In my post Death benefits are the same for employed and volunteer firefighters in NSW (September 30, 2022) I said:

The Workers Compensation Act 1987 (NSW) has been constantly amended but the amendments do not always apply to all workers. In particular police, firefighters and paramedics have been exempt from changes made in 2012 and 2015 (at least). That means there are multiple versions of the Act in force at the same time. Trying to chase down every amendment and which one applies (or doesn’t) is a convoluted and complex problem…

The 2015 changes to workers compensation law were designed to make workers compensation less generous – less compensatory – and harder to get. Due to political pressure, police, firefighters and paramedics were exempted from those changes but that has led to litigation where people want to argue that they are or should be classed as a police officer, firefighter or paramedic in order to get the more generous benefits.  See:

The issue arose again in the case of Birkinhead v NSW Rural Fire Service [2023] NSWPIC 419. Ms Birkenhead was employed by the Rural Fire Service as an operational officer. She began her RFS career as a volunteer firefighter in 2007 before being employed in 2017. Her employed role involved planning and managing the response to fires including significant deployments during the 2019-2020 summer bushfires. It was an essential requirement for her role that she hold the RFS qualification as an Advanced Firefighter ([38]). (She had also received training as crew leader community facilitator, planner and prescribed burn supervisor ([15])). 

The workers compensation insurer accepted that she suffered a psychological injury ‘caused by trauma associated with working in the office, including receiving 000 calls, heavy workload, dealing with the community affected by the fires and reviewing footage of an aircraft crash in which three of her colleagues were killed’ ([5]). After 26 weeks the insurer sought to decrease her weekly benefits in accordance with the 2012 amendments to workers compensation. The applicant argued that although she did not have to actually face the fire, she was a firefighter for the proposes of the Act and exempt from the effect of the 2012 changes.

The problem for the court (and earlier courts) was trying to define a person’s employment. In earlier cases involving paramedics their employment status as ‘’paramedics’ could readily be determined by the awards to which their employment were subject’ ([77]) but no statutory definition of ‘firefighter’ exists ([80]). The presiding member of the Personal Injuries Commission, Member Homan, said (at [83]-[84]:

In the absence of an award or applicable statutory definition, in order to determine whether a worker is designated as a ‘firefighter’ or falls within the class of workers who are firefighters it is necessary to determine whether the applicant’s activity or employment was to extinguish fires.

Even if I find the applicant is not designated or classified as a firefighter, the case law leaves open the possibility that she may yet have been a ‘firefighter’ at times when she was performing the duties of a ‘firefighter’.

Member Homan determined (at [89]) ‘that the applicant’s designated role was not that of a ‘firefighter’’; but that was not the end of the matter. Member Homan then proceeded to consider the actual tasks Ms Birkinhead was required to perform. The RFS (at [98]):

… defines firefighting duties as including an act “at or about the scene of or in connection with a fire which is necessary or, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire or any other way necessarily associated with the fire” (emphasis added). This included “…[o]ffice duty performed directly in connection with the organisation and direction of the firefighting effort”.

  At [100] Member Homan said:

The applicant’s evidence is that during the 2019/20 Northern and Southern NSW fires she was performing office-based duties including taking 000 calls, doing intelligence work, preparing situation reports and planning where the fires might spread. I find that this work was:

(a)    in connection with a fire;

(b)    directed towards or incidental to the control, suppression or spread of a fire, and

(c)    performed directly in connection with the organisation and direction of the firefighting effort.

And at [102]:

Although the applicant in this case was not physically at a fire front, she performed work in connection with a fire front which was directed towards or incidental to the control, suppression or spread of the fire. … I find that whilst performing these duties the applicant was a ‘firefighter’.

Discussion

I have not set out the details of Ms Birkinhead’s work but clearly she, like many others involved in the 2019-2020 fires was subject to immense workloads and traumatic experiences including receiving triple zero calls from people under immediate threat and perhaps from people who died. I am pleased she was found to be a firefighter and therefore eligible to more generous benefits.

But it may be prudent for governments to have a workers compensation scheme that actually compensates injured workers rather than the current scheme that is intended to be hard to access and to under-compensate injured workers.  Carve outs for workers who managed to bring political pressure (remember fire brigade vehicles blockading outside state parliament – ‘On strike: In Australia, New South Wales firefighters & medic refused to respond for five hours. Fire trucks massed at State Parliament’ STATter 911 (June 21, 2012)) may provide some relief for firefighters, paramedics and police but has led to this type of litigation and still leaves a complex and unfair workers compensation scheme.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.