Birkinhead v NSW Rural Fire Service

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Birkinhead v NSW Rural Fire Service [2023] NSWPIC 419
APPLICANT:	Hannah Birkinhead
RESPONDENT:	NSW Rural Fire Service
Member:	Rachel Homan
DATE OF DECISION:	17 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation pursuant to section 37 as amended by the by the Workers Compensation Legislation Amendment Act 2012 in respect of a psychological injury; payments of weekly compensation already made on the basis that the applicant was an exempt worker; whether the applicant was a ‘firefighter’ for the purposes of clause 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987; consideration of Ware v NSW Rural Fire Service, New South Wales v Chapman-Davis, New South Wales v Stockwell (No.2); Held – applicant was not employed in a designated firefighter role but was performing the duties of a firefighter during active fires; the injury was received by the applicant as a ‘firefighter’; the applicant is an exempt worker; no order as to costs.
determinations made:	The Commission determines: 1. For the purposes of cl 25 of Part 19H of Sch 6 to the Workers Compensation Act 1987, the injury was received by the applicant as a firefighter. 2. The Commission declines to make the orders sought by the applicant. 3. No order as to costs.

STATEMENT OF REASONS

BACKGROUND

Ms Hannah Birkinhead (the applicant) was employed by NSW Rural Fire Service (the respondent) as an operational officer.
The applicant sustained a psychological injury arising out of or in the course of her employment as a result of a number of incidents that occurred during the 2019 and 2020 bushfire season.
Liability for the injury was accepted and payments of weekly compensation were made in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act) in force prior to the amendments made by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), on the basis that the applicant was a ‘firefighter’ and therefore exempt from the amendments pursuant to the transitional provision in cl 25 of Pt 19H of Sch 6 to the 1987 Act.
On 16 February 2023, the insurer wrote to the applicant indicating that as she was approaching 26 weeks of payments, her weekly compensation payment would be reduced to the current statutory rate (being less than 90% of her basic award rate).
The applicant’s solicitors wrote to the insurer on 4 April 2023 asserting that the applicant was employed in an office-based role at the RFS Fire Control Centre. The applicant had never been required, nor had she ever fought a fire in the course of her employment. The applicant’s injury was 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. It was claimed that the applicant was not a ‘firefighter’ and her weekly payments should be governed by the 1987 Act as amended by the 2012 amending Act and in force as at the date of injury.
On 24 April 2023, the insurer notified the applicant pursuant to ss 78 and 287A of the Workplace injury Management and Workers Compensation Act 1998 (the 1998 Act), that her claim to be a non-exempt worker was disputed.
The present proceedings were commenced in the Personal Injury Commission (the Commission) by lodgement of an Application to Resolve a Dispute on 9 May 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant is an exempt worker (firefighter) for the purposes of cl 25 of Pt 19H of Sch 6 to the 1987 Act;
(b) orders for payment of weekly compensation, and
(c) orders as to costs.
There is no dispute in these proceedings as to the applicant’s entitlement to weekly compensation generally or the extent of her incapacity resulting from injury.

