A volunteer with the South Australian Country Fire Service has:
… a question in relation to the provision of a qualified first aider in a crew when responding to an incident. Some believe each crew should have at least one member appropriately trained in first aid to the appropriate level. This is not the case at the present time and will not be for the foreseeable future due to very limited resources being allocated to first aid training.
We have referred to the “First Aid in the Workplace Code of Practice” from Worksafe Australia (which we think applies to all workplaces including CFS incidents). Within the code is a requirement to determine the category of risk within the workplace and is quite prescriptive insofar as numbers of first aiders, access of workers to first aid and the equipment to be provided.
The Code also requires consultation between the workers (volunteer CFS personnel in this case) and the “Person Conducting the Business or Undertaking”, in this case the CFS
Our questions are;
- Does the Safework Australia “First aid in the Workplace Code of Practice” apply to CFS operations? Is it mandatory (ie is the law being broken if we do not comply with the code) or is it a simply a roadmap of good practice which can be moulded to fit an organisations resources and culture at a particular time? If the law is being broken, by whom? The Crew Leader?, Brigade Captain? ChiefOfficer?
- Assuming it is mandatory, the code calls for consultation between the management and the workers to determine requirements. If you were “Management” hauled before an Inquiry or Court, what would be expected of you to show you had in fact complied with the code in all respects, including consultation
- So, what does the Law say in regard to first aid provision within CFS crews?
Before we can answer the questions about the Code of Practice, we need to start with the legislation. As noted in other posts, there is meant to be a nationally consistent scheme of work health and safety (WHS) laws (but like all good national schemes, it’s not quite national – Victoria and Western Australia have still not come on board! See http://www.safeworkaustralia.gov.au/sites/swa/model-whs-laws/pages/jurisdictional-progress-whs-laws).
The relevant law in South Australia is the Work Health and Safety Act 2012 (SA). As my correspondent has noted, under the Act the term ‘worker’ includes a volunteer (s 7(1)) and the person with the principal duty to ensure health and safety is the ‘person conducting a business or undertaking’ (a PCBU), in this case the CFS. Section 19 says:
A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
What is ‘reasonably practicable’ requires a risk assessment. When identifying the response to any identified risk, the PCBU must take into account and weigh up all relevant matters including (s 18):
(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.
When it comes to assessing the workplace risks and determining what are the reasonably practical responses to those risks, the PCBU must consult with its workers (Division 2). Consultation can occur in numerous ways (for an interesting segue, see RFS Volunteer Exercising Rights as a ‘Worker’ (August 27, 2016)).
With respect to first aid, the Work Health and Safety Regulations 2012 (SA) r 42 says:
(1) A person conducting a business or undertaking at a workplace must ensure—
(a) the provision of first aid equipment for the workplace; and
(b) that each worker at the workplace has access to the equipment; and
(c) access to facilities for the administration of first aid.
(2) 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.
(3) For the purposes of this regulation, the person conducting the business or undertaking must have regard to all relevant matters, including the following:
(a) the nature of the work being carried out at the workplace;
(b) the nature of the hazards at the workplace;
(c) the size and location of the workplace;
(d) the number and composition of the workers and other persons at the workplace.
The first thing to note here is that the legislation is NOT ‘quite prescriptive’ with respect to any mathematical formula. Older legislation used to have prescriptions about how many first aiders were required for the number of employees, the size and contents of first aid kits and the like. Modern WHS legislation is much less prescriptive leaving it to the PCBU to determine what is required given the risks in the particular workplace. This imposes a greater burden on the PCBU as they need to show that they have actually considered the risk and come up with a ‘reasonably practical’ response to that risk – they cannot simply point to the first aiders and say ‘we’ve complied’. It does mean however, that if there is a disagreement between the PCBU and the relevant inspector, it may be up to a judge to determine whether the PCBU did everything that was ‘reasonably practicable’.
To return to first aid the effect of regulation 42 is that a PCBU must ensure that first aid is available to the workers, but exactly how that’s done – what is an ‘adequate’ number of first aiders? Do the first aiders have to be ‘trained to administer first aid at the workplace’ (eg other RFS volunteers) or ‘other persons who have been trained to administer first aid’ (eg a contracted service)? These are matters for the PCBU to determine taking into account the factors listed in r 42(3) and determined in consultation with the workers.
With respect to the Code of Practice, the ‘Minister may approve a code of practice for the purposes of this Act and may vary or revoke an approved code of practice’ (Work Health and Safety Act 2012 (SA) s 274(1)). A Code of Practice is not itself ‘binding’ but ‘is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with’ (s 275(1)). Further s 275(4) says:
Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.
What that means is that if the matter were to come to court as a prosecution, a PCBU could point to compliance with a code of practice as evidence that they had indeed done everything ‘reasonably practicable’ but it’s not a complete defence if the inspector can show that the compliance failed to actually take into a real risk in the work place. Equally, given the nature of WHS regulation and the shift of responsibility to the PCBU, if the PCBU can show that they didn’t comply with the Code of Practice because, for example, it didn’t really fit their workplace or the risks or the workers had come up with a response to a risk that was a better fit and provided a higher standard of protection, then that is fine.
The website of SafeWorkSA says that Safe Work Australia’s ‘First Aid in The Workplace: Code of Practice’ (March 2015) is an approved Code of Practice for the South Australian legislation. The Code of Practice has to be consistent with the legislation, so it, like the legislation does not prescribe the number of first aiders for each 20 employees or the like. It says, on p 4:
First aid requirements will vary from one workplace to the next, depending on the nature of the work, the type of hazards, the workplace size and location, as well as the number of people at the workplace. These factors must be taken into account when deciding what first aid arrangements need to be provided.
