The valuable legal opinion below is courtesy of Michael Eburn, PhD and Barrister, from Australian Emergency Law
Today’s question arises from the fires currently burning in the Perth Hills.
My correspondent wants ‘some easy-to-understand advice about the employee protections provided for in the Emergency Management Act’. I have been provided with ‘…a copy of the Emergency Situation Declaration (due to expire or be renewed today)’.
My correspondent says, ‘from my layman’s reading of the Act, the employee protections don’t seem to be dependent on a declaration being made’. I am asked whether those protections ‘are always in place or only during a declaration’?
The declaration supplied to me is a declaration of an ‘emergency situation’ (Emergency Management Act 2005 (WA) s 50) by the delegate of the Fire and Emergency Services (FES) Commissioner. The FES Commissioner is the hazard management agency for fire (Emergency Management Act 2005 (WA) s 4). Whilst the declaration remains in place, authorised officers may exercise the emergency powers set out in Part 6, Division 1 (ss 65-72A) of the Emergency Management Act 2005.
The employment protection provisions are set out in Part 9 (ss 91-94) of the Act. The critical section is s 92 which says:
(1) For the purpose of calculating the entitlement of an employee to long service leave, sick leave, recreational leave or other benefits to which the employee is entitled, the continuity of service of the employee is to be taken not to have been broken only by the employee’s absence from the employment because the employee was carrying out an emergency management response.
(2) An employee who is absent from the employee’s employment because the employee is carrying out an emergency management response is entitled to be paid by the person’s employer remuneration for the period of the employee’s absence calculated at the employee’s ordinary rate of remuneration, determined in accordance with the regulations, on the time that the employee would ordinarily have worked had the employee worked his or her scheduled work time.
Section 93 adds further protection. It says:
(1) An employer must not victimise an employee of the employer for the reason that, or reasons that include the reason that, the employee was temporarily absent from employment because the employee was carrying out an emergency management response…
(3) An employer victimises an employee if the employer —
(a) dismisses the employee from employment with the employer; or
(b) alters the employee’s position in his or her employment with the employer, to the employee’s disadvantage; or
(c) refuses to promote or transfer the employee; or
(d) does not provide the entitlements referred to in section 92; or
(e) otherwise injures the employee in his or her employment with the employer.
The consequences of a breach of s 92 or 93 is that the offending party may be ordered to pay compensation to an affected worker. The maximum payment is, if the worker has been dismissed 6 months’ pay, and in any other case $5000. A court may also order that a worker is to be reinstated to their position. The court may impose a civil penalty, to be paid to the WA treasurer to a maximum of $50 000 (Emergency Management Act 2005 (WA) s 94).
Section 91 is a definitions section. Relevantly it says:
(a) an employee carries out an emergency management response if —
(i) the employee undertakes an activity that involves responding to an emergency; and
(ii) the employee carries out the activity on a voluntary basis; and
(iii) the employee is a member of, or has a member-like association with, an emergency management agency; and
(iv) the employee was requested by or on behalf of the emergency management agency to carry out the activity or no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made;
(b) an employee does not carry out an emergency management response if the activity involves prevention of, preparedness for, or recovery from, an emergency.
An emergency is ‘the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response’ (s 3). An ‘emergency management agency’ is either ‘a hazard management agency, a combat agency or a support organisation’ (s 3).
As noted, the FES Commissioner is the ‘hazard management agency’ for fire. Both the Department of Fire and Emergency Services (DFES) and each local government is a combat agency ‘responsible for the emergency management activity of fire suppression’ (Emergency Management Regulations 2006 (WA) rr 30A and 31).
Bushfire brigades are operated either by DFES or local governments (Bushfires Act 1954 (WA) and Fire and Emergency Services Act 1998 (WA)). It follows that any volunteer with an established WA bushfire brigade is a volunteer for a combat agency as required by s 92(a)(iii), above.
The combined effect of s 92(a)(i) and 92(b) is that the provisions only apply to the ‘response’ phase of an emergency, not the Prevention of, Preparation for or Recovery from the emergency. Given the current state of the fires that Western Australia is still in the ‘response’ phase is beyond doubt.
The power to declare an ‘emergency situation’ is found in Part 4 of the Act. The consequences of that declaration are found in Part 6. The employment protection provisions are in Part 9. There is no direct link between Part 9 and either Part 4 or Part 6.
None of the provisions in Part 9, including the definition of ‘emergency response’ refer to or require a declaration of an ‘emergency situation’ (s 50) or a declared ‘state of emergency’ (s 56).
An ‘emergency management response’ requires that the volunteer is responding to an emergency that is ‘the occurrence or imminent occurrence of a hazard which is of such a nature or magnitude that it requires a significant and coordinated response’. It does not have to be a ‘declared emergency situation’ to constitute an emergency. The value of making a declaration under s 50 is that it triggers the emergency powers set out in Part 6, not that it triggers the employment protection provisions.
What follows is that the employment protection provisions apply to all volunteer firefighters in WA whenever they are responding to a fire – they are ‘always in place’ and do not depend on a declaration under either s 50 (‘emergency situation’) or s 56 (‘state of emergency’).