PROCEDURE BEFORE THE COMMISSION

At a preliminary conference on 14 June 2023, directions were made for written submissions addressing the issues in dispute to be lodged in accordance with a timetable. The parties were advised of the Commission’s intention to determine the dispute on the papers at the conclusion of that timetable.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    written submissions lodged on behalf of the applicant on 6 July 2023;
(d)    written submissions lodged on behalf of the respondent on 19 July 2023, and
(e)    written submissions in reply lodged on behalf of the applicant on 27 July 2023.
Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant relies on written statements made by her on 26 August 2022 and 28 April 2023.
In her first statement, the applicant said she held a bachelor’s degree in community culture and environment. The applicant commenced employment with the respondent in 2017, having previously been a volunteer since 2007. The applicant had completed basic firefighter, advanced firefighter and crew leader training. The applicant had also received training as a community facilitator, planner and prescribed burn supervisor. Additionally, the applicant had completed courses in training and assessing and mental health first aid.
The applicant said her job as an operational officer centred around community safety including, hazard reduction planning, dealing with hazard complaints, community consultation and education.
The applicant described a number of incidents which had resulted in her suffering a psychological injury.
In August 2019, the applicant was based in Glen Innes as an operational officer when a class 3 (S44) fire requiring escalated resources broke out. The applicant was in the role of situations officer, local intelligence. This involved taking 000 calls in which the applicant had to gather information on what was happening whilst trying to reassure callers that help would be there as soon as resources were available. There were not enough trucks or crews to deal with what was happening.
The applicant described working eight months straight. The applicant worked five days on with one day off, then five days on with two days of in 12 hour shifts. The applicant said the number of hours she was working without a decent break while dealing with traumatic calls and events pushed her to the point that she became numb.
In November 2019, during the Kangawalla fire, the small remote community of Wytaliba came under direct attack. Most of the community homes, school and two residents were lost. The applicant had previously worked closely with members of this community on fire mitigation and fire safety training. The morning after the fire, the applicant conducted welfare checks on members and organised supplies. Emotions were raw and high, and the applicant had to listen to and support those who had quite literally lost everything.
The applicant was transferred to Cooma on 26 or 27 November 2019 in the same role and position. A week after arriving, the applicant was sent to assist with a S44 fire at Lake George for a week. The applicant then assisted at Shoalhaven before returning to another S44 fire in the Snowy-Monaro region. Fire surrounded all sides of the district and was destroying more property.
On 23 January 2020, a C-130 Hercules aircraft crashed whilst doing a drop on the Good Good fire. Three crew members were killed. It was the applicant’s job to gather visual and audio intelligence on the crash. The applicant was required to document what she saw and heard on a live stream video of the crash site. The applicant’s partner, a police officer, was first on the scene and she saw him arrive. The images of what was left of the wreckage were vivid and traumatic.
The applicant continued to work 12 hour shifts, five days on one day off, then five days on two days off, under major incident conditions until March 2020.
The applicant returned to work following a period of maternity leave in March 2022. The applicant was still required to deal with the effects of the 2019/20 fires, forcing her to revisit everything that had happened. The applicant sought psychological treatment before going off work on 29 July 2022. The applicant was diagnosed as suffering from post-traumatic stress disorder.
In her supplementary statement, the applicant said she had previously been a volunteer firefighter but when she commenced employment with the respondent was told she would not be involved in fighting fires. The applicant’s firefighter qualifications were obtained when she was a volunteer, well before she commenced her employment with the respondent.
The applicant said her role was almost completely office-based, working in front of a computer. The only significant duties undertaken outside of the office were related to planning back burning or inspecting a fire hazard. For example, the applicant would occasionally go out to look at a site before back burning commenced. The applicant would map out the area and prepare a plan which would go to somebody else to implement. The applicant would also go out in relation to a hazard complaint, for example, a paddock with overgrown scrub.
The applicant said that in relation to all of the incidents in her earlier statement, she was office-based, working in the relevant RFS Fire Control Centre.
During the fires in Glen Innes, the applicant’s role in the office involved taking 000 calls and doing intelligence work. As information with respect to the fires came into the Control Centre, the applicant would prepare situation reports on the computer. The fires were 50 to 100km away from the Control Centre in town. The applicant was also involved with planning where the fire might be going by reference to weather forecasts.
The applicant clarified that her role in relation to the Lake George fires involved the same administrative type work at the Lake George RFS Fire Control Centre in Queanbeyan. The applicant did not physically attend the Lake George fire.
In relation to the helicopter accident, the applicant worked in the Cooma RFS Fire Control Centre the whole time. The applicant’s duties involved receiving footage through live stream from a helicopter surveying the scene of the accident.
The applicant said her role as an Operational Officer Level 1 was similar to that of the worker in Favelle v NSW Rural Fire Service[1] (Favelle), who was an Operational Officer Level 3.
[1] [2023] NSWPIC 122.
The applicant’s role did not involve extinguishing fires nor was that a requirement of the applicant’s role. There was no circumstance in which the applicant would be called upon to actually fight a fire.

