DFES preamble
Volunteer Brigades, Groups and Units (BGUs) operate under different legislation depending on the emergency service. The existing emergency services legislation deals with the Volunteer BGUs differently and sets out separate guidelines for their establishment and ongoing operation and administration.
The majority of State Emergency Service (SES) units, Volunteer Marine Rescue Service (VMRS) groups and Fire and Emergency Service (FES) Units established under the Fire and Emergency Services Act 1998 (Fire and Emergency Services Act) are incorporated associations, and are administered in accordance with their individual constitutions. There is no obligation to follow a model constitution or address any specific matters in their constitutions other than those required under the Associations Incorporation Act 1987.
Volunteer Fire and Rescue Service (VFRS) brigades established under the Fire Brigades Act 1942 (Fire Brigades Act) have comprehensive administration provisions contained in the Fire Brigades Regulations 1943 (Fire Brigades Regulations) including the setting out of specified officers.
The Bush Fires Act 1954 (Bush Fires Act) provides for the establishment of Bush Fire Brigades (BFBs) with specified officers and the enactment of local government by-laws to govern the administration of BFBs.
The development of a single emergency services Act presents an opportunity to review provisions relating to Volunteer BGUs, in full recognition of their valuable contribution.
4.1 VOLUNTEER CHARTER
The 2011 Community Development and Justice Standing Committee (CDJSC) report Western Australia’s Readiness For The 2011-12 Bushfire Season recommended the development of a Volunteer Charter that ‘recognises the important work undertaken by the State’s volunteer bushfire and emergency services personnel’[1].
The Victorian Country Fire Authority (CFA) Volunteer Charter is enshrined in legislation through s 6G to 6H of the Country Fire Authority Act 1958 (Vic). The legislative amendments recognised the role of volunteers, gave legislative backing to the Volunteer Charter and required the CFA to recognise the Volunteer Charter.
In Western Australia, following strong representations from the W.A. Volunteer Fire and Rescue Services Association (Inc.) a Volunteer Charter was signed on 23 November 2013 by the Association with the support of the Minister for Emergency Services and FES Commissioner.
DFES PREFERRED OPTION
4.1.1 PREFERRED OPTION: Recognise a single Volunteer Charter in the new emergency services Act
AVBFB PREFERRED OPTION
4.1.2 Recognise individual Volunteer Charters for each volunteer service in the new emergency services Act
AVBFB comments:
The Association agrees with the recommendation of the CDJSC to enshrine a Volunteer Charter in proposed future legislation to recognise the important work undertaken by the State’s emergency service volunteers.
However, it is the view of the AVBFB that any such Charter must specifically recognise the work of each distinct service in order to achieve the best outcome for the community at large.
OTHER OPTIONS NOT SUPPORTED
4.1.3 Do not include reference to a Volunteer Charter in the new emergency services Act
4.2 SEPARATION OF VOLUNTEER EMERGENCY SERVICES
The emergency services legislation currently provides for five distinct volunteer emergency services (BFBs, VFRS Brigades, SES Units, VMRS Groups and FES Units [1]) each with their own distinct identity and legislative character.
DFES PREFERRED OPTION; AVBFB PREFERRED OPTION
4.2.1 Retain the current legislative separation of the volunteer emergency services
AVBFB comments:
Because the Volunteer Bush Fire Brigade service is many times larger than any other and founded in a very unique manner, the Association supports the legislative separation of the Volunteer Bush Fire Brigade Service from all others, irrespective of any agreement/consideration among other volunteer services to the contrary.
Notwithstanding the AVBFB’s support for this option, it is strongly recommended that a thorough investigation and analysis of the structure of legislation in other Australian jurisdictions be completed and consulted before finalising any conceptual position on this point.
OTHER OPTIONS NOT SUPPORTED
4.2.2 Establish a single volunteer service under the responsibility and management of the FES Commissioner
4.3 ADMINISTRATION OF VOLUNTEER BGUS
Currently the administration arrangements for Volunteer BGUs are diverse for different services depending on the governing legislation. Stakeholders raised concerns with the current disparity between different volunteer emergency services.
