Victoria has not joined the other states in implementing the model Work Health and Safety Act. In Victoria the relevant Act is the Occupational Health and Safety Act 2004 (Vic). Regulations made under that Act, in particular the Occupational Health and Safety Regulations 2007 (Vic) make special provisions for emergency service employees. The current regulation (r 1.1.5) defines an ‘emergency service’ as:
(a) the Country Fire Authority; or
(b) the Metropolitan Fire and Emergency Services Board; or
(c) the Metropolitan Ambulance Service; or
(d) Rural Ambulance Victoria; or
(e) the Victoria State Emergency Service Authority; or
(f) Victoria Police;
An “emergency service employee” is (emphasis added):
(a) an officer or member of a metropolitan fire brigade; or
(b) an officer or member of an urban fire brigade or rural fire brigade within the meaning of the Country Fire Authority Act 1958 ; or
(c) an employee of the Metropolitan Ambulance Service; or
(d) an employee of Rural Ambulance Victoria; or
(e) a member of the Victoria State Emergency Service; or
(f) an officer or other member of Victoria Police—
but does not include a volunteer;
An employer must, among other things,
- ensure that ‘a fixed or portable ladder used … to control the risk of a fall — (a) is fit for the purpose; and (b) is appropriate for the duration of the task; and (c) is set up in a correct manner’ (r 3.3.5);
- If the employer uses ‘administrative control … to control the risk of a fall, the employer must, before the task is undertaken, record— (a) a description of the administrative control used; and (b) a description of the task to which the administrative control relates’ (r 3.3.6); and
- ‘ensure that any plant used to control a risk of a fall is— (a) designed and constructed for the task or range of tasks to be undertaken; and (b) designed and constructed in such a way as to enable its safe use in the physical surroundings in which it is to be used and the conditions during which it is to be used’ (r 3.3.7).
Where the employee is an emergency service employee, these obligations are modified. The employers obligation is not to ‘ensure’ those things, but to ensure ‘so far as is reasonably practicable’ that those things are done (r 3.3.2). This provision must be intended to allow flexibility even if it does reduce the standard of care owed to emergency service employees. It does mean that an emergency service employee could use plant or a ladder in a way that is not intended by the manufacturer if that adaptation will assist in the rescue or provision of other emergency services.
When it comes to working in a confined space there are a number of obligations upon an employer (see Part 3.4). The principal obligation is to ‘identify all hazards to health or safety associated with work in a confined space’ (r 3.4.6) and to ‘ensure that any risk associated with work in a confined space is eliminated so far as is reasonably practicable’ (r 3.4.7). Further an ‘employer must ensure that an employee does not enter a confined space unless the employer has issued a confined space entry permit …’ (r 3.4.14). None of these obligations apply where the relevant employee is an emergency service employee undertaking a rescue from or providing first aid in a confined space (r 3.4.1).
A correspondent from Victoria has written regarding proposed amendments to the regulations. I am told that there is a proposal to amend the definition of emergency service employee. I’m told that the draft regulations will say (emphasis added):
Emergency service employee means any of the following, other than a volunteer—
(a) an officer or member of a metropolitan fire brigade; or
(b) an officer or member of an urban fire brigade or rural fire brigade within the meaning of the Country Fire Authority Act 1958; or
(c) an employee of Ambulance Service—Victoria; or
(d) a member of the Victoria State Emergency Service; or
(e) a police officer;
My correspondent says:
Reading the draft regulations with a few other volunteer firefighters has raised a couple of questions. I am hoping that you may be able to enlighten me on them.
- Do these two definitions effectively mean the same thing and the draft regulations are just worded more explicitly?
- CFA have no exemptions from the regulations regarding prevention of falls or confined space when it is a volunteer member performing the rescue or emergency action. Example: A volunteer would be required to be issued with a Confined Space Entry Permit prior to being able to carry out a rescue from a confined space.
- As volunteers are not “employees”, the regulations do not apply. However section 23 of the OHS Act would apply that the employer is to ensure so far as reasonably practicable that persons other than employees are not exposed to risks to their health or safety.
As the table below shows, the definitions are the same.
|Current regulation||Proposed regulation|
|“emergency service employee” means—||Emergency service employee means any of the following, other than a volunteer——|
|(a) an officer or member of a metropolitan fire brigade; or||(a) an officer or member of a metropolitan fire brigade; or|
|(b) an officer or member of an urban fire brigade or rural fire brigade within the meaning of the Country Fire Authority Act 1958 ; or||(b) an officer or member of an urban fire brigade or rural fire brigade within the meaning of the Country Fire Authority Act 1958; or|
|(c) an employee of the Metropolitan Ambulance Service; or||(c) an employee of Ambulance Service—Victoria|
|(d) an employee of Rural Ambulance Victoria; or||(c) an employee of Ambulance Service—Victoria|
|(e) a member of the Victoria State Emergency Service; or||(d) a member of the Victoria State Emergency Service; or|
|(f) an officer or other member of Victoria Police—||(e) a police officer;
|but does not include a volunteer;|
The only substantive change is to delete the reference to the Metropolitan Ambulance Service and Rural Ambulance Victoria and replace those references with a reference to Ambulance Service—Victoria. Neither definition includes a volunteer member of any of the emergency services.