Respondent’s evidence

The applicant completed a ‘Report of Workplace Injury/Illness/Exposure’ form on 14 July 2022 in which she reported a psychological injury resulting from “bushfire operations” in the northern and southern fires of 2019/20.
A TMF Web Initial Injury Notification Form completed in respect of the injury indicated that the applicant’s main tasks were that of “operational officer”.
A policy document titled, “Policy P3.4.1 Workers Compensation and Injury Management for NSW RFS Employees”, stated at paragraph 3.25:
“When NSW RFS employees undertake firefighting activities, and their designated occupation is not that of a firefighter, they will however, be deemed a firefighter for workers compensation purposes only.
Firefighting duties can be defined as:
a. Any reasonable act or operation performed by a firefighter either within or outside normal working hours 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, and includes:
i. Travel to and from the fire whether by road, air or on foot, surveillance of a running fire, mop-up (including logistical support, e.g., meal delivery, fuel delivery, field based repairs on plant and equipment on an active fire ground);
ii. Aerial attack;
iii. Application of chemical fire retardants and foams;
iv. Office duty performed directly in connection with the organisation and direction of the firefighting effort.
b. Duties performed either within or outside normal working hours in connection with tasks necessary to prevent or reduce the risk of fire (including travel to and from the site at which the duties are to be performed), such duties being:
i. Hazard reduction including burning, felling trees, fire trail maintenance and the creation of fire barriers using machinery or hand tools, use of aircraft to drop incendiary devices; and
ii. Fire standby duty and fire detection (both fire tower operation and mobile fire patrol).
A list of NSW RFS firefighting roles is available on the Health, Safety and Welfare page of the Intranet.”
A document titled, “NSW RFS Firefighting Roles” annexed to the policy document included in a non-exhaustive list of roles designated as firefighting roles in accordance with P3.4.1:
“Certain staff of State Operations, including Supervisors and Officers of the Operations Customer Support Centre.”
A role description for the position of ‘Operational Officer (OPO) Level 1’, described the role as providing a broad range of services in a team environment for the better protection of the community from bush fires and other emergencies. The key accountabilities included using administrative and operational corporate systems to monitor and act on requests for specialist support; developing and implementing procedures and guidelines; responding to requests for support; and updating and maintaining corporate systems.
Essential requirements for the role included NSW RFS Advanced Firefighter (AF) certification or equivalent. During periods of heightened operational activity, the incumbent would be required to “support operational management activities consistent with their skills and background” and “may be required to participate on an after-hours and/or on call roster”.

Applicant’s submissions

The applicant relies on written submissions prepared by Mr Craig Tanner of counsel, dated 6 July 2023.
The applicant submitted that there was no dispute that she served the respondent in the role of operational officer and had the key accountabilities recorded in the role description attached to the Reply. None of the key accountabilities included the activity of extinguishing fires at a fire front. The applicant’s evidence that there would be no circumstance where she would be called upon to actually fight a fire was not disputed by the respondent. The position involved essentially administrative duties directed at promoting community safety and was almost completely office-based, working in front of a computer.
The trauma to which the applicant was exposed did not involve the performance of duties extinguishing fires at a fire front.
There was no evidentiary basis upon which the respondent could suggest that the applicant’s psychological injury was sustained in the performance of activities as a firefighter engaged in endeavouring to extinguish fires.
There was no evidentiary distinction from the matter of Favelle.
The applicant sought orders for payment of weekly benefits from 17 February 2023 to date and continuing pursuant to s 37 of the 1987 Act as amended and in force as at the date of injury.