DFES PREFERRED OPTION
4.3.1 Provide a set of minimum administrative requirements, that apply to all BGUs
AVBFB PREFERRED OPTION
4.3.2 Maintain separate arrangements for different BGUs
AVBFB comments:
Central to the morale, and therefore functionality, of Volunteer Bush Fire Brigades is the ‘local’ nature of their operations.
Beside many being bound by the Associations Incorporated Act to operate under the rules of a constitution that is developed and endorsed by the members of each individual Brigade, it is the view of the AVBFB that any attempt to impose a universal set of administrative requirements would not only create legal challenges and become a significant enforcement burden for the government, it is unlikely to improve the relationship between DFES and the tens of thousands of volunteers who choose to deliver its services.
In good faith, the Association re-emphasises the need for government to actively reconsider any action that may add to the perception of a “one size fits all” approach being the preferred option. Indeed, while the AVBFB sees value in DFES developing and offering a set of standards that volunteer BGUs may adopt and/or edit for local use, its deep understanding of the nature of voluntarism prohibits the support of any such standards being required of all.
4.4 CONDUCT AND DISCIPLINE
The emergency services Acts, and associated regulations, currently provide limited direction on matters of conduct and discipline in respect of Volunteer BGU members. To a certain extent BGUs are responsible for disciplining their own members for any breach of conduct. Some BGUs have formal processes in place in the form of a constitution, BGU rules or policies. While this approach may have been appropriate at a time when BGUs were much more isolated, the state wide funding and interoperability requirements of today’s emergency services necessitates further consideration of this issue.
DFES PREFERRED OPTION
4.4.1 Discipline and conduct matters handled at a BGU level in line with minimum specified requirements with some matters to be escalated to the FES Commissioner
AVBFB PREFERRED OPTION
4.4.2 Discipline and conduct handled at a BGU level
AVBFB comments:
The Association re-commits to its advocacy in the strongest possible terms for the recognition and appreciation of the unique cultures specific to volunteer bush fire brigades.
It is critical that when broaching issues of management and control, the language chosen reflects an understanding that volunteers are not paid and therefore not able to be “disciplined” in the way a member of the career service cay be. The AVBFB recognises the need for some consistently applied minimum standards – particularly with regard to health and safety – across all services, but there must also be some flexibility so as not to jeopardise a relationship that is only essential for one of the two parties involved.
The Association accepts that there is a difficult balance required and strongly recommends this option as the most likely to achieve that.
OTHER OPTIONS NOT SUPPORTED
4.4.3 The FES Commissioner has responsibility for all conduct and discipline matters for Volunteer BGUs
4.5 SETTING MINIMUM TRAINING STANDARDS FOR VOLUNTEERS
The Fire Brigades Act s 26A(2)(h) provides the FES Commissioner with the power to establish facilities or courses of instruction to provide training to any person not employed by DFES, in the skills required. However, there is no provision that supports this power, whereby the FES Commissioner may set minimum training standards for emergency services volunteers.
A key consideration for the development of minimum training standards is balancing the time commitments of individuals with the need for a safe and skilled volunteer service. Many stakeholders recognise the need for volunteer training, but were also adamant that it must not be a simple replication of the career Fire and Rescue Service training program. The training developed would also need to be, wherever possible, specific to the needs of each volunteer service.
DFES PREFERRED OPTION
4.5.1 Legislation sets out that the FES Commissioner has the power to set training standards and those standards are set out in policy
AVBFB PREFERRED OPTION
4.5.3 Legislation to remain silent on volunteer training standards
AVBFB comments:
The Association strongly supports the development and provision of ongoing training for volunteer emergency services personnel. However, because of the diversity and often changing nature of the emergency services, insurance and training environments, the AVBFB strongly opposes any prescriptive legislation with regard to training.
