Coroner-The death of K Brown NSW Fire Brigades Volunteer (salaried)

CORONER ALAN RAILTON

& ASSISTANT TO THE CORONER SENIOR SARGENT PHIL LLOYD
INQUEST INTO KEVIN BROWN
By Charles Henry Norville

COVER SHEET SUMMARY – 7 September 01

1. The reporting individual Charles H Norville was employed as a permanent firefighter and
retired under the Superannuation Act 1916.
2. The above reporting individual after moving to Swansea in May of 1999 applied for a
position as a retained firefighter who are not employees under the Superannuation Act
1916. In the course of his application that is denied under curious circumstances he
obtains, inter alia, the minimum attendance ratio policy.
3. The minimum attendance ratio policy for retained personnel prescribes a minimum
attendance in terms of percentage of incidents and does not indicate the maximum
commitment in terms of total hours of work in both secondary and primary employment.
4. By all account both the primary and secondary employment for retained personnel would in
all likelihood be compulsory unlike permanent members who are allowed voluntary
secondary employment at their own discretion
5. There is no Brigades policy on the safe total maximum commitment of work hours for either
retained or permanent members.
6. Retained firefighters work in the knowledge that they have no tenure of employment as
permanent members and are subject to dismissal without recourse under the Fire Brigades
Act.
7. The monitoring of safety in the brigade workplace is difficult given that the physical
parameters or the boundaries of a workplace are not clearly defined, therefore OH&S in
reality, essentially only extends to the immediate proximity of appliance and equipment.
8. The NSW Fire Brigades operates a high-risk industry and it is has become acceptable risk
to have a laisser faire approach to management supervision and remote monitoring of the
Brigades workplace with respect of OH&S practice.
9. Regardless the NSW Fire Brigades do not have a total abstinence policy to alcohol to
enable firefighters to carry out with safety the duties and function of the Fire Brigades Act
1989 with respect of hazardous material incidents.
10. Kevin Brown in all likelihood contributed to his own death as alcohol may adversely affect
brain function.
11. Retained firefighters are subject to coercion in their employment as:
(a) a compulsory attendance ratio policy that does not limit hours of work and be said to
be unreasonable in accordance with a case to be presented to the Australian
Industrial Relations Commission (AIRC)
(b) unlike permanent firefighters who generally make voluntary commitment to
secondary employment with impunity.
(c) unlike permanent firefighters who have tenure of Fire Brigades employment and
unlike retained members are not subject to instant statutory termination of their
appointment.
12 Kevin Brown responded to an incident On Jan 9 2001 and regardless of his willingness to
attend in excess of his human capacity to do so he did so acting in good faith. His
behaviour therefore cannot be called into question but was compromised by a complexity of
personal & employer liability although it was Kevin Brown and his family that paid the
ultimate cost of that liability with the lose of his life.

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 CHARLES H NORVILLE
6A Kahibah Street
SWANSEA NSW 2281
Ph: (02) 49720050
[email protected]
7 September 01

Senior Sargent/Phil Lloyd

Prosecutor assisting the Coroner (Alan Railton)
Court & Legal Services – L1
Newcastle Police Station
Cnr Church and Watt Streets
NEWCASTLE NSW 2300

Dear Sir

RE: Coroners Inquest into death of Kevin Brown, retained firefighter of deputy captain rank,
Swansea Brigade, NSW Fire Brigades.

PERSONAL DETAILS
I have lived in Swansea with my wife, since May 1999. On reading a reference to the Coroner
Alan Railton’s Inquest proceedings in the Telegraph Newspaper 30 Aug 2001 into the death of
Kevin Brown, I contacted your office 3 Sep. 01. Although I knew of Mr Brown’s death I was
unaware of the Inquest into his death and I feel my submission is out of time.

My interest stems from a concern for the safety and protection of my community. There is also my
previous employment with the NSW Fire Brigades (retired) and my current membership with Rural
Fire Service as a volunteer at Catherine Hill Bay Brigade accredited 23 March 2000 having applied
in Oct 1999.