Respondent’s submissions

The respondent relies on written submissions prepared by Mr David Baran of counsel, dated 19 July 2023.
The respondent submitted that the question of whether a worker was an exempt worker within the meaning of cl 25 of Pt 19H of Sch 6 to the 1987 Act was considered in the context of a paramedic by the Court of Appeal in New South Wales v Chapman-Davis[2] (Chapman-Davis). The respondent submitted that the same principles of construction applied in relation to firefighters. Whether or not the applicant was operational or not operational within the context of firefighting duties was irrelevant. The correct question was whether the applicant fell within the class of workers as a firefighter, irrespective of the actual tasks being performed at the time of injury. Particular attention was drawn to the comments of Gleeson JA at [74]:
“The better view is that whether a worker answers the statutory description in the exemption is determined by their designation or holding the status as a ‘police officer, paramedic or firefighter’ at the time of receipt of an injury, not by reference to the duties they are required to perform.”
[2] (2016) NSWCA 237.
The respondent also referred to the presidential decision in New South Wales v Stockwell (No.2)[3] (Stockwell No. 2) in which it was said the same approach was taken.
[3] [2016] NSWWCCPD 19.
The respondent submitted that the decision of Ware v Rural Fire Service[4] (Ware), which was applied in the arbitral decision of Favelle, was decided before the Court of Appeal’s decision in Chapman-Davis. The decisions in Chapman-Davis and Stockwell No. 2 were not referred to the member in Favelle and the decision in Favelle was contrary to authority.
[4] [2014] NSWWCCPD 33.
Notwithstanding the applicant’s trajectory from a firefighting role to a different role, her classification remained that of a firefighter, and it followed that she was an exempt worker.

Applicant’s submissions in reply

In written submissions in reply dated 27 July 2023, the applicant submitted that the facts in Chapman-Davis were distinguishable from the facts in the present matter. The applicant had never been employed as a ‘firefighter’ and had not at any time during the course of her employment come within the nominated class of firefighter. The applicant had been a volunteer firefighter prior to commencing employment with the respondent. At the time of the injury, the applicant was not a ‘firefighter’ undertaking non-operational work in the same sense as the worker in Chapman-Davis. The facts in Stockwell No. 2 were similarly distinguishable.
In circumstances where the role undertaken by the worker was not prescribed as in the case of a police officer under the Police Act 1990, an evaluation of the duties undertaken by the worker was appropriate and necessary.

FINDINGS AND REASONS

Relevant law

The provisions governing the payment of weekly compensation in the 1987 Act were significantly amended by the 2012 amending Act, commencing on 1 October 2012.
Certain workers are, however, exempt from the 2012 amendments. Relevantly, the transitional provision in cl 25 of Part 19H of Sch 6 to the 1987 Act provides:
“The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”
In a speech by Mr David Shoebridge, Greens member of the NSW Legislative Council, on 21
June 2012 in support of the motion to amend the proposed terms of cl 25 by adding “paramedics and firefighters” after “Police officers”, it was stated:
“These amendments will ensure that the protection from benefit cuts proposed by the Government to apply to police, Rural Fire Service, and State Emergency Service workers will also apply to those other, much-prized emergency personnel, paramedics, and firefighters. As the Government’s bill is currently drafted, police have their benefits protected, Rural Fire Service personnel and State Emergency Service personnel have their benefits protected, but the other emergency service personnel, the firefighters and the paramedics, who will be working side by side with Rural Fire Service and State Emergency Service personnel – all of whom will be going to the same bushfires, or the same road trauma incidents, or to fight the same fires and dealing with the same consequences of emergencies throughout our city, country and regional areas – will not.”