So now I can turn to the questions:
- Does the SafeWork Australia “First aid in the Workplace Code of Practice” apply to CFS operations? Is it mandatory (ie is the law being broken if we do not comply with the code) or is it a simply a roadmap of good practice which can be moulded to fit an organisations resources and culture at a particular time? If the law is being broken, by whom? The Crew Leader?, Brigade Captain? ChiefOfficer?
Yes, the SafeWork Australia “First aid in the Workplace Code of Practice” does apply to CFS operations? It is not mandatory, compliance with it is evidence that the PCBU has meet the requirements of the Act but it is actually the Act and its regulations that contain the law. In the right circumstances, mere compliance with the Code of Practice may not be enough and equally, in the right circumstances, failure to comply may be ok if the PCBU can show that the alternative approach that they have adopted is as effective, or more effective, in addressing the risks as the Code. So at best non-compliance with the Code is evidence (not proof) of non-compliance with the Act and it shifts the burden to the PCBU to show that whatever else they did was sufficient in the circumstances. It is, if you like, ‘a roadmap of good practice which can be’ departed from if the PCBU can show good reasons for the departure and that the protection of workers is equal to or higher than expected by the Code of Practice.
- Assuming it is mandatory, the code calls for consultation between the management and the workers to determine requirements. If you were “Management” hauled before an Inquiry or Court, what would be expected of you to show you had in fact complied with the code in all respects, including consultation?
As noted, the Code is not mandatory, but the Act and its regulations are. And they require that the PCBU conduct a risk assessment and take steps that are reasonably practicable to reduce the risk. The factors that have to be taken into account are shown in s 18 and r 42.
If I were “Management” hauled before an Inquiry or Court, I would want to be able to show that the Service had seriously considered the sort of risks that firefighters will face and considered how that should be addressed. Merely asserting ‘it was too expensive’ won’t cut it, though cost is a relevant consideration after all the other factors have been assessed. It is not practicable to introduce a risk reduction measure that is ‘grossly disproportionate to the risk’ (see s 18(e)). So having a fully equipped and staffed intensive care ambulance turn out with each fire appliance may reduce the risk of death or long term disability for an injured firefighter, but it would no doubt be at a ‘grossly disproportionate’ cost.
- So, what does the Law say in regard to first aid provision within CFS crews?
The law says that the CFS should negotiate with its workers (including volunteers) to determine the sort of risks that they are going to face. I would suggest that it doesn’t take much imagination to think that firefighters face a significant risk of injury and that is why there is a need for training, equipment and PPE. As a fall back would be the need for first aid because fire fighters will get injured – walking on uneven surfaces to fight fires, issues ranging from muscle strain to cardiac arrest from exertion, the effects of heat and dehydration, and of course, burns. It is a function of the CFS ‘to provide efficient and responsive services in the country for the purpose of fighting fires, dealing with other emergencies or undertaking any rescue’ (Fire and Emergency Services Act 2009 (SA) s 59(1)(b)). Firefighters may also be first on scene to assist others who have been injured in a fire or other accident. They may be called upon to assist the other emergency services including SA Ambulance. Performing first aid for people other than fire fighters would seem a foreseeable part of the duties of a firefighter and there is a duty on the CFS to provide adequate training to its workers to do their job and to ensure that they do not pose a risk to others (s 19(2) and 19(3)(f)).
If the PCBU can show its undertaken the risk assessment, taking into account the nature of the work performed by CFS firefighters, the location of that work which, in SA can involve some very remote locations perhaps only supported by a volunteer ambulance service, and that the PCBU has, in consultation with the workers, determined what are ‘adequate’ provisions to ensure that all workers have access to trained first aiders and first aid equipment, then they will have complied with the law. If they haven’t done that sort of risk assessment then there is non-compliance.
Who would be in breach? Fundamentally the PCBU (which can include ‘the Crown’ (s 10)) so it can be the CFS. Further those involved with the management of the CFS could be liable if they have failed in their duties to manage the Service in accordance with the Act. An ‘officer’ must “exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation” (ss 27(1) and 27(5)(e)). An officer is not a person wearing rank on their shoulder, rather an officer is ‘A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Crown [or a public authority]’ (ss 247 and 252). In the context of the CFS officers could include the members of the Board of the Fire and Emergency Services Commission (ss 6 and 10), the Chief Executive (s 16), the Chief Officer of the CFS (s 61) and other officers appointed who can be said to be a decision maker affecting the ‘whole or substantial’ part of the CFS in regard to these issues. The personal criminal responsibility that can be attributed to ‘officers’ does not apply to volunteers (s 34(2)).
The law does not set out minimum first aid requirements and certainly does not say ‘each crew should have at least one member appropriately trained in first aid to the appropriate level’. Rather the law says the PCBU (the CFS) needs to have conducted a risk assessment to ensure that its workers, including volunteers, have access to ‘adequate’ first aid facilities at the workplace which includes the fireground. How they meet that obligation is a matter for the PCBU taking into account the risk to firefighters and others, the nature of the CFS work (which is inherently dangerous), the remote nature of much of the work etc.
The response to the risk might be a first aider on every appliance, a first aider in every group or task force, an agreement to have SA Ambulance or St John Ambulance (SA) turn out with a brigade, having a first aider at each staging post, having a dedicated rescue helicopter with paramedic crew on standby etc. I’m sure any meeting of fire fighters and first aiders could come up with a myriad of other suggestions some of which will be more, and others less, ‘practicable’.
What the CFS needs to be able to do, should the matter ever be tested, is point to a reasonable, evidence based decision that has been arrived at after appropriate consultation and which takes into account all the relevant risk factors. Evidence of compliance with the Code of Practice would give strong support to the claim that what has been done meets the requirements of the Act.