It is therefore preferable that all training matters be managed entirely through departmental policy rather than legislation to enable maximum flexibility and recognition of the diverse nature of the state’s largest emergency service.
OTHER OPTIONS NOT SUPPORTED
4.5.2 The regulations prescribe minimum training standards for Volunteer BGUs
4.6 GENERAL DIRECTION AND CONTROL OF BGU MEMBERS
Under s 31 of the Fire Brigades Act permanent and volunteer brigades and their officers and members fall under the immediate control of the FES Commissioner. Currently the FES Commissioner only has ‘general responsibility’ for SES units, VMRS groups and FES units under the Fire and Emergency Services Act.
DFES PREFERRED OPTION
4.6.1 Where DFES is responsible for managing BGUs, all members fall under the immediate order and control of the FES Commissioner
OTHER OPTIONS NOT SUPPORTED
4.6.2 The FES Commissioner continues to have ‘general responsibility’ for SES units, VMRS groups and FES units
AVBFB PREFERRED OPTION
Neither option presented was able to be supported
AVBFB comments:
As Volunteer Bush Fire Brigades were not mentioned, it was assumed that both options allowed for the status quo in regard to that service and as such the Association offers no comment.
It must be noted that if the omission of the VBFB was an oversight and the DFES preferred option is intended to apply to the VBFB service, the AVBFB has strong views and further consultation on this issue will be required.
4.7 EMPLOYMENT PROTECTION
There is no employment protection currently provided to volunteers within the Fire and Emergency Services Act, the Fire Brigades Act and the Bush Fires Act. Part 9 of the Emergency Management Act 2005 (Emergency Management Act) outlines employment protection for volunteers responding to emergency situations declared under that Act. Part 9 of the Emergency Management Act protects employment rights, including remuneration, as well as preventing victimisation of the volunteer. A number of stakeholders raised concerns in relation to providing volunteers with broader employment protections to support and promote voluntarism.
A similar model as the one which applies to Defence Reservists was suggested as an option. The entitlements for employees and employers associated with participation in Defence Reserve activities is set out in Commonwealth Legislation, the Defence Reserve Service (Protection) Act 2001. Implementing such arrangements for emergency service volunteers may require legislation at a Commonwealth level to ensure it was binding on all employers.
DFES has considered whether some or all of the employment protection provisions contained in part 9 of the Emergency Management Act should be applied to volunteers that perform functions in terms of the new emergency services legislation.
DFES PREFERRED OPTION
4.7.1 No employment protection for volunteers provided in the new emergency services Act
AVBFB PREFERRED OPTION
4.7.2 Provide volunteers with employment protection in respect to all response activities authorised in the Act, excluding remuneration
AVBFB comments:
This option is supported. While the Association does not seek remuneration for volunteers, it does encourage further discussion regarding the potential for employers to be partially remunerated for lost staff time as a result of activities required of volunteer bush fire brigade members.
OTHER OPTIONS NOT SUPPORTED
4.7.3 Provide volunteers with employment protection for response activities, in the same way as contained in the Emergency Management Act, including remuneration
4.7.4 Provide for additional leave for emergency service volunteers
4.8 RESPONSIBILITY FOR STATE EMERGENCY SERVICES
In 2002 the SES, along with VMR and multi-purpose FES units were brought under the emergency services legislation, primarily to afford them the protection provided by liability provisions. This brought the SES in Western Australia in line with the arrangement for the SES in other Australian States in that they are included in emergency services legislation, although the structure across other States is diverse. A number of SES volunteers have suggested that the SES should be regarded as a separate, standalone volunteer service as is the case in Victoria.
In Victoria the SES operates as a separate body, the Victoria State Emergency Service (SES) Authority. This Authority manages 3 317 volunteers who during the 2012-2013 financial year responded to over 18 000 requests for assistance. The Authority employs 48 permanent operational staff and 128 permanent support staff. The total expenses of the Authority for the year ending 30 June 2014 was $50 million against an income, including grants and fees for service, of $57 million [1].