The protections afforded to “Rural Fire Service personnel” described in Mr Shoebridge’s speech are those provided by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (the Emergency Services Act). The Emergency Services Act applies in respect of injuries received by “fire fighters” arising out of or in the course of fighting a bushfire or a relevant journey to a bush fire. The definition of “firefighter” in s 5 of the Emergency Services Act refers to a captain, deputy captain or any member of a rural fire brigade, or the group captain or deputy group captain of any rural fire brigades; or other person who, without remuneration or reward, voluntarily and without obligation engages in fighting a bush fire. “Fighting” in relation to a bush fire is defined in the Emergency Services Act as:
“… any reasonable act or operation performed by a fire fighter at or about the scene of or in connection with a bush fire which is necessary for, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire, or in any other way necessarily associated with the fire.”
The term ‘firefighter’ is not defined in the 1987 Act.
In The Australian Workers Union, New South Wales v Office of Environment and Heritage[5] (AWU), proceedings were brought in the Industrial Relations Commission of New South Wales seeking declarations on behalf of employees of various state entities concerning their status as “firefighters” for the purpose of the 2012 amending Act. The declarations sought concerned employees who were required from time to time to undertake firefighting and fire related activities in circumstances where firefighting was not part of their core duties. Justice Boland determined that such employees were only “firefighters” for the purposes of cl 25 whilst they were performing firefighting duties. His Honour reasoned at [97]:
“There can be no doubt, for example, that a police officer designated as such under the Police Act 1990 or a firefighter who is a member of a fire brigade appointed under the Fire Brigades Act 1989 or a paramedic employed by the Ambulance Service of NSW, are covered by item 25. However, a firefighter in item 25 is not limited to a member of a fire brigade. The ordinary meaning of a firefighter is ‘Someone whose activity or employment is to extinguish fires, especially bushfires’: Macquarie Concise Dictionary (Third Edition). Employees who are the subject of the Unions’ applications in this matter who perform the work of a firefighter from time to time must come within the ordinary meaning of firefighter whilst they are undertaking the work of fighting fires; they are referred to and designated as ‘firefighters’ by their employer whilst in that role.”
[5] 2012] NSWIRComm 133.
In Ware, the worker was employed by the respondent as a mechanic working in a workshop in Katoomba. On rare occasions, he repaired firefighting equipment at the fire front of an active bushfire. The worker claimed lump sum compensation pursuant to s 66 of the 1987 Act due to a gradual process hearing loss. As the worker’s hearing loss did not exceed the 10% threshold for compensation under s 66 of the 1987 Act, as amended by the 2012 amending Act, he was not entitled to lump sum compensation unless he could establish that he was an exempt worker to whom the 2012 amendments did not apply.
Deputy President Roche found:
“… the legal meaning of firefighter corresponds with its normal grammatical (dictionary) meaning and there is nothing in the context, purpose or policy behind cl 25 that leads to a different conclusion. It follows that firefighter means ‘someone whose activity or employment is to extinguish fires, especially bushfires’. As Mr Ware was employed as a mechanic, not a firefighter, he is only a firefighter, for the purposes of cl 25, when he is engaged in providing support at the fire front during a fire.”
In so concluding, Roche DP considered a submission made on behalf of the worker that all those integral to the activity of fighting fires are “engaged in fire fighting and are fire fighters” and there was no warrant to limit the term ‘firefighter’ to people actually on the active fire ground directing the hose. The worker submitted that for every person at the fire front, it is necessary to have a support team performing essential tasks such as co-ordination, supply, transport and repair of equipment.
Roche DP responded:
“Such support personnel may well, depending on the circumstances, be firefighters during a fire. However, in the absence of a definition of firefighter, such as the definition of police officer in the Police Act, members of the support team, whose normal duties do not involve work at the fire front, cannot be regarded as firefighters while performing those duties when there is no fire.
To suggest that there is no warrant to limit the term firefighter to people actually on the active fire ground is to ignore the clear meaning of that term in circumstances where there is nothing in the context or policy of the legislation that justifies doing so.”
It was not suggested that the Emergency Services Act applied to the worker in Ware, however, referring to it, Roche DP commented:
“…to the extent there was an intention to have ‘equivalence’ between those covered by the Emergency Services Act and firefighters who are not so covered, it seems logical that the ‘equivalence’ be applied to workers who are actually engaged in fighting fires and not otherwise.”
This approach was said to be consistent with what was found in AWU.
In these proceedings, the respondent referred the Commission to a number of cases involving the question of whether a worker was a ‘paramedic’ for the purposes of cl 25.
In the Presidential decision of State of New South Wales v Stockwell[6] (Stockwell No. 1), the worker was employed by the Ambulance Service in an operations centre and did not attend emergency situations in person. Deputy President Roche commented:
“In the present case, if it is ultimately found that, at the time of the psychological injury, the appellant employed Mr Stockwell as a paramedic, then, regardless of the activities he was performing when he was injured, he is entitled to the exemption provided in cl 25. That follows from the clear terms of cl 25, which do not say that a paramedic is only exempt from the 2012 amendments if injured while administering emergency health care to a person in need of such care, or that a firefighter is only exempt if injured while actually fighting a fire, or that a police officer is only exempt while attempting to apprehend a dangerous offender”.
[6] [2015] NSWWCCPD 9.
The question of whether the worker was a ‘paramedic’ was determined by the definition of that term in the Ambulance Officer’s Award. It followed that a ‘paramedic’ who met the definition of that term in the Award was an exempt worker for the purposes of cl 25 regardless of the nature of the duties being performed at the time of injury.
