A volunteer with the NSW SES

… recently noted that a new Code of Conduct and Ethics policy document had been released and published in the services policy index, it appears the revision was signed off by the SES Chief of Staff, as far as I can tell this document is now the official latest version. The new policy appears to contain quite significant changes and I would consider it a cornerstone document relating to volunteers’ relationship with the NSW State Emergency Service.

After speaking to various volunteers and staff it is clear that many were not aware that a new Code of Conduct was in the works, nor were any volunteers given notice that the new code of conduct had been released. The service still has not provided any formal communication indicating that there is a new Code of Conduct policy released. Included in the appendices of the code of conduct is a signature page that is to be signed by members acknowledging they accept the code of conduct, this is usually only done once when a member first joins the service.

Our Zone commander forwarded an email to all Local/Unit commanders in my zone last night, I won’t share the email in its entirety but here is an excerpt,

Please note the revised Code of Conduct is now on the KDI. Volunteers and Staff will be advised via:-

    • Member Connect (bi-weekly news letter)
    • A message on the entry screen of each user’s device/computer outlining that the Code of Conduct has been revised, acknowledging that the user has read the revised Code and the user acknowledges they have read and understood the message.

We have been requested to communicate the revised version through our Unit/Local Commanders, ensuring it is communicated at all training nights.

Key things to note re the updated Code:-

    • The Code of Conduct aligns with the Public Service Commission’s Code of Ethics and Conduct for the NSW government sector. It is also consistent with the Department of Communities and Justice Code of Ethics and Conduct.
    • The major change to note is that the revised Code of Conduct incorporates the requirements of the Conflict of Interest Policy.

I note, 99% of SES volunteers do not have an SES computer or device.

From a legal standpoint, should all volunteers and staff be required to sign the updated code of conduct or is notification by official channels requesting each member to review the update policy in their own time sufficient? and if so, would simply sending an email to all members service address be sufficient in from a legal aspect for the service to assume that all members have been notified of the updated policy?

The answer depends on the status of the Code of Conduct. On one view it might be akin to a contract. A member offer to provides their service in consideration of the training and status they receive as a member of the SES and when they sign the code of conduct that is the terms of their engagement. If there is a new Code of Conduct they are only bound if they agree to the change of terms.

I do not, however think that analogy is correct. The nature of the relationship between volunteers and the SES does have an appearance of a contract and it is one where the parties are entering into a legal relationship but if it’s a contract much of it is unenforceable. An employment contract commits the employee to turn up to work and the employer to provide work but a volunteer is under no obligation to turn up. And it’s not clear what contractual obligations (as opposed to say obligations that arise under statute law) the SES owes its members.

Even if we assume there is a contract between a volunteer and the SES it must stand to reason that the terms can change as they need to over time. If the terms were fixed at the time the member joined and signed the Code of Conduct that was current at that date, there would be different expectations on different members depending on when they joined.

The State Emergency Service is a statutory authority created by the State Emergency Service Act 1989 (NSW).  The Commissioner ‘is responsible for managing and controlling the activities of the State Emergency Service’ (s 11). There is no specific power to make standing orders or procedures (compare that with the Rural Fires Act 1997 (NSW) s 13). Section 18A says, however (emphasis added):

(3) Membership of an SES unit may be suspended at any time, but only for the purposes of conducting an investigation into:

(a) the member’s alleged offence against any law, or

(b) the member’s alleged contravention of, or failure to comply with, the procedures or instructions of the State Emergency Service…

(6) The procedures for:

(a) suspending or withdrawing membership of an SES unit, and

(b) appealing against the withdrawal of membership of an SES unit,

are to be as set out in the procedure manuals maintained by the State Emergency Service.

There is an implied power to write and promulgate procedures and instructions for the members of the Service.

Discussion

I would suggest that the Code of Conduct is an instruction from the SES as to what is expected from the members, rather than a contractual document. There has to be the capacity to vary it over time in order to keep the SES up-to-date with developments in the public sector and in the community broadly. If that is correct then from ‘a legal standpoint’ it would not be necessary to have every member sign the new version in order to be bound by it. But members cannot be bound by or disciplined for failing to observe a standard that they were not aware of.  Asking ‘volunteers and staff’ to ‘sign the updated code of conduct’ is not so much to bind them in a contractual sense but to make sure it is brought to their attention and is therefore evidence that they were aware of the terms should there be a later reason to subject the member to discipline. In that case the member cannot say ‘but I did not know this conduct was prohibited’. That is a different argument to ‘but I was not bound to honour this document, even though I knew of its terms, because I did not sign it’.

I don’t think ‘simply sending an email to all members service address’ would be sufficient ‘from a legal aspect for the service to assume that all members have been notified of the updated policy’ but I don’t think that’s how the issue would play out. If a member was subject to discipline about the matter the question would be was ‘sending an email to all members service address sufficient to bring the matter to the attention of this member?’ And that would then allow discussion of that member’s particular circumstances and how communication is made to that member.

Clearly there is more to it than just an email. As the zone commander’s email, quoted above, says ‘Volunteers and Staff will be advised via:- Member Connect (bi-weekly news letter); A message on the entry screen of each user’s device/computer…’ and through messages from .’Unit / Local Commanders… at all training nights.’

Conclusion

I don’t think the Code of Conduct is truly contractual in nature, such that a signature by a member is proof that they agree to serve on the terms set out in the document. It is more in the nature of ‘the procedures or instructions of the State Emergency Service’.

The SES no doubt wants to ensure members are aware of the Code of Conduct as it wants members to comply with its standards. On a less principled level it also wants to make sure that at any disciplinary hearing it can make the argument that the member either knew, or should have known, of the terms of the Code of Conduct rather than the member expressly agreed to be bound by it. The value of the member’s signature is that it is evidence that the document was brought to their attention rather than an express agreement to be bound. Other evidence may also demonstrate that the matter was brought to the attention of members such as the use of broadcast emails and announcements at training nights but whether they reached a particular member can be contested. The member’s signature cannot.