In South Australia, the Fire and Emergency Services Act 2005 (SA) brought the SES, Metropolitan Fire Service and Country Fire Service under a single Act. However, it retained the operational autonomy of the three services.
DFES PREFERRED OPTION
4.8.1 Retain the SES as a volunteer emergency service under DFES
OTHER OPTIONS NOT SUPPORTED
4.8.2 Create the SES as a separate organisation
4.8.3 The SES remain within DFES with a dedicated Deputy Commissioner
AVBFB comments:
While this topic is considered outside the remit of the Association, it is noted that the AVBFB supports “4.2.1 Retain the current legislative separation of the volunteer emergency services” which could be seen as indirect support for 4.8.1.
4.9 RESPONSIBILITY FOR BUSH FIRE BRIGADES
Currently the power to establish, maintain and disband BFBs lies with local government in accordance with the Bush Fires Act.
The Community Development and Justice Standing Committee (CDJSC) Inquiry into Fire and Emergency Services Legislation 2006 (CDJSC inquiry) recommendations 55 and 56 stated that:
(55) The emergency services legislation is to provide for FESA [DFES] and local government to enter into an agreement for the purpose of local government transferring the following responsibilities to FESA [DFES] on a permanent basis:
– emergency incident control;
– Bushfire Brigade operations and administration; and
– the determination and administration of the ESL, in relation to the capital and recurring costs associated with the Bushfire Brigades [1].
(56) Such an agreement is only entered into if both FESA [DFES] and the local government agree to terms and conditions [2].
As part of the Review DFES surveyed 140 local governments to determine interest in any change to the current arrangements for BFBs. A total of 121 local governments responded[3] and 53 indicated that they would consider handing over responsibility for their BFB(s), or be willing to explore it further, if the option was made available in legislation. Many of the preliminary responses, both in support of and in opposition to this option, stated that further consideration would be contingent on the details of the model proposed.
For the purposes of the options discussed in this chapter ‘responsibility’ can be taken to include:
- Administration and Management;
- Command and Control;
- Training;
- Equipment; and
- Capital Funding Program (e.g. fleet, equipment and communications).
DFES PREFERRED OPTION
4.9.1 Local government may, by agreement with DFES, hand over responsibility for a BFB to DFES
AVBFB PREFERRED OPTION (Modified)
4.9.6 Local government to retain responsibility for BFBs (without the option to transfer)
NOTE: This option is supported only with the removal of the text in brackets
AVBFB comments:
Central to the morale, and therefore functionality, of Volunteer Bush Fire Brigades is the ‘local’ nature of their operations.
This modified option is considered the most likely to formally recognise that the state government understands and supports the continuation of local control and management of the community of volunteers who provide the local response while not limiting the capacity of Local Governments to make alternative arrangements if it so wishes.
Also, it is noted that the DFES concept paper indicates the Department would require at least $23 million on top of the transfer of the current allocation of ESL funding received by local governments in order to continue the service currently being provided.
OTHER OPTIONS NOT SUPPORTED
4.9.2 DFES may take responsibility for a BFB under certain circumstances without agreement from local government
4.9.3 The FES Commissioner may establish (or disband) a BFB
4.9.4 Local government cannot establish (or disband) a BFB without the approval of the FES Commissioner
4.9.5 DFES to take responsibility for all BFBs
NON-LEGISLATIVE ISSUES
AVBFB comments:
The AVBFB commends the author of the concept paper for observing non-legislative issues raised by stakeholders during consultation and notes that all such issues fall outside the scope of the “Concept Paper: Review of Emergency Services Acts”.
The Association considers some of these items to be extremely important and therefore wishes to put on the record that the lack of comment in this submission does not imply support or otherwise for any of the issues published under the heading of “non-legislative issues” in this or other chapters.
Further, the AVBFB respectfully but strongly urges the government to explicitly seek comment from the Association and other stakeholders before seeking to address any of the issues identified as not within the scope of this paper.