 (NSW) s 20).   He or she will delegate that power through the chain of command to the relevant controller, in most cases the unit controller and they will respond.   In short the emergency service organization will be represented by the crew that turn up, in their truck, in uniform. If that were not the case then a member of the services who was at a shopping mall would somehow be ‘in command’ should an alarm go off.

In ‘a fairly large two-story office building in Sydney’ most emergencies are going to be the type that will be managed by the police or NSW Fire and Rescue so attempting to hand control to an SES volunteer who just happens to be there would be both dangerous and inappropriate.

At the recent AFAC (Australasian Fire and Emergency Services Authorities Council) conference in Adelaide there was a major fire in the Adelaide CBD and a hotel where a number of chief fire officers were staying. Those fire officers did not somehow magically have command and control responsibilities; the relevant fire service was the duty crew from the South Australian Metropolitan Fire Service.   Granted they were from different states but the principle is the same, the staff member who happens to be a volunteer may be from a different agency to the combat agency and on the occasion of the incident he or she is not then representing the SES.

Of course a person might be representing the SES. Assume for example there is a member of the SES, in uniform, who hears an alarm and sees people evacuating. That member may approach the Chief Warden and ask ‘can I help?’ but that would still not make him or her ‘the emergency service’ as he or she is still not there as the Commissioner’s delegate.   Even if he or she was then his power may be to ‘direct’ the evacuation of the building (s 22) in which case he or she would expect the Chief Warden to see to carrying out that direction.

Finally SES members are volunteers. They can simply chose not to volunteer at a time in question.

Let me now turn to the specific questions.

  • Does an employee of a company “automatically” become a “onsite emergency service” in the event of an emergency?

No, the suggestion is patently silly.   An employee of a company, at work, is an employee of the company. That they are a member of one of the emergency services is irrelevant. Particularly for volunteers their membership is part time so when they are at work they are not then the relevant ‘onsite emergency service’ and they will not carry the relevant Commissioner’s authority or delegation.

  • If there were a fatality during the emergency prior to the arrival of (for example) FRNSW, could that employee / volunteer be held liable if they either continued as a 1st aid officer and declined to take control of the site from the Chief Warden, or by counterpoint, took control of the site and ceased their duties as a 1st aid officer?

No, they would not be liable if they performed their duties as a first aid officer. They have no legal duty to take control of the site and no legal authority to do so.   Equally if the Chief Warden refused to do his or her job so the volunteer realizing that if he or she didn’t do something then no-one was going too they also wouldn’t be personally liable. In that situation they are still acting as an employee as their employer is the one insisting, in effect, that they act as Chief Warden. In either case the employer would be liable for failing to have an emergency plan that even began to look sensible. If I were that member I’d insist on getting the floor warden training and the allowance and being appointed Chief Warden as there is clearly no expectation the Chief Warden is going to do anything.

  • Can a volunteer member of any emergency service (SES, RFS, VRA etc) “switch hats” and take control of a site from their employers designated chief warden pending arrival of FRNSW/NSW Police/ASNSW, and what are potential legal repercussions of doing so?

No. The Commissioner’s have in place processes to respond units. Let’s assume that the emergency in question is a fire and Fire and Rescue NSW have been dispatched. The incident controller will be the brigade captain. An SES member has no particular authority and is not the SES Commissioner’s delegate.   If the Chief Warden simply refused to do anything on the basis that there was an emergency service member there the smartest thing to do would be to ‘direct’ the Chief Warden to do his or her job and the Chief Warden, being convinced that he or she has to follow the directions of the emergency services would presumably be goaded into action.

The legal consequences of having a policy to the effect that ‘overall control of the situation would be directly handed from the chief warden to an employee who is a volunteer member of NSWSES (who is a 1st aid officer, but not an emergency warden)’ is, in my view, that the company could be liable for a criminal offence under the Work Health and Safety Act 2011 (NSW); the officers of the company that allowed such a policy to stand could be personally liable (s 27) and the company would be liable in negligence if the poor volunteer, untrained as a warden, didn’t manage the site properly.