I currently hold a security licence 1ABC having now worked casually in that industry for
approximately one year. I am unable to gain permanent employment in the security industry and
therefore I am unemployed. My retirement as a permanent firefighter excluded my application
(25.11.99) as a retained member of Swansea.

SUBMISSION DETAILS
On 25 Nov 1999 I submitted an application to be a retained firefighter for the NSW Fire Brigades
attached to Swansea Brigades and obtained the NSW Fire Brigades Statement of Duties pro-
forma at the time (advertisement 10/11/99 Annexure A2).

Although I was called to attend an interview for a retained position amongst six other persons,
when summoned into the interview room I was denied an interview on the grounds that I was a
retired permanent firefighter under the Superannuation Act 1916. Because retained personnel
were never covered under this Act and as my application had been approved to the interview
stage, I felt bemused and aggrieved to be turned away from a role as an experienced community
based firefighter.

The pro-forma, attached Annexure A1, A2, was outdated as it made reference to the repealed
Fire Brigades Regulation of 1992. Regardless my concern is that the Statement of Duties has
only a minimum attendance ratio and no maximum attendance of hours; rather there are only
approved absences, which are calculated into the accepted minimum of required attendance.

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 “The required Attendance Policy is as follows:
Policy currently dictates that the following minimum attendance ratios sustained:-
Fires Day Worker 50% of all night and weekend calls
Shift Worker 30% of all calls
Drills as per Regulation 85. The number of drills to be
Attended over a three (3) month period must not fall below 75% and must contain at least two (2) Principal
Training Officers’ Drills.

In calculation of attendance figures, account is taken of periods of approved absence, i.e., Annual Leave,
Sick Leave, etc.”

Part-time members are permitted under the Fire Brigades Standing Orders 1999 to carry out
contract work tendered by the NSW Fire Brigades either to earn personal income or income for
their attached brigade. Annexure B
As an example, Swansea Brigade’s captain John Gaye has a plumbing business and has
tendered successfully for trade work required at several brigades’ premises.

The operation of Mr Gaye’s business would have to be considered as Day Worker arrangement
and thus required under an attendance ratio policy requirement of 50% of all night and weekend
calls would apply.

There is also a coercive Clause 11 prescribed under Fire Brigades (General) Regulation 1997.
C11 (2) Termination of appointments provides:
(2) The Commissioner may terminate the services of any retained firefighter who, except when
on approved leave or other authorised absence:
(a) fails to attend drills appointed by the Commissioner or the officer in charge of the
firefighter's station for 3 consecutive months, or
(b) fails to attend the approved number or proportion of drills, fires or other incidents in any
period of 6 months.

It would be difficult for a plumber operating his own business and in many instances, whilst at his
work, to respond as a retained firefighter with all speed to emergency Brigades incidents. Mr
Gaye as Swansea brigade captain and working as a self employed plumber – AMCON plumbing –
probably in excess of 38 hrs/week, would have to undertake emergency plumbing for clients or
just being caught up in the general run of work which he would be required to fulfil.

It is reasonable to believe therefore that the Swansea brigade attendance roster would have
required the flexibility of not being strictly adhered to, especially at unforseen short notice.

It is a fact that attendance rosters are not strictly adhered to at other brigades within the NSW Fire
Brigades.

It is also a fact that the requisite for retained firefighters to reside three (3) km distance from their
attached station is not strictly adhered to at other brigades within the NSW Fire Brigades.

The Brigades are generally concerned purely with attendances and that there is someone of
sufficient rank in attendance at incidents.

The total amount of incident call outs attendances therefore would have to be shared between two
individuals of suitable rank – captain Gaye or deputy captain Brown. It would not be desirable for
a firefighter of a rank lower than deputy captain to attend a motor vehicle accident with possibly
persons trapped or a chemical spillage incident.
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 Due to the inherent risks of the area the NSW Fire Brigades have been required to recently (post
death Mr Brown) build and operate a Fire Station nearby at Doyalson.