Deputy President Roche distinguished Ware on the basis that there was no equivalent definition of ‘firefighter’. The Deputy President stated at [121]-[122]:
“There is a critical distinction between Ware and the present matter. That is that, to be a firefighter, Mr Ware was not required, on the evidence tendered in that case, to have any particular qualifications or certifications before he could provide support at the fire front during a fire. In addition, there was no applicable definition of firefighter in the relevant legislation or employment award. Therefore, I relied on the dictionary definition.
However, in the present case, the term ‘paramedic’ is defined in the Ambulance Officers’ Award, which the parties appear to have accepted governs the employment relationship between them.
…
It follows that, in the circumstances of this case, where the Ambulance Officers’ Award, which governs the parties’ employment relationship, clearly defines the meaning of a paramedic, it is not necessary to have resort to the dictionary definition of that term. (at [130]”
The arbitrator’s decision in Stockwell No. 1 was revoked and the matter re-determined by a Senior Arbitrator. The Senior Arbitrator found that the worker was classified as an Ambulance Officer Grade 2 (that is, a paramedic) and was remunerated on that basis. This was consistent with him being a paramedic and it did not matter that he was not performing front line operational duties of a paramedic when he suffered his psychological injury. The Senior Arbitrator’s decision was confirmed in Stockwell No. 2. In that case, Keating P referred to the decision in AWU and commented:
“It is apparent that Boland J held that the amendments proposed by Mr Shoebridge were intended to exempt workers who were appointed or employed as firefighters and paramedics. However, his Honour also accepted that workers employed in other occupations, such as those to which he referred, would also be regarded as entitled to the exemption afforded by cl 25 when they were performing what could be described as ‘front line’ duties as, in that case, firefighters. I agree with his Honour’s approach and I reject Mr Flett’s submission as to the import of Mr Shoebridge’s comments.”
President Judge Keating also considered the first instance decision in Chapman-Davis v State of New South Wales[7] (Chapman-Davis No. 1) to which the respondent has referred in these proceedings.
[7] [2015] NSWIC 10.
In that case, the worker was classified as a paramedic under the relevant award. Although she was seconded to work in the Ambulance Service Health Access Coordination Unit as a “Health Advisor”, her letter of offer stipulated that her conditions of employment as a Health Advisor were those that applied under the 2010 Award and she was to be remunerated at the rate of “FTE Paramedic Specialist Year 1”. The employer argued the award classification was not determinative and it was necessary to have regard to the duties performed at the time of injury. Judge Keating commented:
“Walton J concluded that, upon the proper construction of Sch 6, the meaning of the term ‘paramedic’ denotes an employee who is classified as a paramedic by virtue of the operation of the Award. He found that Ms Chapman-Davis was such an employee and hence exempt from the provisions of the amending Act. His Honour was not satisfied that the conclusion was displaced by the fact that Ms Chapman-Davis was not performing, or rostered to perform, operational paramedic duties at the time of her injury.”
Judge Keating concluded in Stockwell No. 2:
“There is no inconsistency between AWU and Chapman-Davis. If a worker is employed as a paramedic, the exemption in cl 25 applies. If a worker is not employed as a paramedic, but from time to time is required to perform paramedic duties then they may be exempt if injured whilst performing those duties. This conclusion is consistent with Deputy President Roche’s observations in Ware and Stockwell No 1. For these reasons the maxim stare decisis does not assist the appellant in the circumstances of this case.”
An appeal against the decision of Walton J in Chapman-Davis No. 1 was dismissed by the Court of Appeal in New South Wales v Chapman-Davis[8]. In that case, Gleeson JA found:
“The constructional choice debated in this Court centred on whether the focus of the exemption is on the person’s designation or status as ‘a police officer, paramedic or firefighter’ at the time of receipt of the injury (as the respondent argued) or the person’s function, that is, the duties the person is required to perform, at the time of receipt of the injury (as the appellants argued).
If, as should be accepted, the language of the exemption is not to be construed as containing the adjectival limitation of ‘operational’, it may also be doubted that a functional limitation or qualification of the type suggested by the appellants was intended, there being no particular duties which the nominated classes of worker are required to perform to engage the exemption. The language used in the exemption, ‘... in respect of an injury received by a... paramedic’, is broad and unqualified. The better view is that whether a worker answers the statutory description in the exemption is determined by their designation or holding the status as a ‘police officer, paramedic or firefighter’ at the time of receipt of an injury, not by reference to the duties they are required to perform.”
[8] (2016) NSWCA 237.
Gleeson JA concluded:
“It should be accepted that the modification of the terms of the respondent’s contract of employment as a ‘paramedic’, brought about by her secondment to the position of Health Advisor, did not affect her classification as a ‘paramedic’ being the position to which she had been appointed under her subsisting contract of employment to which the 2010 Award applied. Since the respondent’s designation as a ‘paramedic’ was unaffected by her temporary secondment to a different position, the respondent answered the statutory description (contained within the exemption) of a person who at the time of receipt of her injury was a ‘paramedic’.”
Sackville AJA agreed with the orders proposed by Gleeson JA but commented:
“It is not necessary in this case to consider the position of an employee who is not classified as a paramedic but who, at the time of the injury, performs the duties of a paramedic. However, the conclusion that cl 25 should be read in the manner I have indicated, does not necessarily mean that a person who is performing the duties of a paramedic, but who is not classified for employment purposes as a paramedic, is outside the exemption.”