So the answer to question 1 is ‘the definitions mean the same thing’.
Questions 2 and 3 can be merged. If Victoria had adopted the National Work Health and Safety Scheme the person conducting a business or undertaking (a PCBU) would owe a duty to all workers, which would include volunteers. The Victorian Act refers to employers and employees and that is reflected in the specific clause that says volunteers are not emergency service employees.
It follows that the exemptions provided for in regulations 3.3.2 and 3.4.1 are relevant where the emergency service personnel are volunteers, not employees. But as my correspondent has noted, none of the obligations in the regulations apply in that case – a volunteer is not an employee so the obligations upon an employer, vis-à-vis its employees do not apply.
Again, as my correspondent has noted, the Occupational Health and Safety Act 2004 (Vic) s 23 says:
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
‘Persons other than employees’ would include volunteers. Although the regulations don’t strictly apply, the most obvious way to ‘ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety’ would be by complying with the regulations. So if an employer wouldn’t send an employee into a confined space without various risk mitigations measures, they also shouldn’t send a volunteer. If, on the other hand, you’re an emergency service employer and you want to send a rescuer into a confined space without adequate breathing or rescue facilities, send an employee not a volunteer!
Victoria v NSW
Compare the Victorian provision (above) with the law in NSW. The Work Health and Safety Regulation 2011 (NSW) defines an emergency service worker as:
… 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.
The reference to a ‘member’ will include a volunteer.
There are exemptions when it comes to confined spaces. Regulations 67 and 68 do not apply ‘to the entry into a confined space by an emergency service worker if … the worker is: (a) rescuing a person from the space, or (b) providing first aid to a person in the space’ (r 63) Regulation 67 deals with a ‘Confined space entry permit’ and regulation 68 deals with warning signs with respect to a confined space. So an emergency worker doesn’t need a permit or to put up a sign, but the emergency service organisation still needs to ‘manage … risks to health and safety associated with a confined space … including risks associated with entering, working in, on or in the vicinity of the confined space …’ (r 66) and must provide ‘a system of work that includes: (a) continuous communication with the worker from outside the space, and (b) monitoring of conditions within the space by a standby person who is in the vicinity of the space and, if practicable, observing the work being carried out’ (r 69).
Victoria, on the other hand, exempts the employer from every obligation with respect to confined spaces including:
3.4.6. Hazard identification
3.4.7. Control of risk
3.4.8. Isolation of plant and services
3.4.10. Fire or explosion
3.4.11. Flammable gases or vapours
3.4.13. Review of risk control measures
3.4.14. Confined space entry permit
3.4.15. Employer to retain entry permits
3.4.16. Communication and initiation of emergency procedures
3.4.17. Procedures to indicate entry into confined space
3.4.18. Procedures to ensure exit from confined space
3.4.19. Record of exit from confined space
3.4.20. Emergency procedures
3.4.21. Emergency procedures—personal protective equipment
3.4.22. Emergency procedures—entry and exit for rescue
3.4.23. Emergency procedures—maintenance of plant
3.4.24. Information, instruction and training.
That is what the regulations say. Why any employer would want to send an employee into a confined space without first identifying, and then ‘so far as is reasonably practicable’ eliminating those risks is beyond me but I’ll leave it for others to consider whether having reduced OHS obligations for emergency service employees is sensible or reasonable.
The proposed changes to the definition of emergency service worker are not significant, they simply update the reference to Ambulance Victoria instead of referring to the Metropolitan Ambulance Service and Rural Ambulance Victoria. Neither the current or proposed definition includes volunteers.
The emergency services have a duty to take care to protect volunteers from risks to their health and safety by virtue of the Occupational Health and Safety Act 2004 (Vic) s 23. The specific obligations set out in the Occupational Health and Safety Regulations 2007 (Vic) regulations 3.3.5, 3.3.6 and 3.3.7 (with respect to fall prevention) and Part 3.4 (with respect to confined spaces) don’t apply where the responders are volunteers as volunteers are not employees. The obligations are modified, or don’t apply to employees, but virtue of specific rules in regulations 3.3.2 and 3.4.1. Even so the general duty imposed on any employer, ie the duty to ‘so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health’ (Occupational Health and Safety Act 2004 (Vic) s 21) will continue to apply.