There is no tenure of employment for casually retained personnel. The respective Minister can
dissolve a Volunteer brigade (S9 (2) Fire Brigades Act 1989) and displace it with either a
combined attendance of permanent and retained personnel or have the brigade (fire station)
manned totally by permanent firefighters with four platoons each with a station commander of
suitable rank. There are multiple of arrangements available according to need.
S9 (2) provides:
(2)The Minister may revoke such an approval at any time by notice in writing given to the
captain of the volunteer fire brigade or published in the Gazette.

History has shown that as a population of an area increases there comes a time for the
displacement of retained personnel in favour of permanent members. It is a fact that most
retained members could not be employed as permanent members because of physical fitness
criteria. See Brett A WHITTORN and the New South Wales Fire Brigades. [1998]
NSWIRComm 578 (23 October 1998)

With respect to Brett A WHITTORN and the New South Wales Fire Brigades. [1998]
NSWIRComm 578 (23 October 1998) the following industrial incident concerning, inter alia, the
transfer of an employee, Mr Whittorn from a Volunteer Brigade position to a Permanent Brigade
position was not possible. The following excerpt:
THE RECRUITMENT TEST
Ms Kerry Melinda Maddocks, the Brigades' Recruitment and EEO Officer gave evidence in relation to a
physical aptitude test attempted by Mr WHITTORN on the 19th September 1997 which was after Mr
WHITTORN had been suspended from duty. During the test Mr WHITTORN had been told that he had
failed on one particular aspect which caused him to become agitated and he used offensive language at the
scene. Ms Maddocks stated that Mr WHITTORN was extremely agitated because he believed that at the
time that he had been treated unfairly in being withdrawn from the balance of the test. She believed that at
the time Mr WHITTORN would have known that he would have had a further opportunity six weeks later to
again attempt the test.
Ms Angela Rita Trevini who is an Assistant Recruitment Officer in the Recruitment & Equal Opportunities
section of the Brigades gave evidence regarding receipt from Mr WHITTORN of notes concerning
telephone calls from Mr WHITTORN withdrawing his application for appointment as a permanent firefighter.
In one of her notes of the telephone calls Ms Trevini had noted that Mr WHITTORN had told her that he
could not attend for an interview because he had been suspended from the volunteers and on top of that he
had been caught for "break and enter". When pressed by Mr Bailey that she was mistaken in relation to her
belief that Mr WHITTORN had referred to being caught for a "break and enter" offence she was certain that
he had said this. She had also noted that Mr WHITTORN had said to her "I think I'll withdraw my
application. I'm too stressed out to continue".
The fact is that permanent members under the old Superannuation Act 1916 are at present being
retired at an extremely high rate. Long serving retained personnel would, with every likelihood, not
be given employment as permanent firefighters.

The NSW Fire Brigades is a statutory creation its process and procedures being regulated by
Statute under the Fire Brigades Act 1989 and Fire Brigades (General) Regulation 1997. Standard
Operational Procedures, In-orders and (condensed) Standing Orders are a statutory creation. On
occasion there are memorandums, which may not be official instruments of instruction.

Management supervision and monitoring at the Brigades workplace is likened to a laisser faire
approach with limited and remote intervention by the employer supervisor of say inspector rank or
via the Incident Control – the process can be identified by entries in the brigade Occurrence Book,
Captain’s diary.

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 The monitoring of safety in the brigade workplace is difficult given that the physical parameters or
the boundaries of a workplace are not clearly defined, therefore OH&S in reality, essentially only
extends to the immediate proximity of appliance and equipment. The NSW Fire Brigades operates
a high-risk industry and it is has become acceptable risk. Annexure D1, D2, an article “Some
useful heresy” from Fire Australia November 1994, demonstrates the existing culture of this high-
risk industry.

It is a prima facie that Mr Brown contributed to his own death due to the quantity of alcohol in his
blood. However there are extenuating circumstances to his seemingly reckless demeanour. The
coercive nature of his employment and the lack of OH&S monitoring by his employer can also be
seen as reckless. The lack of tenure in a competitive work environment would also be coercive.