Consideration

The case law on the interpretation of cl 25 outlined above draws several important distinctions which are relevant in the circumstances of this case.
Firstly, the case law indicates that applicant’s role and that of Mr Stockwell and Ms Chapman-Davis may be distinguished insofar as a determination as to whether Mr Stockwell and Ms Chapman-Davis were ‘paramedics’ could readily be determined by the awards to which their employment were subject.
In this case, as in Ware, I have not been referred to any relevant award.
There is no evidence before me that the applicant was a member of a fire brigade and no suggestion that the Emergency Services Act applies to the applicant. If it did, the Commission would lack jurisdiction in respect of the injury.
As noted in the presidential decisions in Ware and Stockwell No. 1 and Stockwell No. 2, no relevant statutory definition of a “firefighter” exists. It was for that reason that Roche DP in Ware applied the dictionary definition, finding that a ‘firefighter’ is ‘someone whose activity or employment is to extinguish fires, especially bushfires’.
I do not accept the respondent’s submission that the approach in Ware is inconsistent with the later decisions in Stockwell No. 1 and Stockwell No. 2 or the decisions in Ms Chapman-Davies’ case, noting the factual distinction between the position of Mr Ware and the awards governing the employment of Mr Stockwell and Ms Chapman-Davies as paramedics noted by Roche DP in Stockwell No. 1.
Those cases to which the respondent refers are authority only for the proposition that if a worker is designated or classified as a paramedic (or firefighter) it is not relevant to look at what activities or tasks they were performing at the time of the injury in order for the exemption to apply. That is not to say that the worker’s activities or tasks are never relevant.
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’.
Turning to the factual evidence in this case, I accept the applicant’s uncontradicted evidence that her role was essentially office based, although on occasions she may have been required to inspect reported hazards or look at sites in connection with planning back burning activities.
Nothing in the applicant’s evidence suggests that in the course of her employment she was physically required to extinguish fires, notwithstanding that she had previously done this in her capacity as a volunteer prior to commencing employment with the respondent.
The factual evidence attached to the Reply does not indicate that that the applicant’s role was a designated firefighter role. The evidence consistently indicates that the applicant was designated an “Operational Officer (OPO) Level 1”. The list of “firefighting roles” attached to the policy document does not expressly include the role of “Operational Officer”. Although “certain staff” of State Operations, including Officers of the Operations Customer Support Centre are included on the list, there is insufficient evidence before me to satisfy me that this description encompasses the role of an Operational Officer Level 1 working in an RFS Fire Control Centre.
The role description also does not expressly indicate that the applicant was, in the ordinary course of her employment, expected to engage in firefighting activities.
The factual evidence before the Commission thus leads me to the conclusion that the applicant’s designated role was not that of a ‘firefighter’.
The applicant further submits that she did not ever perform the duties of a firefighter and did not sustain an injury in the course of or arising out of such duties. The applicant has submitted that there was no evidentiary distinction between the facts in this case and those in Favelle.
Contrary to the applicant’s submissions, I consider there are some important factual distinctions between the two cases.
The evidence before the Commission in Favelle indicated that the worker held the position of “District Coordinator” not “Operational Officer”. The role description in that case, as in this one, indicated that the worker might be required to participate in activities to protect the community from fire and similar incidents within the scope of her qualifications, when needed. Nothing in the evidence suggested, however, that the worker in Favelle was qualified to extinguish fires.
Importantly, in this case, the applicant’s role description specified that it was an “essential requirement” of her role that she hold NSW RFS Advanced Firefighter (AF) certification or equivalent. The applicant has given evidence that she had completed basic firefighter, advanced firefighter, crew leader and prescribed burn supervisor training during her time as a volunteer. The evidence indicates that the applicant was both qualified and expected to be qualified to perform firefighting activities as an essential requirement of her role.
Although I do not accept that this requirement by itself rendered the applicant’s ordinary role that of a firefighter, the position description does indicate that the applicant was expected to support operational management activities consistent with her skills and background during periods of heightened operational activity. This might involve participating on an after hour or on-call roster.
This element of the role description is consistent with the applicant’s own evidence as to her duties and pattern of work during the 2019/20 Northern and Southern NSW fires.
A separate question arises as to whether, irrespective of the applicant’s firefighting qualifications she was in fact performing firefighting duties during these periods of heightened operational activity.
As indicated above, I accept the applicant’s evidence that she was not working at the fire front during these periods and was not directly involved in extinguishing fires. This is not, however, a complete answer to the question of whether the applicant was performing the duties of a firefighter.

The respondent’s policy document 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”.
This policy definition is broadly consistent with the definition of “fighting” in connection with a bushfire in the Emergency Services Act.
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.
A finding that this work involved firefighting duties is also consistent with the findings in Ware and AWU. Like the applicant in this case, Mr Ware was not physically involved in extinguishing fires. As a mechanic, he was, however, found to be performing the duties of a firefighter during the periods when he was at a fire front. In this regard, Roche DP said:
“Though he was not a firefighter in the sense of attempting to extinguish fires with a water hose, or through some other method, his work on those occasions is incidental to the control or suppression of a fire and the respondent conceded as much. That was the conclusion reached by the Arbitrator, who applied the reasoning and conclusion in AWU to the effect that a worker who is not employed as a firefighter should be considered a firefighter immediately he or she commences to perform fire-fighting duties (AWU at [105]).”
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. Consistently with Ware and AWU, I find that whilst performing these duties the applicant was a ‘firefighter’.
The final question and a further point at which the circumstances of the applicant’s case diverge from those in Favelle is the question of whether the applicant received an injury as a firefighter.
The applicant’s own evidence and the medical evidence before the Commission indicate the applicant’s duties as a firefighter were the main and/or a substantial contributing factor to her psychological injury. In contrast, in Favelle, the worker’s experience of being cross-examined in Industrial Relations Commission (IRC) proceedings, the subsequent publication of an IRC decision, as well as a series of interactions with her colleagues in the course of the worker’s ordinary duties, which were perceived by her as hostile, were causative of the injury.
I find that the applicant in this case received the injury which is the subject of these proceedings as a firefighter. Pursuant to cl 25, the amendments made by the 2012 amending Act do not apply to or in respect of the injury. The Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of the injury as if those amendments had not been enacted.
It follows that the Commission declines to make the orders sought by the applicant.

Costs

Although the applicant was unsuccessful in these proceedings, her claim was not frivolous or vexatious, fraudulent or made without proper justification for the purposes of s 341(4) of the 1998 Act.
No submissions were made with respect to costs by the parties.
In all the circumstances, I decline to make any order as to costs.

[2023] NSWPIC 419

17 August 2023