It is also a fact that NSW firefighters attend, as a duty, hazardous material incidents that require
with respect to policy (in recognition of statute) no complete abstinence from alcohol, which can
have a serious affect on the chemistry of firefighters. With respect of Brigades statute –
C17(1)(a) Unacceptable behaviour is only concerned with behaviour and provides that a firefighter
must not (a) come on duty while under the influence of alcohol or a drug, or…..

Kevin Brown’s statutory employment was coercive and regardless of his willingness to attend in
excess of his human capacity to do so there is no present statutory guideline in limiting his hours
of work – except under OH&S legislation.

The coercion of the Brigades Attendance Ratio Policy of minimum percentage attendance gives
no consideration to the total maximum hours of work commitment.

Because of Mr Brown’s rank of deputy captain he would have been duty bound to attend a
maximum amount of incidents and perhaps there was also the need to compete with other
prospective members in this regard not forgetting the coercion of the lack of tenure of
employment.

The prospect of reemployment as a permanent firefighter was an illusive prospect not only for
Kevin Brown but also for other members of his Swansea brigade.

Secondary employment is an ongoing and widespread practice amongst the NSW Fire Brigades
permanent full-time members. This secondary job work ethic, known as ‘quarrying’, is a voluntary
work ethic and is permitted by the NSW Fire Brigades and there is no monitoring of the total hours
of work commitment for these permanent members. Permanent firefighting secondary work ethic
is voluntary

However unlike permanent members, the retained part time casual members are subject to
compulsory attendance ratio with respect of their primary employer AND their brigade
employment. But like permanent members there is also no monitoring of the total maximum hours
of work commitment for these retained members.

The Brian Muirhead report prepared for Emergency Services Minister Mr Bob Debus titled
Workers Compensation and Rehabilitation in the NSW Fire Brigades Nov 1995 NB page 10 on
(Annexure C) Other Employment states inter alia:
“A matter peculiar to firefighters is that they are permitted by Regulation to engage in
another occupation.” Reference is made to the By Laws (By Law 80) made under the Fire
Brigades Act 1909 and current 1989 Act Regulation Cl 32.

The Fire Brigades Secondary Employment Policy January 2001, expresses moot policy on
conflicts of public interest and safety. It is moot because the policy document states “for
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 employees under the Public Sector Management Act 1988” –
Section 66 (2) Fire Brigades Act 1989 exempts firefighters from the PSM Act.

The Policy document in question stems from the “NSW Government Personnel Handbook and the
NSW Premier’s Department Model Code of Conduct for NSW public sector agencies”. The Code
may have no effect on firefighters who serve the Crown not the Government –
S69 (2) Fire Brigades Act 1989 “A member of a fire brigade is, when acting as such a member, to
be considered to be employed by the Government of New South Wales in the service of the
Crown.”

It is certainly not in the public interest nor socially responsible to have a laisser faire approach to
the safety of reasonable working hours.

There are currently submissions being presented to the Australian Industrial Relations
Commission (AIRC) in respect of a case on reasonable working hours.

S78 Fire Brigades Act 1989 - Protection from liability provides:

A matter or thing done by the Minister, the Commissioner, any member of staff of the Department,
any member of a fire brigade or any person acting under the authority of the Commissioner does
not, if the matter or thing was done in good faith for the purposes of executing this or any other
Act, subject such a person personally, or the Crown, to any action, liability, claim or demand.

On Jan 9 2001 Kevin Brown left his home to respond to an incident that required his attendance,
and regardless of his willingness to attend in excess of his human capacity to do so he did so
acting in good faith. On this night Kevin Brown’s liability under brigades statute of performance
was severely tested under his likely influence of alcohol and compromised his exemplary good
faith behaviour and he paid with his life, and his family’s loss, and the community loss a valued
citizen.

Yours sincerely

Charles H Norville

ANNEXURE A1

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 ANNEXURE 2

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 ANNEXURE B
NSW Fire Brigades Standing Orders

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 ANNEXURE C
Workers Compensation and Rehabilitation in the NSW Fire Brigades
November 1995 Report by Brian Muirhead for Hon Bob Debus MP

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 ANNEXURE D1

ANNEXURE D2

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